Coons: Would you vote to overturn Morrison?
Kavanaugh: I won't say more than what I said before.
Coons: I think what you said before was clear.
Coons: Earlier today, you said you could talk about long-settled cases. Could you do that about Humphrey's Executor, which has been settled for 83 years.
Coons: In Kavanaugh's dissent in PHH, Kavanaugh went out of his way to criticize Humphrey's Executor, which upheld constitutionality of independent agencies.
Coons: Is it well-reasoned, well-settled law?
Kavanaugh: It's well-settled precedent.
Coons: It's troubling to me that you can't say it was correctly decided.
Coons: We have a series of recent public statements about your enthusiasm for overturning Morrison, you have a recent decision on the DC Circuit that would give the president more power, and we might see a whole series of protections at risk.
Coons: Can Congress restrict the removal of any official in the executive branch?
Kavanaugh: Under Supreme Court precedent, Congress has done this.
The reason Kavanaugh and, he suggests Kagan, felt free to comment about Morrison was that it was a one-off case about a statute that no longer exists.
Kavanaugh: The premise under which I spoke was that Morrison was a one-off case about a statute that doesn't exist any more.
Coons: I'm concerned about not getting a clear answer.
Coons: In PHH, Kavanaugh embraces theory of "unitary executive," that president has all the power in the executive branch.
Kavanaugh: Did not cast doubt on Humphrey's Executor in the PHH case.
Coons: In 1998, you said that it makes no sense to have independent counsel investigating president. Is that still your view?
Kavanaugh: Independent counsel is distinct from special counsel system.
Coons: You called it constitutional dubious for a prosecutor to investigate the president.
Kavanaugh: I've never taken a position on constitutionality.
A protester is tugged in opposite directions by the police, and helpfully asks, "Which way?"
Kavanaugh: I will have a completely open mind on the constitutional argument.
Kavanaugh: He has demonstrated a willingness to change his mind.
Coons: In several contexts in several ways, you've made a constitutional point.
Kavanaugh reiterates that he sees Morrison v Olson as being only about the independent counsel statute. As to special counsels, he has never taken a position on the investigation and indictment of a sitting president. The justice department has taken the position that an investigation and indictment has to be deferred. Not saying he agrees or disagrees with that.
A lot of things would have to happen before this hypothetical would come to pass, and if it did, Kavanaugh has not taken a position on the constitutional issue.
Coons: I don't see the independent counsel as obscure to today's issues. I think the reason you reached out and volunteered that you wanted to overturn Morrison because of the view of the power and authority of the executive branch.
Kavanaugh is going over a few points, including idea that he's never taken a constitutional position on the investigations issue.
Coons: What if a presidential aide commits assault?
Kavanaugh: I have not said anything approaching that broad description.
Coons asks to obtain four committee-confidential records so he can question Kavanaugh about them.
Next up is Ben Sasse, Republican of Nebraska.
Sasse is quoting some of the protestors who were saying Kavanaugh would be a puppet for the president and that presidents shouldn't have the power to do whatever they want.
Sasse wouldn't vote for Kavanaugh if he thought confirming him would produce those results
Explain limits on executive power, asks Sasse
Kavanaugh: President is elected, serves a limited term, is subject to the law, as made clear in Federalist 69, doesn't have power to make the laws or adjudicate disputes.
Even in the national security context, the president is subject to the law, citing Youngstown.
Congress has substantial powers related to war and the military.
President has very limited power to sidestep Congress in that area. Congress doesn't always choose to grant executive broad discretion.
President is subject to civil suits and the criminal process -- the only question is the timing.
Power of the purse belongs to Congress
Sasse: Hypothetical, president decides will drive himself/herself and kills someone in a car accident. Is the president immune from prosecution?
No, the only question is when the process can go forward, either civil or criminal.
Civil process can occur while president is in office, per Clinton v Jones; criminal process may need to be deferred until president is out of office, as Justice Department has stated.
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