THE MORNING PLUM:
It is unlikely that Democrats will be able to block Brett M. Kavanaugh, President Trump’s nominee to replace Anthony M. Kennedy, from taking a seat on the Supreme Court. But they can do all they can to clarify the stakes in this battle, to illustrate in advance of the midterm elections what GOP control of the White House and Congress really means for the country over the long term.
Here’s one important area in which they can do that: They must press Kavanaugh to clarify his thinking on the question of whether presidents are above the law, or more specifically, how much power presidents have with regard to investigations into themselves.
Many observers are pointing to a 2009 law review article by Kavanaugh that argues that “we should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions,” and instead that “impeachment” is the proper “mechanism” against a “bad-behaving or law-breaking president.” He suggests that “Congress might consider a law” exempting presidents in office “from criminal prosecution and investigation, including from questioning by criminal prosecutors.”
This has obvious implications for special counsel Robert S. Mueller III’s probe involving Trump and his associates, but the reporting on it has been a bit off. Kavanaugh is not saying he believes presidents are currently constitutionally protected from investigations and lawsuits, i.e., that presidents are not legitimate targets or subjects of such actions. Rather, he is saying that this perhaps should be the case and that Congress should pass a law making it so.
But this distinction actually sets up a good line of questioning for Senate Democrats to pursue at Kavanaugh’s confirmation hearing. They can ask him to clarify his thinking on the constitutionality of these matters.
“I would ask, ‘With regard to this language, were you suggesting that there are constitutional problems with an independent prosecutor investigating a president?'” Stephen Vladeck, a law professor at the University of Texas at Austin, told me today. “Or were you merely suggesting you don’t think this is wise?”
This question, of course, is germane because the president’s own lawyers have asserted that Trump can “terminate” Mueller’s investigation, or pardon any of his associates being investigated by Mueller, at will, and that this would not constitute obstruction of justice because Trump is the nation’s “chief law enforcement officer.”
Senators probably could not get Kavanaugh to answer specific questions about Trump and the Mueller probe. But Vladeck notes they can use his previous writings to pivot to more general questions along these lines.
“A senator could ask, ‘Do you believe a president has the Article II authority to shut down a special counsel investigation into himself, or pardon anyone, including himself, for any reason?” Vladeck says. “If he dodges, the question could then be, ‘Given that you’ve previously written about the relationship between presidents and these kinds of investigations, isn’t this a fair question?'” Kavanaugh might dodge again. But Vladeck adds: “There’s still value to having these questions asked on the public record, and there could be non-answers that are very loud.”
Sen. Richard Blumenthal (D-Conn.), a member of the Judiciary Committee, told me today that Democrats should pursue such questions. That’s because there are, in fact, scenarios like this involving Trump and Mueller that could come before the Supreme Court — if Trump refuses a sitdown interview with Mueller, and defies a subpoena, or if he tries to end the Mueller inquiry without good cause, among other things.
Kavanaugh “would very likely be the decisive swing vote” on whether Trump “can pardon himself or others, whether he has to comply with a subpoena to appear before a grand jury, whether he can be indicted as a president,” Blumenthal said. He added that Kavanaugh should be asked: “Are there any limits to the president’s pardon power when it may affect an investigation involving the president as a potential target?” Blumenthal stressed that Kavanaugh should be pressed on whether he will recuse himself from any such matters.
Is the president above the law?
The big issue here, as Caroline Fredrickson and Norm Eisen point out, is that Kavanaugh’s skepticism of investigations into sitting presidents was likely part of his “appeal” to Trump, and suggests Kavanaugh may believe presidents enjoy a level of power over investigations into themselves that may mean Kavanaugh won’t “serve as a check on his abuses of power.” Blumenthal told me today that Kavanaugh should be asked flat-out: “Do you believe the president is above the law?”
That may seem like an overly open-ended question, and it’s one that White House advisers have answered in the negative. But it really is a core issue that needs to be explored. As Sean Illing has explained, Trump’s lawyers have adopted a series of legal theories (the president cannot obstruct justice by definition; his pardon powers are limitless) that actually do raise difficult questions about whether the law applies to the president. More to the point, before long, events may force these questions upon us, requiring answers to them. Democrats must do all they can to flesh out a detailed picture of what Kavanaugh really thinks in that regard.
* DEMOCRATS WILL HAVE TOUGH TIME STOPPING KAVANAUGH: Bloomberg sums up just how hard this is going to be for Democrats:
Democrats would need to forge a united front against Kavanaugh and flip at least one and possibly two Republicans against him, a steep challenge in the face of the jurist’s positions that are solidly conservative. … Yet Republicans have a wafer-thin 51-49 majority, and with GOP Senator John McCain away as he battles brain cancer, McConnell may not be able to lose a single Republican.
The McCain unknown will be interesting to watch, but it seems awfully likely that Mitch McConnell will be able to keep Lisa Murkowski and Susan Collins.
* TRUMP IS CEMENTING ‘CONSERVATIVE MAJORITY’ ON COURT: Using Common Space Score, a metric developed by political scientists, Axios looks at what it would mean if Kavanaugh replaces Anthony M. Kennedy:
Kavanaugh … would have the second most conservative score (0.693) on the bench if confirmed, next to Justice Clarence Thomas (0.725), per a measure that scores judges on a liberal-conservative spectrum. … Kennedy often sided with the liberal wing of the court, so with this choice, Trump is cementing a solid conservative majority on the bench.
What makes this all the more galling is that Trump plainly has given zero thought to what any of this means for the country.
* A WHITE MAN’S COURT: CNN tallies it up:
Since the Supreme Court first convened in 1790, 113 justices have served on the bench. Of those, 107 have been white men. … If confirmed, [Kavanaugh] would be the 108th — and wouldn’t shift the diversity of the current court.
As many pointed out on Twitter, if Kavanaugh gets confirmed, it probably means five men are going to overturn Roe v. Wade.
* EUROPE WORRIES PUTIN WILL ‘PLAY’ TRUMP: The New York Times reports that European allies are worried about how Trump will handle the upcoming NATO summit, followed by his meeting with Vladimir Putin:
The worry in Europe is that Mr. Putin will flatter Mr. Trump and play on the American president’s notion of himself as a great negotiator … They cite the Singapore summit with Kim Jong-un of North Korea, following the Group of 7 crackup … They fear that Mr. Trump might unilaterally cancel planned NATO exercises … to practice the defense of Poland. And they are concerned he might abandon sanctions on Russia over Crimea and eastern Ukraine.
As one expert put it, there was a time when Europe could be confident that we view our interests as “fundamentally aligned with theirs.” Under Trump, that’s no longer operative.
* TRUMP IS READY TO TAKE ON OUR ALLIES: The president embarks:
Trump is linking his effort to squeeze more defense spending from other countries to his threat to escalate the trade war. As one London-based observer puts it, this is taking on the feel of a “protection racket.”
* NO, THE TRUMP TAX CUT ISN’T WORKING: Paul Krugman notes that the GOP tax law was supposed to unleash a surge of corporate investment, leading to a rise in wages. But that ain’t happening:
Adjusted for inflation, the hourly wages of ordinary workers were slightly lower in May than they were a year earlier. … leading indicators of business investment, like orders of capital goods, show no sign of an investment boom ahead. Corporations have gotten a really big tax cut: The tax take on corporate profits has fallen off a cliff since the tax cut was enacted. But they’re using the extra money for stock buybacks and higher dividends, not investment.
By the way, we still don’t know exactly how much Trump and his family personally profited off of the tax cut, because Republicans shielded him from efforts to force transparency.
* TRUMP LIES … AND LIES .. AND LIES: Post fact checkers Salvador Rizzo and Meg Kelly conducted a monster fact check of all of Trump’s statements at his Montana rally. The whole thing is worth your time, but here’s the upshot:
From a grand total of 98 factual statements we identified, 76 percent were false, misleading or unsupported by evidence. … 46 false or mostly false statements, 23 misleading statements and five unsupported claims. We also counted 24 accurate or mostly accurate statements. False or mostly false statements alone accounted for 47 percent of all claims.
And we are still having a debate over whether networks should air Trump’s wall-to-wall unfiltered lies.