September 04, 2018

Judge Kavanaugh and United States v. Nixon

Judge Kavanaugh frequently highlighted United States v. Nixon as one of the “greatest moments in American judicial history.”
Judge Kavanaugh hailed Nixon as one of “the greatest moments in American judicial history”
·       In 1998, Judge Kavanaugh wrote that Nixon “reflects the proper balance of the President’s need for confidentiality and the government’s interest in obtaining all relevant evidence for criminal proceedings” (see page 206 of Brett M. Kavanaugh SJQ Appendix 12(a)).
·       Judge Kavanaugh also wrote that “there is no reason to revisit” Nixon (See page 215 of Brett M. Kavanaugh SJQ Appendix 12(a)).
·       In a 2016 speech, Judge Kavanaugh said:
“As a judge, you must, when appropriate, stand up to the political branches and say some action is unconstitutional or otherwise unlawful. Whether it was Marbury, or Youngstown, or Brown, or Nixon, some of the greatest moments in American judicial history have been when judges stood up to the other branches, were not cowed, and enforced the law” (See page 80 of Brett M. Kavanaugh SJQ Appendix 12(a)).
Judge Kavanaugh successfully relied on Nixon in the Independent Counsel’s investigation
·       As a prosecutor in the Independent Counsel’s investigation, Kavanaugh cited Nixon in successfully arguing that President Clinton could not invoke privilege to withhold documents in a criminal investigation (See In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998) and In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997). Descriptions available on pages 83 and 84 of Brett M. Kavanaugh Committee Questionnaire).
Judge Kavanaugh suggested Congress should codify & strengthen Nixon holding
·       In a 1998 article, Kavanaugh advocated for enacting a law to ensure the executive’s compliance with criminal subpoenas:

“The courts have rightly rejected the executive's attempt to conceal [relevant] information, and Congress should codify those results to prevent future Presidents from trying the same gambit.(See page 207 of Brett M. Kavanaugh SJQ Appendix 12(a)).