Kavanaugh Won't Take Bait on Protecting Trump

Democrats pressed the Supreme Court nominee for his views on how a president can be punished or investigated, but he mostly avoided answering.

Supreme Court nominee Brett Kavanaugh testifies before the Senate Judiciary Committee on Wednesday.
AP Photo/Manuel Balce Ceneta
Sept. 5, 2018, 8:45 p.m.

With their base watching closely, Democrats zeroed in on one crucial question Wednesday for Brett Kavanaugh—would he protect the man who picked him?

In their first day questioning President Trump’s Supreme Court nominee, Democratic senators asked Kavanaugh whether the president must respond to a subpoena, can be indicted while in office, or can pardon himself or others in return for promises not to testify, as well as whether Kavanaugh would recuse himself from cases related to the potential criminal or civil liability of the president.

Kavanaugh declined to say how he would answer what he called “hypothetical” questions, rooting his answer to his “respect” for judicial independence and the precedent set by previous nominees in not describing how they would rule in potential cases that could come before them. He wanted future litigants to understand that he’s “open-minded” when they come to the Court.

“No one is above the law in our constitutional system,” said Kavanaugh.

If confirmed, Kavanaugh may have to rule on such questions should Special Counsel Robert Mueller subpoena Trump in his investigation of Russian interference in the 2016 election. Trump has yet to agree to an interview, and if he refuses, a Mueller subpoena could go to the Supreme Court.

Before serving on the D.C. Circuit Court of Appeals for the past dozen years, Kavanaugh’s views of executive power were shaped by a career both working for and investigating presidents.

After graduating from Yale Law School and clerking for Justice Anthony Kennedy, whose seat he is seeking, Kavanaugh worked as a member of independent counsel Kenneth Starr’s team investigating President Clinton during the 1990s. He served as a White House counsel and a high-ranking staffer under President George W. Bush.

One focus of Democrats was a 1998 Georgetown Law Review article in which Kavanaugh wrote that a president can fire an independent counsel “at will.”

When Sen. Chris Coons of Delaware asked him if he still believed in what he wrote, Kavanaugh responded, “I think all I can say, Senator, is that was my view in 1998.”

After that article was published, Kavanaugh helped write the Starr Report during the Clinton investigation. But after working under Bush, he said that the demands on the president were so high that Congress should consider passing legislation protecting the president from civil suits, criminal investigations, or criminal prosecutions, deferring litigation and investigations until the president is out of office.

In 2009, he wrote in a Minnesota Law Review article, “The nation certainly would have been better off if President Clinton could have focused on Osama bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal investigation offshoots.”

In his defense Wednesday, Kavanaugh said he changed his views of independent-counsel investigations after the Sept. 11 attacks and his work in the White House. He said he had only given proposals to Congress, which has the power of impeachment for removal of a president, rather than weighing in on the constitutionality of indicting or investigating a president.

And he attempted to establish his independence by naming United States v. Nixon as one of the greatest moments in Supreme Court history. In that case, the Court unanimously decided that President Nixon must comply with a special counsel’s subpoena request turning over the tapes of conversations in the Oval Office that led to his resignation.

But that wasn’t enough for any Democrat on the Senate Judiciary committee.

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