A Courtier for the Imperial Presidency

The Supreme Court does not ordinarily hear cases during its annual summer recess, but the summer of 1974 was not ordinary. The Watergate crisis had entered its final stages. Congress and the special prosecutor’s office both jockeyed to obtain President Richard Nixon’s collection of White House tapes, which contained evidence of his role in the coverup. Nixon vigorously fought special prosecutor Leon Jaworski’s subpoena by citing national security and executive privilege.

In a unanimous 8-0 decision, the court rejected Nixon’s efforts to thwart the subpoena. “Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications ... can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances,” Chief Justice Warren Burger wrote for the court. The ruling came to symbolize the triumph of the rule of law and the principle that no man is above it. Nixon resigned two weeks later.

Brett Kavanaugh, President Donald Trump’s nominee to replace retiring Supreme Court Justice Anthony Kennedy, has articulated a different interpretation of those events. In a 1999 interview, he argued that the landmark Watergate tapes case, United State v. Nixon, may have been “wrongly decided” due to the “tension of the time.”

This suggestion is in line with Kavanaugh’s general views on the executive branch’s constitutional authority. From the White House’s ability to fire federal officials to whether its occupant can face lawsuits while in office, Kavanaugh has articulated an extraordinarily deferential stance on presidential powers and privileges. His ability to put those views into practice as a Supreme Court justice would be a boon to future presidents—and to the man who nominated him for the post.

Kavanaugh made the remarks about Nixon during a roundtable discussion that was covered by Washington Lawyer magazine. The article, which was among thousands of pages of documents submitted to the Senate Judiciary Committee as part of Kavanaugh’s confirmation process, quotes his views on the case at length:

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.

“Should U.S. v. Nixon be overruled on the ground that the case was a nonjusticiable intrabranch dispute?” Kavanaugh was quoted as saying. “Maybe so.”

In immediate terms, those remarks raise questions about how Kavanaugh would decide cases related to the Russia investigation if they reach the Supreme Court. Most of the investigation covers events that took place before Trump took office, but one of its key avenues of inquiry is whether Trump obstructed justice by firing FBI Director James Comey last May. Trump’s lawyers have resisted allowing the president to be interviewed by special counsel Robert Mueller on the matter. They have also disputed the idea that Trump can commit obstruction of justice at all.

If Trump ultimately rejects the request for an interview, Mueller could obtain a subpoena from the grand jury and try to compel him to testify before it. I noted last month that such a move would trigger a dramatic legal showdown between the president and the special counsel that would likely reach the Supreme Court. (It’s also possible that Trump would simply fire Mueller on the spot, sparking a different sort of crisis.) How would Kavanaugh rule on the matter if he sits on the court when the case arrives?

More broadly, Kavanaugh’s framing of the situation in Nixon is disquieting. The case established that even the presidency must bow to the American criminal-justice system. We also now know that the justices feared Nixon’s lawlessness and crafted a unanimous opinion to prevent him from defying the court. Reducing the Watergate crisis to a “nonjusticiable intrabranch dispute” between the president and a “subordinate” employee in the executive branch—in this case Jaworski, the special prosecutor—disregards both history and the court’s responsibility to maintain the American rule of law.

It’s possible, of course, that Kavanaugh’s views on Nixon and on Watergate itself have changed in the past 19 years. But his more recent work indicates that he has continued to take an expansive view of presidential authority. In a 2009 Minnesota Law Review article titled “Separation of Powers During the Forty-Fourth Presidency and Beyond,” Kavanaugh reflected on the state of the presidency and offered five proposals to cure what he saw as defects in it.

He was well-positioned to write the article. Kavanaugh drew on his experiences tangling with the Clinton administration as a member of independent counsel Ken Starr’s team, as well as his service in the George W. Bush’s administration. His five suggestions run the gamut from the mundane (the Senate should hold a vote on every judicial nomination within 180 days of receiving it) to the eclectic (what if the president served a single six-year term?). One proposal stands out above the others: Give the president temporary immunity from civil lawsuits and criminal prosecutions while in office.

“Having seen first-hand how complex and difficult that job is, I believe it vital that the president be able to focus on his never-ending tasks with as few distractions as possible,” he wrote. “The country wants the president to be ‘one of us’ who bears the same responsibilities of citizenship that all share. But I believe that the president should be excused from some of the burdens of ordinary citizenship while serving in office.”

It’s not hard to see the practical implications of that argument. Excusing the current president from the “burdens of ordinary citizenship” would likely grind the Russia investigation to a halt, denying the American people answers about the president’s potential complicity in Russian cyberattacks on the American democratic process. Temporary immunity would also likely let Trump escape political embarrassment from multiple lawsuits brought by women who have accused him of sexual assault.

Kavanaugh’s supporters have defended him by noting that his proposal was that Congress, not the courts, establish the president’s temporary immunity from lawsuits and investigation. That much is true. What those defenses elide is the reasoning behind Kavanaugh’s argument: a back-breaking deference to the president’s job performance over the ordinary processes of the American judicial system. “We exalt and revere the presidency in this country—yet even so, I think we grossly underestimate how difficult the job is,” he wrote.

There’s evidence that Kavanaugh would apply a similarly deferential and expansive view of presidential power on the Supreme Court. As a judge on the D.C. Circuit Court of Appeals, he wrote a three-judge panel’s decision in 2016 that found the structure of the Consumer Financial Protection Bureau to be unconstitutional. Congress established the consumer-protection watchdog with a single director who could only be removed by the president for cause. Insulating the CFPB from the president’s direct oversight, Kavanaugh argued, threatened Americans’ freedom.

“The CFPB’s concentration of enormous executive power in a single, unaccountable, unchecked director not only departs from settled historical practice, but also poses a far greater risk of arbitrary decision-making and abuse of power, and a far greater threat to individual liberty, than does a multi-member independent agency,” he wrote. Placing the agency under the president’s direct control was the best remedy to this flaw, he concluded. The entire D.C. Circuit Court of Appeals vacated Kavanaugh’s ruling in January and upheld the CFPB’s structure as established by Congress.

In his CFPB ruling, Kavanaugh quoted at length from Justice Antonin Scalia’s dissent in Morrison v. Olson, the 1985 Supreme Court ruling that upheld the constitutionality of the Independent Counsel Act. Scalia’s dissent in Morrison articulated what’s known as the unitary-executive theory, which holds that the president has near-unchallenged powers over the executive branch and its functions. During a D.C. think-tank event in 2016, Kavanaugh was asked if there was any Supreme Court ruling he would overturn. He initially declined to answer before naming Morrison as his choice.

Kavanaugh, for what it’s worth, won’t be a unitary figure on the Supreme Court. If the Senate confirms him to a lifetime appointment, he’d still have to persuade his eight colleagues to adopt his broad views on executive power before those stances could reshape American constitutional law. Nonetheless, the record indicates that as a justice, Kavanaugh would be a reliably deferential voice for President Donald Trump and his successors for decades to come.

At the age of 23, the Russian novelist Leo Tolstoy was something of a train wreck. A handsome young man of privilege, he gambled away part of his inheritance at cards. He became an accomplished drinker and an even more accomplished womanizer. His prolific hedonism landed him in the venereal disease clinic at the University of Kazan, where he studied law for two years before dropping out. Desperate to turn his life around, he enlisted in the Russian army and fought in the Caucasus, the mountain range at Russia’s southern border, an experience that would inspire his semi-autobiographical novella (and critical self-reflection), The Cossacks. For Tolstoy’s hero, leaving behind his cozy existence as a young aristocrat in Moscow, life with the Cossacks is a fantasy of authenticity and rugged simplicity. They promise a path towards his own moral regeneration. 

The Cossacks, Keith Gessen has said, was the “ultimate model” for his new novel A Terrible Country. At the center of the story is Andrei Kaplan, a Russian-born American PhD working as an adjunct instructor for a PMOOC (Paid Massive Open Online Course) on the Russian novel. When we find him, he has just left New York City for Moscow, ostensibly to care for his ailing 89-year-old grandmother Baba Seva, but also with hopes that her memories of the Soviet Union will provide material for an academic article—something Andrei needs in order to secure a permanent professorship. But Gessen’s characters (graduate students in Russian literature, leftist activists fighting Putin’s regime, amateur hockey players, slimy expat bros—all of whom will feel viscerally real to anyone who has lived in Moscow) push back against the protagonist’s self-interestedness in a way that Tolstoy’s never quite do, pointedly criticizing Andrei for sopping up their local knowledge and then abandoning them as soon as the comforts of home beckon.

Like Andrei, Gessen has roots in both Russia and the United States. Born in Moscow to a literary critic mother and a computer scientist father, Gessen and his family emigrated to the United States in 1981 when he was just six years old. Also like Andrei, Gessen’s family left to escape anti-Semitism, a scourge still very palpable in Russia and one that shaped Baba Seva’s opinion of the place; the words “a terrible country,” used to describe Russia, come from her. Gessen grew up in Massachusetts, and after graduating Harvard in 1998, made a splash on the New York literary scene as one of the founding co-editors of n+1. His novel asks a question that plagues many who write about parts of the world they don’t call home: How do you let a place transform you without reducing it and its people to a footnote in your own path towards self-realization?

A Terrible Country is decidedly well-timed, arriving at a moment when complex, critical stories that connect Russia and the United States are in short supply. It also marks Gessen’s return to fiction after a ten-year hiatus. In 2008, he published All the Sad Young Literary Men, a semi-autobiographical story in which three over-educated friends try to become successful writers and grapple with what that even means. In the next few years, as the Great Recession hit, Gessen became actively involved in the Occupy Movement, and edited Diary of a Very Bad Year: Confessions of an Anonymous Hedge Fund Manager and co-edited Occupy!: Scenes from Occupied America. 

His new novel begins at this pivotal moment: It’s the summer of 2008, in the months ahead of the global financial crisis, when Andrei receives a gchat message from his older brother Dima. Dima wants him to stay with Baba Seva, while he goes to London for an “unspecified period of time.” Unlike Andrei, Dima moved back to Moscow as soon as the Soviet Union collapsed to “make his fortune.” Indeed, post-Soviet Russia attracted a slew of opportunists looking to “rebuild” the country and “help” with the transition to capitalism. It was not always easy money though: Dima once convinced his American friend Tom to open a bakery there, but “Tom opened his bakery too close to another bakery” and “was lucky to leave Moscow with just a dislocated shoulder.” Likewise, Dima’s own departure seems partially motivated by some dangerous dealings gone wrong; he won’t tell Andrei why he needs to go to London because the “very serious people” he’s involved with might be monitoring his messages. 

Andrei, recently dumped by his girlfriend at a Starbucks and coming off a third unsuccessful year on the academic job market, decides that moving to Moscow might be the shock to his system he needs. He moves into Baba Seva’s grand apartment in central Moscow, lodgings awarded to her by Stalin in the 1940s for her successful work consulting on a patriotic film about Ivan the Great. Baba Seva, we learn, was a professor of history at the prestigious Moscow State University. The apartment she received is a source of lifelong guilt as Andrei later learns: “For my grandmother to receive a Stalin apartment, someone else had to lose it.” Indeed, the thorny moral calculations that educated people made under Soviet authoritarianism and now under oligarchic capitalism is a prominent theme in Gessen’s novel.

One of Andrei’s central preoccupations throughout the novel is the difficulties that Russia experts face in a tightening academic job market, in which the pursuit of knowledge can often feel reduced to the pursuit of a competitive edge. Andrei’s graduate school nemesis Alex Fishman represents an extreme version of this problem, bragging about his colleagues at Princeton and regularly posting on Facebook about his career successes. Andrei runs into Fishman at a dinner party in Moscow and unloads on him, accusing him of profiting off of Russia without giving anything back. “What have you ever done for Russia, Fishman,” he chides. In keeping with the novel’s sense of humor (which refreshingly deflates any character who verges on becoming self-righteous), a bottle of beer Andrei has been hiding falls out of his pocket and rolls across the floor.

But Gessen is careful never to reduce any group of people to a caricature (surely being from Russia and seeing Western news coverage of his home country has played some part in that). Like Baba Seva, who just wanted to help make a historically accurate movie about Ivan the Great, the other postdocs and graduate students at the dinner party are “sweet, earnest people who had gone into academia because they cared about knowledge…That they were now all stuck in a demeaning pursuit of professional advancement, and in a shrinking field to boot, was not their fault.” Like many idealists before them, “They had gone into this with the purest of motives” and were now struggling to stay true to themselves in the face of market pressures.  

Which brings us to the second half of A Terrible Country: the communists. Whereas the first part of a novel centers on Andrei as he takes care of his grandmother, attempts to find a hockey game, and grits his teeth at the successes of his grad school friends, the latter half is dedicated to October, a Marxist reading group he stumbles into and gleefully gets swallowed up by. After Andrei leaves the explosive dinner party, one of the other guests, a “cute” Russian PhD student named Yulia, invites him to speak on the topic of neoliberalism in higher education at a leftist bookstore. It turns out that Andrei is the warm-up act for the main speaker, a charismatic “street professor” named Sergei. 

Andrei becomes entranced by Sergei, a former university instructor who quit “in protest” over “the increasing privatization of education in Russia.” He now teaches in “mobile classrooms,” offering Russian language lessons to migrants from Central Asia and free test-prep to poor high school students as he drives around Moscow in his Lada. Andrei decides to write about Sergei and the October group for an article in Slavic Review, a top peer-review journal in his field where his advisor has been pressuring him to publish. But Andrei develops a twinge of guilt; turning October into a line on his CV feels slimy, a “betrayal” of all the things that attracted him to Sergei in the first place. It doesn’t help that his advisor ecstatically begins branding the project with buzzwords and phrases like “The return of the repressed. The incorrigible Russians.” Thus begins Andrei’s research: He spends the next months debating Marx at their meetings, attending anti-fascist protests, and attempting to lure Yulia away from her husband, a disgraced former member of October who left them for the anarchists.

Despite the seeming intensity and sobriety of the debates that suffuse the novel—neoliberalism, aging relatives, careerist Westerners—A Terrible Country is filled with moments of levity. It never takes its subjects, even the ones it presents as heroes, too seriously. For instance, Andrei learns that the Marxists originally named themselves September, the idea being “if the revolution is in October, we were in the month before the revolution.” When Andrei asks if there’s a political explanation for the switch to October, Sergei explains, “Well, no. We just decided it was a stupid name.”

That isn’t to stay that Gessen trivializes the work of October. In fact, by the end of the novel, things get very serious indeed and the consequences of political action for those involved contrast starkly with the relative security afforded a foreign academic who merely researches political action. When two members of October are jailed for protesting, Andrei writes an op-ed in The New York Times. He intends the piece to stir up international support, but it only brings him professional accolades from his academic colleagues in the U.S. Reflecting on the unfairness of it all, Andrei mournfully remarks that his friend’s “prison experiences had not done as much for his career as they had for mine.” 

Gessen’s novel, peppered with references to Russian literature throughout, is both an homage to the great writers of his home country and a sad reflection on how little value they command in a market driven society. The people who try to preserve their legacy—academics, journalists, or like Gessen, both—find themselves adrift, often compromised. In the plot of A Terrible Country, Gessen has shown how literature, academia, and anti-capitalism—topics often pushed to the periphery of political debate—have in fact much to say about the dehumanizing effects of neoliberalism. Tolstoy, who by the end of his life opposed private property, renounced the copyright to his literary works, and started a school for peasants, would probably like it.