Kavanaugh’s nomination in 2018 ignited one of the most partisan moments of the Trump presidency. This spring, Kavanaugh privately raised a way out of a separate battle involving the President who appointed him and the Democratic-run House of Representatives, which had been investigating Trump on multiple fronts.
The House had impeached Trump in December 2019 but had then seen its charges rejected in a Senate acquittal of Trump in February.
The unrelated Supreme Court dispute known as Trump v. Mazars began after the US House had directed subpoenas at Trump’s accountants Mazars USA and two of his banks, Capital One and Deutsche Bank. Trump’s lawyers argued the subpoenas lacked any valid legislative purpose.
Kavanaugh raised a theory known as the “political question” doctrine, which holds that certain disputes are more properly worked out between the political branches rather than by judges. He theorized that the case might be left to the usual back-and-forth of the White House and Congress to figure things out.
His approach would provide an off-ramp for one of the imminent confrontations between Trump and the court. . . .
During one of the justices’ private teleconferences, according to three sources, Kavanaugh convinced his colleagues to ask for supplemental filings on whether the political-question doctrine applied or there was any other reason the justices could not decide the case.
The discussion among the justices, sources said, concerned the practicalities of whether the issue Kavanaugh had raised would be relevant to the case involving private parties and whether it was prudent to make the late-hour request.
But there was a larger canvas that captured the attention of commentators once it became known that justices were mulling the idea as they asked for the new filings in April. Kavanaugh and other conservatives have long sought to bolster executive power, and if the high court were to decide that the House subpoena case was too political to resolve, it would dramatically undermine congressional power. Congress’ investigative committees would be unable to turn to courts to enforce orders against the President and his people.
Yet in this particular controversy, involving Trump’s accountants and banks, if the high court were to declare the House subpoenas beyond the reach of judges, there would arguably be no way for Trump to prevent his financial institutions from providing his records to House investigators. The short-term loss could be Trump’s — although sources said that did not enter into the discussions. The justices concentrated on the larger issue of any president vs. the Congress, sources told CNN.
In their filings, the parties to the case said the high court had the authority, indeed responsibility, to decide the case. Kavanaugh’s idea in the end also failed to sway the other justices, and Kavanaugh backed away from it, sources said. . . .
In the House case, Kavanaugh eventually signed on to Roberts’ opinion for a seven-justice majority, which said Trump could be forced to turn over the financial records if the House could justify its request. But in the companion case, revolving around Trump’s effort to block a subpoena from the Manhattan district attorney, Kavanaugh offered something to both sides.
He agreed that Trump does not possess absolute immunity from a state criminal subpoena — every justice agreed with that proposition — but he then wrote for himself and fellow Trump appointee Gorsuch to assert a tough standard for prosecutors trying to obtain a president’s records.
Emphasizing differences with Alito and Thomas
In the recently completed session, Kavanaugh clung to his conservatism, offering no surprises and pleasing the right-wing advocates who had pushed for his confirmation. Still, he went out of his way to separate himself from hard-hitting conservatives Thomas and Alito, and sometimes Gorsuch.
Kavanaugh would hedge his rhetoric, trying to offer some sympathy for the people he was voting against, perhaps mindful of the reputation he wanted to counter and rebuild from 2018. . . .
In the most publicized moments of his 2018 hearings, Kavanaugh declared that the sexual assault allegations had arisen from a crusade of revenge against him and his Republican supporters. The unrestrained response was widely criticized as injudicious, including by former Justice John Paul Stevens, who has since died.
Kavanaugh declared then that “what goes around comes around,” listing a string of grievances that dated to his experience with Starr investigating the Clintons.
Kavanaugh appears to be trying to halt that pattern with a new message: He just wants to get along.