Brett Kavanaugh might soon get the chance to shut down the Mueller investigation

Thanks to a lawsuit filed by a conservative think tank and Roger Stone associate.

Supreme_Court_Justice_Brett_Kavanaugh_Swearing-In_Ceremony
Brett Kavanaugh getting sworn in by retired Associate Justice Anthony Kennedy | Official White House Photo by Joyce N. Boghosian

Donald Trump may not have to wait long for his investment in Brett Kavanaugh to start paying dividends.

A lawsuit challenging the legitimacy of special counsel Robert Mueller’s Russia investigation was heard on Thursday by the U.S. Court of Appeals for the District of Columbia. Should the court rule in Mueller’s favor, the case could soon be making its way to the Supreme Court. If it gets that far, Kavanaugh would likely cast the tie-breaking vote in determining the investigation’s fate.

And given Kavanaugh’s previous writings and comments on criminal investigations into sitting presidents, it’s not much of a mystery as to how he would decide. “I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office,” he wrote in a 2009 article for the Minnesota Law Review. “We should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions.”

More pointedly, Kavanaugh told an audience at a discussion hosted by a conservative think tank that if given the chance he would “put the final nail in” Morrison v. Olson, the 1988 Supreme Court decision that upheld the constitutionality of the Ethics in Government Act of 1978, the law that established the Office of the Independent Counsel in the wake of Watergate. In 2013, he also asserted that it’s a “traditional exercise” for presidents to ignore laws that they view as unconstitutional.

Of course, now that Attorney General Jeff Sessions is out and his chief of staff Matthew Whitaker is in, Mueller’s investigation might not even last long enough to get to the Supreme Court. Sessions’ ouster means that Deputy Attorney General Rod Rosenstein is no longer overseeing the probe, while the new Acting Attorney General Whitaker is a known critic. But the Supreme Court would likely serve as a backstop should Whitaker not be able to do Trump’s bidding for whatever reason (for example, if Senators Jeff Flake (R-Ariz.) and Chris Coons (D-Del.) manage to get legislation passed to protect Mueller, as they are currently trying to do).

What’s the lawsuit about?

The suit was filed in September by Andrew Miller, a longtime associate of former Trump campaign advisor Roger Stone. In August, Miller was held in contempt of court by U.S. District Chief Judge Beryl Howard for refusing to comply with a subpoena to testify before a grand jury as part of the Mueller investigation. He is appealing the decision on the basis that the investigation is unconstitutional and he, therefore, cannot be compelled to testify.

Specifically, Miller’s attorney Paul Kamenar argued that only a Senate-confirmed member of the Justice Department has the authority to appoint a special counsel, which Deputy Attorney General Rod Rosenstein, who appointed Mueller, is not. Under normal circumstances, (now former) Attorney General Jeff Sessions would have made such an appointment, but Sessions recused himself from overseeing the Russia probe because of his involvement with the 2016 Trump campaign, leaving Rosenstein to take the reigns. (That Rosenstein technically will no longer be overseeing the investigation has no bearing on whether or not he initially had the authority to appoint Mueller.)

What sparked the lawsuit?

Miller’s imbroglio with the Mueller investigation can ultimately be traced back to Roger Stone’s furtive misdeeds during the 2016 presidential campaign. Stone is an infamous political provocateur who has been a fixture in GOP circles for decades. Often referred to as a “dirty trickster” in the media, Stone began his career in politics with the 1972 Nixon campaign and later worked for other prominent Republicans such as Ronald Reagan and Bob Dole. He also co-founded the lobbying firm Black, Manafort & Stone in 1980 alongside Paul Manafort. (Yes, that Paul Manafort.)

More recently, Stone served as an informal political advisor to his longtime friend and colleague Donald Trump during the 2016 campaign. In that capacity, Stone, true to his epithet, sought damaging information on Hillary Clinton through private communications with both WikiLeaks and Guccifer 2.0—the internet persona that claimed responsibility for the hacking of Democrats’ emails, later identified by Mueller as an agent of Russian intelligence. (As of yet, there is no definitive evidence that Stone did this at the behest of Trump or his campaign.)

Understandably, Stone’s “dirty tricks” positioned him squarely in the crosshairs of Mueller’s investigation. Consequently, investigators have summoned several of Stone’s friends and associates over the past few months to testify before a grand jury, and all but one of them have complied. The one holdout is Miller, a young GOP operative who has been in Stone’s orbit for over a decade. He has been compelled to testify on multiple occasions and has refused each time.

Ulterior Motives

Though Miller is the one who filed the suit, in a way his predicament is just a pretext for a much deeper crusade to quash the Mueller investigation. The National Legal and Policy Center, a conservative think tank known largely for mounting legal challenges against Democratic organizations and politicians, has been searching for a way to fight the investigation in court since May. NLPC CEO Peter Flaherty saw just such an opportunity in Miller’s ordeal. Per ABC News:

“I thought it would be worth pursuing,” Flaherty told ABC News. “So I was thinking it’d be a good project for the National Legal and Policy Center.”

Flaherty said he reached out to longtime Stone associate and former Trump campaign official Michael Caputo, who he knew had met with special counsel investigators earlier that month.

“I asked [Caputo] if he knew anybody who might want to serve in this role and he said ‘as a matter of fact, there’s a guy named Andrew Miller; let me give him a call,’” Flaherty told ABC News. “He called Andrew. Andrew had a positive response.”

The NLPC is footing the bill for Miller’s legal costs.

What happens if the Supreme Court rules that the Mueller investigation is unconstitutional?

What’s certain is that such a ruling would stop the investigation in its tracks and Mueller would be out of a job. But its still unclear what would happen to Mueller’s existing findings. In his interview with conservative radio talk show host Michael Caputo in September, Kamenar speculated that aside from the guilty pleas of Michael Flynn, Rick Gates, and Paul Manafort, all of Mueller’s work would be stricken from the record.

But that’s just one man’s opinion. Now that the Democrats have taken back the House of Representatives, it’s possible that Adam Schiff (D-Calif.), the incoming chair of the House Intelligence Committee, would be able to have Mueller testify before Congress. From there, House Democrats could run with whatever information they get from him.

Was this all part of Trump’s plan?

If I had my tinfoil hat on, it wouldn’t be too hard to imagine the idea for this lawsuit stemming from the machinations of Trump and Stone in some smoke-filled back room. But we need not entertain farfetched conspiracy theories to see the sinister motives at play.

That the new associate justice holds such deferential views on executive power certainly was not lost on Andrew Miller and his legal team. “[Kavanaugh] would be a good ally because he has talked about these cases before in terms of presidential power and also limiting the power of the government in many cases and he’s also written about this very issue of the constitutionality of the independent counsel,” Kamenar told Caputo.

Nor were they lost on Donald Trump. Kavanaugh’s comments and writings were widely discussed long before Trump nominated him to replace retiring Supreme Court Justice Anthony Kennedy. And it was reported that while they were deliberating he and his team looked at Kavanaugh’s comments on indicting a sitting president.

Trump had every reason to pick a different nominee but pushed forward anyway

It’s worth noting that when Trump first named Kavanaugh to his shortlist of potential nominees, he got a lot of pushback from Republican elite. For example, Senate Majority Leader Mitch McConnell warned him that of all the judges under consideration, Kavanaugh would have a particularly hard time getting through the confirmation process.

It’s also worth noting that Kavanaugh was a historically unpopular Supreme Court nominee—and that was before Christine Blasey Ford came forward with her allegations of sexual assault. The last two nominees who had such low approval ratings (Robert Bork in 1987 and Harriet Myers in 2005) both had their nominations withdrawn by the president at the time. But Kavanaugh’s approval ratings didn’t really seem to bother Trump.

Meanwhile, the other judges on his shortlist were perfectly competent and more than sufficiently conservative for his base. All the candidates were thoroughly vetted by the conservative groups the Heritage Foundation and the Federalist Society, and any one of them would have dutifully upheld the Republican agenda on the bench.

Despite these obstacles, Trump decided it was worth fighting an uphill battle to get his guy onto the court. But why?

It could be a coincidence that of all the candidates Trump was considering Kavanaugh was the only one to have expressed any opinion about investigating a sitting president. It could also be a coincidence that his handpicked Acting Attorney General Matt Whitaker happened to make several comments in the press lambasting the Mueller investigation. It could also be a coincidence that James Comey happened to be leading the investigation when Trump fired him in 2017.

Trump may not have been involved in hatching this particular lawsuit, but surely he was aware of the possibility that, eventually, some legal action against the investigation would find its way to the Supreme Court. Trump has been fighting battles against the Russia probe on multiple fronts throughout his tenure. And as he takes further action to turn the screws on Mueller through his own the executive branch, he can rest assured that he has a failsafe over in the judiciary.

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