Kavanaugh: Watergate tapes decision may have been wrong

Supreme Court nominee Brett Kavanaugh. (AP)
Updated 22 July 2018
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Kavanaugh: Watergate tapes decision may have been wrong

  • Kavanaugh has written some 300 rulings as an appeals court judge and has a record in the George W. Bush White House as well as in Starr’s probe of Clinton
  • Kavanaugh was among six lawyers who took part in the discussion in the aftermath of independent counsel Kenneth Starr’s investigation that led to the impeachment of President Bill Clinton

WASHINGTON: Supreme Court nominee Brett Kavanaugh suggested several years ago that the unanimous high court ruling in 1974 that forced President Richard Nixon to turn over the Watergate tapes, leading to the end of his presidency, may have been wrongly decided.
Kavanaugh was taking part in a roundtable discussion with other lawyers when he said at three different points that the decision in US v. Nixon, which marked limits on a president’s ability to withhold information needed for a criminal prosecution, may have come out the wrong way.
A 1999 magazine article about the roundtable was part of thousands of pages of documents that Kavanaugh has provided to the Senate Judiciary Committee as part of the confirmation process. The committee released the documents on Saturday.
Kavanaugh’s belief in robust executive authority already is front and center in his nomination by President Donald Trump to replace the retiring Justice Anthony Kennedy. The issue could assume even greater importance if special counsel Robert Mueller seeks to force Trump to testify in the ongoing investigation into Russian interference in the 2016 election.
“But maybe Nixon was wrongly decided — heresy though it is to say so. Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official. That was a huge step with implications to this day that most people do not appreciate sufficiently...Maybe the tension of the time led to an erroneous decision,” Kavanaugh said in a transcript of the discussion that was published in the January-February 1999 issue of the Washington Lawyer.
At another point in the discussion, Kavanaugh said the court might have been wise to stay out of the tapes dispute. “Should US v. Nixon be overruled on the ground that the case was a nonjusticiable intrabranch dispute? Maybe so,” he said.
Kavanaugh was among six lawyers who took part in the discussion in the aftermath of independent counsel Kenneth Starr’s investigation that led to the impeachment of President Bill Clinton. Kavanaugh had been a member of Starr’s team.
The discussion was focused on the privacy of discussions between government lawyers and their clients.
Philip Lacovara, who argued the Watergate tapes case against Nixon and moderated the discussion, said Kavanaugh has long believed in a strong presidency. “That was Brett staking out what has been his basic jurisprudential approach since law school,” Lacovara said in a telephone interview Saturday.
Still, Lacovara said, “it was surprising even as of 1999 that the unanimous decision in the Nixon tapes case might have been wrongly decided.”
The article was among a pile of material released in response to the committee’s questionnaire. Kavanaugh was asked to provide information about his career as an attorney and jurist, his service in the executive branch, education, society memberships and more.
It’s an opening look at a long paper trail that lawmakers will consider as they decide whether to confirm him. The high court appointment could shift the court rightward for years to come.
A longtime figure in the Washington establishment, Kavanaugh acknowledged in the questionnaire that he had joined clubs that he said once had discriminatory membership policies.
“Years before I became a member of the Congressional Country Club and the Chevy Chase Club, it is my understanding that those clubs, like most similar clubs around the country, may have excluded members on discriminatory bases that should not have been acceptable to people then and would not be acceptable now,” he wrote.
Asked to list the 10 most significant cases for which he sat as a judge, Kavanaugh cited nine in which “the position expressed in my opinion (either for the court or in a separate writing) was later adopted by the Supreme Court.”
The 10th regarded a man fired by mortgage giant Fannie Mae after he filed a discrimination complaint that alleged a company executive had created a hostile work environment by calling the worker “the n-word.” Kavanaugh said he included it “because of what it says about anti-discrimination law and American history.”
Kavanaugh said an appeals court panel on which he sat reversed a lower court’s ruling in favor of Fannie Mae. He said he joined the majority opinion in 2013 and wrote a separate concurrence “to explain that calling someone the n-word, even once, creates a hostile work environment.”
In the questionnaire, Kavanaugh cited his opinion in that case: “No other word in the English language so powerfully or instantly calls to mind our country’s long and brutal struggle to overcome racism and discrimination against African-Americans.’” But it was one of the relatively few discrimination cases in which Kavanaugh sided with a complaining employee.
Offering a timeline leading to his nomination, he said White House counsel Don McGahn called him the day Justice Anthony Kennedy announced his retirement, June 27, and they met the next day. Trump interviewed him July 2, with McGahn present, and Vice President Mike Pence interviewed him July 4. Kavanaugh spoke by phone with the president on July 8 and that evening met at the White House with Trump and his wife, Melania, where he said he was offered and accepted the nomination.
Asked whether anyone sought assurances from him about the stand he might take on a specific case or issue, he answered “No.” He also said he had not offered any indication how he might rule as a justice.
Kavanaugh has written some 300 rulings as an appeals court judge and has a record in the George W. Bush White House as well as in Starr’s probe of Clinton.
Republican Sen. Chuck Grassley of Iowa, the committee chairman, said the questionnaire was “the broadest and most comprehensive” ever sent by the committee and he welcomed “Judge Kavanaugh’s diligent and timely response.”
The nominee told lawmakers he registered for the Selective Service in his younger days but did not serve in the armed forces.
Years before he became a judge and compiled a solidly conservative record, Kavanaugh also reflected on how past nominees have sometimes disappointed partisans who wanted a more liberal or conservative justice. Speaking on CNN in 2000, he was responding to a question about whether the next president could “pack the court” with like-minded justices.
Presidents often prefer to avoid bloody confirmation fights, he said in a transcript that was released Saturday. “We’ve seen that time and again, to pick the consensus pick who turns out to be more moderate and thus less predictable, that’s what’s happened,” Kavanaugh said.


Top Indian court says it will not probe French fighter jet deal

Updated 14 December 2018
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Top Indian court says it will not probe French fighter jet deal

  • Congress party accused Narendra Modi’s administration of graft following a deal to buy 36 Rafale planes and the decision to pick Reliance Defense as a domestic partner
  • India’s Supreme Court ruled there was no evidence of commercial favoritism

DELHI: India’s Supreme Court said Friday it would not probe the government’s multi-billion dollar decision to buy French fighter jets.
The opposition Congress party accused Prime Minister Narendra Modi’s administration of graft following a deal to buy 36 Rafale planes and the decision to pick Reliance Defense, owned by billionaire Anil Ambani, as a domestic partner.
Reliance has no aeronautical expertise and was chosen ahead of state-run Hindustan Aeronautics Limited (HAL), which does, triggering allegations of a scam.
But the court said there was no evidence of commercial favoritism.
“Having heard the matter in detail, we find no reason for any intervention by this court on the sensitive issue. Perception of individuals cannot be the basis of fishing and roving enquiry by this court, especially in such matters,” the 32-page verdict said.
“We can’t compel the government to purchase 126 aircraft and it’s not proper for the court to examine each aspect of this case. It isn’t a job of the court to compare pricing details. The country cannot afford to be unprepared or underprepared in a situation where our adversaries are stated to have acquired not only fourth generation, but even fifth generation aircrafts, of which we have none,” the court added.
Indian defense procurement rules state that a foreign firm must invest at least 30 percent of the contract in India to help to build up its manufacturing base and wean it off imports.
HAL was the sole contender for being the local partner of Dassault Aviation, which makes the Rafale jets, but when the deal was sealed in 2015 during Modi’s Paris trip it was Reliance Defense that got the contract.
“In our opinion, the Supreme Court judgment is totally wrong. The campaign will certainly not drop and we will decide if we will file a review petition,” one of the main petitioners Prashant Bhushan said after the verdict.
“This isn’t the first time when the Apex court has failed us in ordering a probe in cases of high-level corruption,” he told reporters.
Congress said the Supreme Court was not the forum to rule on such a sensitive defense contract.
“The verdict of the Supreme Court is a validation of what the Congress party has stated months ago. Only forum is a Joint Parliamentary Committee (JPC) which can probe the entire corruption in Rafale deal,” said the party’s chief spokesman Randeep Surjewala.
Ambani denied there had been a scam, saying the allegations were politically motivated, while the ruling Bhartiya Janata Party (BJP) demanded an apology from Congress leader Rahul Gandhi.
“Truth always triumphs. Court’s judgment on the Rafale deal exposes the campaign of misinformation spearheaded by Congress president for political gains,” president of the BJP Amit Shah said.
Dr. Satish Mishra, from the Observer Research Foundation think-tank, said that the court verdict did not mean that the Rafale deal was beyond reproach.
“It only means that the court does not have enough evidence to order a probe into the deal,” he told Arab News. “If the government does not have anything to hide then it should order an independent inquiry or set up a joint parliamentary team to clear the doubts raised by the opposition, otherwise the charges will remain in the public domain. The BJP is in a defensive mode after the defeat in the regional elections. Allegations of corruptions have sullied the image of Modi, the only asset that the party has. I don’t think the verdict in any way vindicates the PM or the BJP.”