Derek Muller, "A Future Justice Kavanaugh and Executive Privilege" -- Law and Liberty

July 3, 2018 | An article by Professor Derek Muller, "A Future Justice Kavanaugh and Executive Privilege," has been published in Law and Liberty.  The article examines Judge Brett Kavanaugh's views on executive power and criminal investigations of the executive branch.

Excerpt from "A Future Justice Kavanaugh and Executive Privilege":

Kavanaugh, currently a judge on the District of Columbia Circuit, is a widely discussed candidate to replace Justice Anthony Kennedy on the United States Supreme Court. Kavanaugh has worked extensively in the White House for President George W. Bush. That might lead one to believe that he has a strong view of executive power. But it's an earlier career experience that may have shaped Kavanaugh's views, and they are not views that tend to defer to executive power.

To be sure, the media is right on one thing: Kavanaugh has written that criminal investigations of the president can be distractions and should be circumscribed. In other areas, however, Kavanaugh has advocated for breadth in the power to investigate the president, particularly when it comes to denying to the president claims of privilege.

In 1998, Kavanaugh wrote an article for the Georgetown Law Journal on investigations surrounding the president. He lamented, "One major cause of delay in independent counsel investigations has been the repeated assertion of various executive privileges." He proposed that Congress enact a rule that the president "may not maintain any executive privilege, other than a national security privilege, in response to a grand jury or criminal trial subpoena sought by the United States."

Kavanaugh's views were developed at a time when he worked for independent counsel Ken Starr during the investigation of President Bill Clinton. And these views are consistent with his work as an advocate.