U.S. Supreme Court nominee Brett Kavanaugh detailed his views of presidential powers during his confirmation hearing Thursday, amid more questions centered on President Donald Trump.
Senate Minority Whip Dick Durbin (D-Ill.) argued that the question of executive power is especially important considering who is president. Trump has faced allegations of illegal election activities and relentless cries from critics accusing him of corruption.
Kavanaugh (pictured above) has been accused of dismissing restrictions on presidential power in Morrison v. Olson, and when discussing former President Barack Obama’s making certain illegal immigrants a very low priority for enforcement in 2011.
“That is a traditional concept, prosecutorial discretion, that is recognized in the executive branch,” Kavanaugh said. “The limits of it are uncertain. That has risen in the immigration context under President Obama. There are debates on what the limits are; they aren’t finely determined. But the basic concept of prosecutorial discretion was all I was referring to there.”
The U.S. Supreme Court determined that the Independent Counsel Act was constitutional when it ruled on Morrison in 1988. Kavanaugh wrote afterward that the case was wrongly decided. Durbin argued that his views on the matter are concerning because special counsel Robert Mueller is investigating the president.
Kavanaugh responded by pointing out that this case didn’t involve the special counsel system. The traditional special counsel system is still in existence, while the independent counsel system expired in 1999. He added that it also doesn’t impact the precedents that limit whom the president can fire, as indicated by the case of Humphrey’s Executor v. United States.
“I made clear in my writings that a court order that requires a president to do something or prohibits the president from doing something under the constitutional laws of the United States is the final word in our separations of powers system,” Kavanaugh said. “That’s Cooper v. Aaron, that’s Marbury v. Madison, and that’s United States v. Richard Nixon. That’s an important principle.”
Humphrey’s Executor set limits on removing certain executive officials for purely political reasons within an administrative body Congress has created. Former President Franklin Delano Roosevelt, at the time, tried firing William Humphrey, a member of the Federal Trade Commission, for not supporting his New Deal policies.
Kavanaugh has drawn negative attention for concluding a decade ago that presidents are substantially immune from criminal investigation or prosecution while in office. He expressed his views in a Minnesota Law Review article. Senate Democrats are concerned the president could abuse his office to overcome the legal issues facing him.
Mueller has been leading the investigation, which is looking into whether the president or his associates colluded with Russian interests during the 2016 campaign. The investigation has also swept up former associates of the president for mostly unrelated crimes.
Paul Manafort, a former campaign manager, was convicted on eight counts related to bank and tax fraud. Michael Cohen, a former personal lawyer, pleaded guilty to facilitating two payments to keep women quiet about alleged affairs with Trump.
Senate Judiciary Committee ranking member Dianne Feinstein (D-Calif.) responded to a conviction and guilty plea by issuing a letter, alongside the other nine Democrats on the committee, asking for the first hearing to be delayed.