Put simply, Democratic senators need to do all they can to tease out how Kavanaugh’s views bear on the fundamental question of whether the president is above the law.
It is likely that Kavanaugh will dodge most of the questions thrown at him. But even that might help illustrate the stakes for the country in this confirmation battle.
It is hard to tease out exactly what crisis Trump might precipitate or how one might end up coming before the court. But what we do know right now, at this very moment, is that Trump and his legal team have repeatedly asserted that he has near-absolute power over Robert S. Mueller III’s investigation.
For instance, Trump’s own lawyers have asserted that literally nothing Trump does toward the probe can constitute obstruction of justice by definition, “by virtue of his position as the chief law enforcement officer.” Thus, they claim Trump could simply “terminate the inquiry” if “he wished,” and that he could “exercise his power to pardon if he so desired.”
Meanwhile, Mueller could still try to subpoena the president for an interview — and Trump may assert he has the power to refuse. The Post’s Carol D. Leonnig reports that Mueller’s team has told Trump’s lawyers that he will accept written answers to some questions about Russia, but Mueller has not ruled out seeking a face-to-face interview, particularly on questions related to obstruction. Trump’s team has vowed to take any subpoena to the Supreme Court.
And so, what we also know right now, at this very moment, is that Kavanaugh may well end up ruling on matters directly involving Trump’s personal legal travails. So Democrats can at least try to tease out what Kavanaugh’s views about executive power and privilege might signal as to how he might rule in any coming crisis.
“Trump has asserted the right to obstruct justice, end investigations into himself through mass firings or pardons, and withhold information from Mueller, Congress, and the American people,” Sam Berger, a senior adviser at the Center for American Progress, told me.
“Kavanaugh has put forth extreme views that suggest he thinks the president is, at least in some areas, above the law,” Berger added. “Understanding his views on this matter is critical to determining his fitness to serve on the Supreme Court.”
How Democrats will have to press Kavanaugh
Democratic senators will have to press Kavanaugh on his view, expressed in a 2009 law review article, that sitting presidents should not be burdened with “criminal investigations” or “criminal prosecutions,” and instead that “impeachment” is the proper “mechanism” against a “bad-behaving or law-breaking president.” Kavanaugh urged Congress to pass a law exempting presidents, suggesting this is merely his preference, but we don’t know whether Kavanaugh also believes presidents are constitutionally exempt from such investigations. Democrats will have to try to get him to answer that question.
Additionally, Brian Fallon, executive director of Demand Justice, which is leading the charge against Kavanaugh, told me that Democrats need to ask Kavanaugh whether he still stands by his view, stated in 1999, that the Supreme Court decision compelling Richard Nixon to turn over the Watergate tapes may have been wrongly decided.
“I would ask, ‘Do you really believe that Nixon should not have been compelled to hand over the tapes?’ ” Fallon said, adding that this would help shed light on Kavanaugh’s fundamental views of executive privilege as they may play out with Trump and Mueller.
Along those lines, Fallon noted that Democrats should also ask Kavanaugh: “Can a president pardon himself? Can a sitting president be indicted? Can a president refuse to be responsive to a subpoena?”
Elizabeth Wydra, president of the Constitutional Accountability Center, suggested asking the question this way: “The Supreme Court in United States v. Nixon held that neither presidential authority in Article II nor separation of powers precluded the court from requiring the president to comply with a subpoena related to a criminal investigation. Do you think that is a correct interpretation of the law?”
Now, Kavanaugh very well may refuse to answer the question of whether he thinks the Supreme Court ruling against Nixon was wrongly decided. If so, that would be worrisome.
“That would put his commitment to the principle that no person (even a president) is above the law into serious doubt,” Matthew Miller, a former Justice Department spokesman, told me.
This could have direct bearing on Trump, Miller noted, because a refusal to answer the Nixon question might signal that Kavanaugh would, in fact, rule in favor of Trump if he decided to defy a Mueller subpoena. Or, Miller added, a non-answer might compound doubts as to whether Kavanaugh believes a sitting president can be investigated criminally at all. Which could mean that, in the unlikely event that Mueller decided to indict Trump after leaving office, Kavanaugh could rule “that this isn’t constitutional.”
On the other hand, Kavanaugh could take this occasion to reassure the country on these matters. “A very good defense of United States v. Nixon would be an important thing to hear from him,” Miller said.
As Laurence Tribe, Timothy Lewis and Norm Eisen write, Trump picked Kavanaugh in the full knowledge that Kavanaugh might end up ruling on something directly impacting his personal legal troubles, which itself forms grounds for Kavanaugh to recuse himself on any such matters. Democrats will — and should — press on this point as well. But Kavanaugh reportedly will not commit to recusal.
Indeed, given what we know about Trump, it’s perfectly plausible that he picked Kavanaugh in active preparation for the eventuality that this might happen. If Wednesday’s Kavanaugh hearing confirms a very expansive view of executive power and privilege, that could conceivably render Trump more prone to precipitating a crisis, in the belief that he can get away with it. After all, the only constraints Trump recognizes are whatever limits he perceives on what he can get away with.