Prominent Democrats have slammed Supreme Court nominee Brett Kavanaugh for supporting an end to the independent counsel statute, even though they themselves backed precisely the same proposal decades ago.
Kavanaugh has drawn criticism for a 2016 video in which he said he would “put the final nail” in a 1988 Supreme Court ruling that upheld the creation of an independent counsel, responsible for investigating wrongdoing by the executive branch and therefore independent of it (unlike, for example, the Attorney General). It was under the auspices of this office that Ken Starr investigated then-President Bill Clinton’s wrongdoing in the Whitewater affair—a project on which Kavanaugh, then a young lawyer, worked.
The constitutionality of the independent counsel was upheld in 1988’s Morrison v. Olson, but Kavanaugh and other critics have long-pointed to Justice Antonin Scalia’s lone dissent as an argument against the office. Scalia argued in the dissent that the independent counsel violated the fundamental constitutional principle of separation of powers by appropriating the power to prosecute—an executive prerogative stretching back to English common law—from the president, in whom all executive power is vested.
The question of investigating wrongdoing by the president has taken on new significance, given the inquiry led by Robert Mueller into Russian meddling in the 2016 election. Importantly, special counsel Mueller was not appointed under the independent counsel statute, which lapsed in 1999. He was rather appointed by Deputy Attorney General Rod Rosenstein, and acts therefore under the auspices of the Department of Justice: a component of the executive branch.
This fact hasn’t stopped Democrats from tying Kavanaugh’s criticism to Mueller’s investigation, darkly suggesting that his opposition to the unrelated statute makes him unfit to rule on any matters pertaining to the investigation.
Senate Minority Leader Chuck Schumer (D., N.Y.), in a Thursday floor speech, said that the comments were “deeply troubling” and called on Kavanaugh to recuse himself from any matters involving the Mueller probe before the Supreme Court. Senate Minority Whip Dick Durbin (D., Ill.) told CNN that his opinions on executive power ought to be “a key part of the questioning of Brett Kavanaugh.”
Schumer and Durbin in the past explicitly supported the end of the independent counsel statute.
The Associated Press reported in 2003 that Schumer had previously backed ending the independent counsel statute, saying that year that his support for better investigation of the leaks from the Bush administration’s CIA did not change his opinion on the matter.
Durbin, meanwhile, explicitly endorsed allowing the independent counsel statute to lapse in 1999. The Herald News reported in 1998 that Durbin explicitly said he would not vote to reauthorize the statute, according to an extract of an article seen by the Free Beacon.
He called for getting rid of the statute in 1999, and favored returning the independent counsel’s discretion to the Executive. In a hearing before the Senate Committee on Government Affairs that year, Durbin said that he had made a mistake in voting to reauthorize the office in 1994, and pushed to do away with it.
“Our form of government is grounded on the premise that unchecked power is tyranny. The independent counsel is unchecked, unbridled, unrestrained, and unaccountable,” he said at the time, an opinion strongly reminiscent of Scalia’s own stance in his Morrison dissent.