For Supreme Court nominee, questions about Trump loom
By JESSICA GRESKO
Aug. 31, 2018
WASHINGTON (AP) — Supreme Court nominee Brett Kavanaugh may be the person sitting in front of senators at next week's confirmation hearings, but many of the questions he gets are likely to be focused on another man: President Donald Trump.
Ongoing investigations swirling around Trump mean that lawmakers will want to know how Kavanaugh might vote on questions such as whether a president can be charged with a crime or be forced to testify as part of an investigation. Democrats also are expected to ask Kavanaugh whether he can be truly independent from the president who picked him.
Supreme Court nominees avoid giving legal opinions during their confirmation hearings, saying that would be improper. But Kavanaugh has said or written a number of things that suggest he favors giving the president a good deal of legal breathing room, and he will be asked about those statements.
Expect senators to explore Kavanaugh's views on whether:
A SITTING PRESIDENT CAN BE INDICTED
Legal experts are divided on the question of whether a sitting president can be charged with a crime. At one point in 1998, Kavanaugh's answer seemed to be no. Kavanaugh, who worked on the Whitewater investigation that resulted in President Bill Clinton's impeachment, was a panelist at a Georgetown law school event where the moderator asked : "How many of you believe as a matter of law that a sitting president cannot be indicted during the term of office?" Kavanaugh raised his hand.
Two Justice Department reports, one in 1973 and one in 2000 , came to the same conclusion. And Trump's lawyer, Rudy Giuliani, has said that special counsel Robert Mueller's team has indicated they would not attempt to indict Trump.
Expect lawmakers to press the issue using two law review articles Kavanaugh wrote. In the first , published months after the hand-raising episode, he wrote that whether the Constitution allows a sitting president to be indicted is "debatable." But he said the Constitution's framers seemed to anticipate that the response to presidential wrongdoing would be impeachment.
"The Constitution itself seems to dictate, in addition, that congressional investigation must take place in lieu of criminal investigation when the President is the subject of investigation, and that criminal prosecution can occur only after the President has left office," Kavanaugh wrote.
A decade later, Kavanaugh noted in a 2009 Minnesota Law Review article that a "serious constitutional question exists" over whether a president can be indicted and tried while in office. He wrote that would "cripple the federal government."
In both articles he called on Congress to pass a law exempting the president from criminal prosecution and investigation while in office. It never happened. The Supreme Court could still conclude that the Constitution provides the same protection.
THE PRESIDENT CAN BE SUBPOENAED
Whether a sitting president must respond to a subpoena and answer questions from investigators is another open question, and one perhaps more likely than the issue of indictment to come before the Supreme Court.
Mueller hasn't said that he intends to subpoena Trump, but his team raised the prospect with Trump's lawyers in March . If that happens, Trump's lawyer has said he's ready to fight all the way to the Supreme Court. Lawmakers will want to probe how sympathetic Kavanaugh would be to the president's arguments in that case.
In his 2009 article, Kavanaugh wrote that his time working in President George W. Bush's White House led him to believe that "the President should be excused from some of the burdens of ordinary citizenship while serving in office." He said Congress should pass a law exempting the president from answering investigators' questions.
"Even the lesser burdens of a criminal investigation — including preparing for questioning by criminal investigators — are time-consuming and distracting," he wrote, without expressly saying whether he believes presidents' testimony can be subpoenaed.
Kavanaugh can also expect a grilling on two Supreme Court cases — one involving Clinton and one involving President Richard Nixon — indicating that a sitting president isn't immune from certain legal obligations.
In 1974, the court ruled unanimously that Nixon had to produce subpoenaed recordings and documents. A 1999 magazine article about a roundtable discussion Kavanaugh participated in quotes him as saying : "maybe Nixon was wrongly decided — heresy though it is to say so." More recently, however, he listed it among several landmark Supreme Court cases, saying "some of the greatest moments in American judicial history have been when judges stood up to the other branches."
In 1997, meanwhile, the court ruled unanimously that Clinton wasn't immune while president from a civil lawsuit brought by Paula Jones alleging sexual harassment. Kavanaugh has written that decision "may well have been entirely correct." He has also said: "I am not sure whether or not Clinton v. Jones is right as a constitutional matter."
Democrats have said they will press Kavanaugh to promise that, if confirmed, he won't participate in cases involving any investigation of Trump.
Kavanaugh has an easy out here. He can say that if confirmed he'll follow the recusal practices of his colleagues. That generally means only sitting out a case if a justice participated in it at an earlier stage or has a financial or personal conflict. But each justice makes his or her own recusal decisions.
Kavanaugh can also cite other justices in arguing that he could remain impartial in cases involving Trump. Justices Ruth Bader Ginsburg and Stephen Breyer, both Clinton nominees, participated in the Jones case and ruled against Clinton. Chief Justice Warren Burger, Justice Harry Blackmun and Justice Lewis Powell, all Nixon nominees, helped decide the Watergate tapes case and ruled against Nixon.
Nixon's final Supreme Court appointee, William Rehnquist, had worked in Nixon's administration and recused himself.