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EXECUTIVE PRIVILEGE

Trump’s Supreme Court pick questioned the Nixon decision. It could matter for Trump.

AP Photo/J. Scott Applewhite
The Supreme Court nominee might’ve made a different call.
By Ashley Rodriguez
Published Last updated This article is more than 2 years old.

Brett Kavanaugh, Donald Trump’s pick to replace Anthony Kennedy on the US Supreme Court, is a strong believer in the power of the presidency. So much so that he once wondered if the court erred in forcing former US president Richard Nixon to turn over the Watergate tapes.

Nixon was forced by a unanimous Supreme Court decision (pdf) in 1974 to turn over tape recordings from his offices that revealed he was involved in a cover-up tied to the Watergate break-in. Nixon resigned about two weeks later.

Kavanaugh might have made a different call. During a 1999 roundtable discussion with lawyers, Kavanaugh questioned whether the decision, which limited the president’s power to withhold information in a criminal trial, set the right precedent, the Associated Press (AP) reported.

“Maybe Nixon was wrongly decided—heresy though it is to say so,” Kavanaugh said during the discussion.

The AP reviewed a transcript of the roundtable that was published in a 1999 issue of the Washington Lawyer, which was submitted to the Senate Judiciary Committee along with other documents as part of the confirmation process. In the transcript, Kavanaugh said:

Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official… Maybe the tension of the time led to an erroneous decision.

He reportedly reiterated that point three times during the discussion.

The remarks show how highly Kavanaugh values the authority of the executive branch, and how he might respond if Trump or another president were to find themselves in a similar position—for instance, if special counsel Robert Mueller were to subpoena Trump to testify on Russian meddling in the 2016 US election.

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