Dear Sen. Flake:

In your final year as a Republican senator from Arizona, you’ve courageously spoken out against President Trump’s lies, ongoing assault on the rule of law and bizarre affinity for Russia. Your January speech on the Senate floor is even more powerful today as Trump’s conduct has further deteriorated, and the pace of his lies has increased. These remarks seem especially relevant:

Some untruths are trivial — such as the bizarre contention regarding the crowd size at last year’s inaugural.
But many untruths are not at all trivial — such as the seminal untruth of the president’s political career – the oft-repeated conspiracy about the birthplace of President Obama. Also not trivial are the equally pernicious fantasies about rigged elections and massive voter fraud, which are as destructive as they are inaccurate — to the effort to undermine confidence in the federal courts, federal law enforcement, the intelligence community and the free press, to perhaps the most vexing untruth of all — the supposed “hoax” at the heart of special counsel Robert Mueller’s Russia investigation.
To be very clear, to call the Russia matter a “hoax” — as the president has many times — is a falsehood. We know that the attacks orchestrated by the Russian government during the election were real and constitute a grave threat to both American sovereignty and to our national security. It is in the interest of every American to get to the bottom of this matter, wherever the investigation leads.

Then you also called on Republicans, not merely with respect to the Russia matter, “to turn back these attacks, right these wrongs, repair this damage, restore reverence for our institutions, and prevent further moral vandalism. Together, united in the purpose to do our jobs under the Constitution, without regard to party or party loyalty, let us resolve to be allies of the truth — and not partners in its destruction.”

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Those are powerful words in the abstract. Now comes a time to put them into practice.

A president under investigation for coordinating with Russia to help his campaign, as well as obstructing an investigation into that serious charge, will now get the chance to select a key justice who will rule on the president’s extraordinary constitutional claims — e.g., he can avoid a grand jury subpoena; he cannot be charged with obstruction of justice; he can pardon himself. Given the president’s propensity to demand pledges of loyalty, it is inconceivable that either Trump directly or one of his allies will not have probed potential nominees’ views on executive power. They might not have been foolish enough to ask flat out whether the Supreme Court would reverse United States v. Nixon, for example, but there are infinite ways through winks and nods to reach an understanding as to a prospective justice’s intentions on those issues.

Ian Bassin of Protect Democracy observed that “if it turns out Trump has broken the law but he can avoid accountability by choosing his own judge in a manner designed to insulate himself (and don’t kid yourself if you think the Senate GOP is going to be a check on this), then we will have lost our democracy.”

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Even if this never occurred, the perception by millions of Americans will be that Trump stacked the deck. Whatever decision the court renders on Trump’s potential liability will come with an asterisk, if not a cloud. The supposition will be that the court was “fixed” and that the very legitimacy of the court and our democracy will be at risk. Moreover, given his experience with Attorney General Jeff Sessions, one can imagine there will be an understanding about recusals in matters that implicate the president’s legitimacy.

There are, I would suggest, two ways to approach this problem.

First, the final vote to confirm a new justice can wait until after the election, allowing voters by their choice of senators to determine whether they really trust Trump to pick an independent, some would say ungrateful, justice who is fully prepared to rule against him in a case in which the presidency is at stake. Your Republican colleagues obviously won’t like that.

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An alternative would be to extract a written pledge that the new justice would not sit on any case involving the president’s conduct on the Russia investigation or during the campaign. He or she would not, for example, sit on whether a self-pardon is valid, nor would he or she sit on a case deciding whether Trump can simply decline to respond to a grand jury subpoena.

Certainly, a respectable nominee who sees the institution of the court at risk could see the utility of this ethical insulation, if you will. In fact, such a justice should want to recuse themselves so as not to taint every single opinion that followed with suspicion that the justice got there by making a Faustian bargain with the president. Conversely, if the justice refuses to issue a recusal in advance, he or she will be revealing something about his or her temperament and judgment. It should not be sufficient to get a generic promise to follow ethical guidelines, nor to duck the question entirely. The legitimacy of the court is at risk.

The alternative — pushing a justice through in the four months before November’s midterms — would create a wave of retaliatory moves. A Democratic majority in the House and Senate could, for example, decide to increase the size of the court, and then deny hearings on nominees until a Democratic president is elected.

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Moreover, what if — and this is no stretch — special counsel Robert S. Mueller III determines there was coordination or that the president participated in a series of actions constituting a felony such as obstruction of justice. Would the country stand for his ability to fix the court before he is forced to leave office or resigns?

In sum, there is no danger in waiting until after the midterm elections if the president intends to nominate a respected, ethically fair and independent judge. We already know from the confirmation vote on Justice Neil M. Gorsuch that three Democrats were willing to vote for such a justice. On the other hand, the risks of permitting Trump to stack the deck are grave.

Respectfully,

Right Turn

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