“Kavanaugh’s view on independent counsels has nothing to do with special counsels or Mueller’s probe and, in fact, the two types of federal investigations are completely different.”
Democrats Cry Foul, but Brett Kavanaugh’s View of Independent Counsels Is Unrelated to Mueller Probe, Experts Say
By Alexandra Hutzler
July 18, 2018
Donald Trump’s Supreme Court nominee Brett Kavanaugh dislikes independent counsels and told a group of conservatives in 2016 that he wanted to “put the final nail” in the ruling that upheld their constitutionality.
Now, leading Democrats including Chuck Schumer and Cory Booker are using Kavanaugh’s statement to spark an outcry before his Senate confirmation hearing. The senators have argued that if he were appointed to the Supreme Court, Kavanaugh would aim to declare Robert Mueller’s special counsel investigation on Russian election meddling unconstitutional.
But law experts told Newsweek that Kavanaugh’s view on independent counsels has nothing to do with special counsels or Mueller’s probe and, in fact, the two types of federal investigations are completely different.
“Special counsels are an entirely different creature,” Jonathan Turley, a law professor at George Washington University, told Newsweek. “They are special but they are not independent.”
What Turley means is that the 1988 ruling that Kavanaugh is referring to gave a large amount of freedom to the counsel in its investigation, with barely any rules or oversight in how the counsel proceeded with its examination. Special counsels, on the other hand, are regulated and consistently checked on by the attorney general within the Department of Justice.
While the expert says that there is “no doubt that this is likely to be a significant subject” in Kavanaugh’s confirmation hearing, it is important lawmakers recognize these differences before making assumptions that Kavanaugh would automatically deem Mueller’s investigation unconstitutional.
David Fontana, a law professor at George Washington University, agreed with Turley and said that there is no way to possibly say that Kavanaugh would automatically view the Mueller probe as unconstitutional. Even if a five-justice majority featuring Kavanaugh were to overrule the Morrison v. Olson decision it is still likely that Mueller’s investigation will be found constitutional, Fontana told Newsweek.