'How About Pres. Obama's Drone Strikes?': Kavanaugh Brings Up Past Presidents With Trump's Lawyer

Justice

Kavanaugh as you've indicated this case

has huge implications for the presidency

for the future of the presidency for the

future of the country in my view um

you've referred to the department a few

times as having supported the position

who in the department is it the

president the Attorney

General uh the solicitor general of the

United States uh part of the way in

which the special counsel functions is

as a uh component of the Department of

Justice the regulations Envision that we

reach out and consult and on a question

of this magnitude that involves equities

that are far beyond this prosecution as

the questions of the court so it's a

solicitor general yes okay um second uh

like justice Gorsuch uh I'm not focused

on the Here and Now of this case I'm

very concerned about the future uh and I

think one of the Court's biggest

mistakes was Morrison versus Olsen MH uh

uh I think that was a terrible decision

for the presidency and for the country

and not because there were bad people uh

who were independent councils but

President Reagan's Administration

President Bush's Administration

President Clinton's administration were

really uh hampered yes uh in their view

all three by the uh independent Council

structure and and what I I'm worried

about here is that that was kind of

let's relax article to a bit for the

needs of the moment and I'm worried

about the similar kind of uh situation

applying here that was a prosecutor

investigating a president in each of

those circumstances and someone picked

from the opposite party the current

president uh and uh usually uh was how

it worked and and Justice Scalia wrote

that the the fairness of a process must

be adjudged on the basis of what it

permits to happen Not What It produced

in a particular case you emphasized uh

many times regularity the Department of

Justice and he said uh and I think this

applied to the independent Council

system and it could apply if presidents

are routinely subject to investigation

going forward one thing is certain

however it involves investigating

perhaps Prosecuting a particular

individual can one imagine a less

Equitable manner fulfilling the

executive responsibility to investigate

and prosecute what would the reaction be

if in an area not covered by the statute

the justice department

posted a public notice inviting

applicants to an assist in an

investigation and possible prosecution

of a certain prominent person does this

not invite what Justice Jackson

described as picking the man and then

searching the law books or putting

investigators to work to pin some

offense on him to be sure the

investigation must relate to the area of

criminal offense specified uh by the

statute uh but that has often been and

nothing prevents it from being uh very

broad I paraphrased at the end because

it was referring to the judges yes um

that's the concern going forward is that

the the system will when when former

presidents are subject to prosecution

and the history of Morrison versus Olsen

tells us it's not going to stop it's

going to it's going to cycle back and be

used against the current president or

the next president or and the next

president and the next president after

that all that I want you to try to allay

that concern why is this not Morrison V

and Redux if we agree with you well um

first of all the the independent Council

regime did have many structural features

that emphasized of Independence at the

expense of accountability we don't have

that regime now but even under that

regime Justice Kavanaugh I think if you

look at Lawrence Walsh's report on Iran

Contra I think this goes to a very

fundamental point for the court to

consider

uh uh judge Walsh said I investigated

these matters the proof did not nearly

come close to establishing criminal

violations so we've lived from Watergate

through the present through the

independent Council ERA with all of its

flaws without these prosecutions having

gone off on a runaway train well I think

President Reagan President Bush and

President Clinton whether rightly or

wrongly thought oppos thought contrary

to what you just said I think nobody

likes being investigated for a crime but

it didn't result in the kind of

vindictive prosecutions that I think

your honor is is Raising as a

possibility yeah we we have a different

system now I think there was a consensus

throughout Washington that there were

flaws in the independent Council system

it lapsed we now are inside the justice

department with full accountability

resting with the attorney general so the

special counsil regulations now don't

operate the way that the independent

Council regulations do and I this Court

would have something to say about it I

think if uh the independent Council

statute were revived I'm not sure that

anybody is in favor of that right now I

was just saying this is kind of the mirr

image of that is one way someone could

perceive it but I take your point about

the different structural protections

internally and like justice scolia said

let me I do not mean to suggest anything

of the sort in the present case I'm not

talking about the present case uh so I'm

talking about the future uh SEC another

point you said um uh uh talked about the

criminal statutes it's very easy to

characterize presidential actions as

false or misleading under vague statutes

so um uh president Lyndon Johnson

statements about the Vietnam

War say something's false uh turns out

to be false that he says about the

Vietnam War 371 prosecution so after he

leades office I think not but I we need

this is an area that I do think that

merits some serious and nuanced

consideration statements that are made

by a president uh to the public are not

really coming within the realm of

criminal statutes they've never been

prosecuted I realize that the court can

say well what if they were and and then

I think you get to what I would regard

as a hard constitutional question that

would probably guide the court away from

trying to resolve today although I do

think it's very different from our case

and distinguishable in important ways

but you're dealing here with two

branches of government that have a

Paramount interest in the integrity and

freedom of their interactions with each

other on the oneand the president of

course should be very free to send

usually his uh cabinet officials and sub

cabinet officials to testify to Congress

to provide them with the information

needed to enact legislation and to make

National policy and we're very concerned

about anything that would tramel that on

the other side of the equation Congress

has a compelling interest in receiving

accurate information and at the very

least not information that is

intentionally and knowingly false that

would pollute the legis how about U you

I think came up before President Ford's

pardon uh very controversial in the

moment yes hugely unpopular probably why

he lost in 76 yes uh now looked upon as

one of the better decisions in

presidential history I think by most

people um if he's thinking about well if

I grant this pardon to Richard Nixon

could I be investigated myself for

obstruction of justice on the theory

that I'm interfering with the

investigation of Richard Nixon so this

would fall into that small core area

that I mentioned to Justice Kagan and

Justice Gorsuch of uh presidential

responsibilities that Congress cannot

regulate how about President Obama's

drone strikes so the the office of legal

counil looked at this very carefully and

determined that number one the federal

murder statute does apply to the

Executive Branch the president wasn't

personally carrying out the strike but

the aiding and abetting laws are Broad

and it determined that a Public

Authority uh exception that's built into

statutes and that applied particularly

to the murder statute because it talks

about unlawful killing did not apply to

the Drone strike so this is actually the

way that the system should function the

Department of Justice takes criminal law

very seriously it runs it through the

analysis very carefully with established

principles it documents them it explains

them and then the president can go

forward in accordance with it and there

is no risk of prosecution for that

course of Activity thank you for your

answers