Is Trump Leading Us Right Into A Constitutional Crisis? In This Case, Are Republican Presidents Above The Law?

Yesterday, CNN reported something that most of us already knew-- that Trump picked Brett Kavanaugh for the Supreme Court because Kavanaugh has asserted that presidents are basically above the law. Manu Raju: "[I]n 2013 [Kavanaugh] asserted that it's a 'traditional exercise' of presidential power to ignore laws the White House views as unconstitutional, as he defended the controversial practice of signing statements prevalent in George W. Bush's White House.

The comments could put a renewed focus on Kavanaugh's time serving as White House staff secretary, who had a role in coordinating Bush's statements accompanying legislation he signed into law. Critics contend that the Bush White House abused the use of signing statements to ignore laws passed by Congress, though Bush and his allies said such statements were no different than the practices of other administrations.

Democrats have demanded full access to documents from Kavanaugh's tenure as staff secretary from 2003-2006 as part of his Supreme Court vetting process, citing in part his role over the Bush signing statements. But Senate Judiciary Chairman Chuck Grassley, an Iowa Republican, has rejected those demands, saying they are irrelevant to his nomination and a Democratic attempt to drag out the vetting process, which already includes hundreds of thousands of pages from other aspects of his career.

In 2013, Kavanaugh was speaking at Case Western Reserve Law School in Ohio when he was asked about signing statements, with the questioner noting that critics say that presidents can issue them to ignore provisions in laws they don't like.

In response, Kavanaugh said that injured parties can take their grievances to court if they believe the president is not following the law-- and that Congress can push back as well.

And Kavanaugh noted that if a president signs a bill "and says these certain provisions in here are unconstitutional, and we're not going to follow those provisions, that is a traditional exercise of power by Presidents."

In a legal opinion that same year, Kavanaugh took a similar position, saying that the president can't ignore the law "simply because of policy objections"-- and that the White House must abide by the law "unless the President has a constitutional objection" to the issue at hand.

"If the President has a constitutional objection to a statutory mandate or prohibition, the President may decline to follow the law unless and until a final Court order dictates otherwise," Kavanaugh wrote in the August 13, 2013, opinion. He made a similar argument in a 2011 dissenting opinion.

Meanwhile, Greg Sargent, writing for the Washington Post told his readers to  get ready for this nightmare scenario involving Trump, Mueller, and Brett Kavanaugh, based on a premise that two of the DC's biggest stories "are on track to collide with one another in spectacular fashion." One is the elusive Trump-Mueller session and the other is the confirmation of Kavanaugh. "Giuliani," he wrote, "who is supposedly Trump’s lawyer, is preparing a letter to Mueller that will largely reject the Special Counsel’s latest suggested terms for an interview. Giuliani claims Trump’s team has 'real reluctance' about Trump facing any questions about potential obstruction of justice. While it’s very possible something will be worked out, it’s also possible that, in the end, Trump may decide against sitting for an interview... If Trump declines an interview, Mueller will probably hit him with a subpoena to appear before the grand jury, as he has privately threatened to do. But on ABC’s This Week, another Trump lawyer, Jay Sekulow, flatly stated that if this happened, Trump’s team will fight it all the way to the top."

What this means is that, in advance of Kavanaugh’s hearing, we may already know that Kavanaugh could end up being the deciding vote on the question of whether a president (Trump) can be compelled to testify to a grand jury. Now, it is possible that the current court could rule on such a matter sooner (the eight justices might deadlock, defaulting to a lower court). But it’s also perfectly plausible, depending on how long Trump’s team takes to make a decision and what happens in the courts after, that this could be headed for a showdown in front of a high court with Kavanaugh on it.

Kavanaugh’s expansive views of executive power and privilege have been widely debated. Kavanaugh argued in 2009 that “we should not burden a sitting president” with “criminal investigations.” Kavanaugh’s suggested remedy was Congress passing a law to preclude this, so he doesn’t necessarily think presidents are constitutionally protected from such probes. He has also said that the decision forcing Richard Nixon to turn over the Watergate tapes might have been “wrongly decided,” but he has also hailed it as a great moment in judicial history, in which the courts “were not cowed and enforced the law.”

We don’t really know for sure what Kavanaugh believes on these matters. But Democrats and liberal groups such as the Center for American Progress have suggested Trump may have picked him precisely because of his possible tendency towards deferring to executive privilege, which they have argued is grounds for him to recuse himself from any decisions involving Trump and the Mueller probe.

But if we learn that Trump is being subpoenaed for an interview against his will, this would suddenly invest the question of what Kavanaugh really believes on these issues-- and whether Kavanaugh will recuse himself-- with practical urgency and immediacy. We will know before Kavanaugh’s hearing that he may soon be ruling on such a matter-- in particular, the question of whether Trump can be compelled to testify.

Democrats from Trump states, such as Joe Donnelly, are remaining noncommittal on Kavanaugh pending their customary sit-down meeting with him. But if the above scenario starts to develop, they will-- and should-- face added pressure to drill down on these matters in their face-to-face interviews.

"Sekulow’s comments make clear that the question of whether a sitting president must be responsive to a subpoena may not be a hypothetical for very much longer,” Brian Fallon, the executive director of Demand Justice, which is leading the fight against Kavanaugh, told me. “Kavanaugh owes his appointment to the man who may soon be a party in a case coming before the Supreme Court. Plus Kavanaugh has already expressed strong views on whether a sitting president should be able to be ensnared in criminal proceedings.”

“If this showdown materializes in the middle of the confirmation battle, it will catapult Kavanaugh’s expansive views on presidential power to the front burner,” Fallon continued. “At the very least, Kavanaugh ought to be forced to commit to recusing himself from any matter arising out of Mueller’s probe.”

It is unlikely that Kavanaugh will pledge to recuse himself during his hearing. It is also likely that he will try to avoid offering sufficient insight into his views of executive privilege to gauge how he might rule on a Mueller subpoena or any other Mueller-related matter, such as whether a president can pardon himself or his cronies or shut down a Department of Justice investigation into himself, which the president’s lawyers claim he has the power to do.

The nightmare scenario

So we may soon face a situation in which a president whose campaign is under investigation for collaboration with a hostile foreign power’s sabotaging of our democracy-- and who has gone to enormous lengths to both scuttle that investigation and to publicly vindicate that foreign power-- is seeking to avoid questioning on these matters, with the help of the justice he just appointed, possibly (given what we know about Trump) in part for this very reason.

...[I]f Kavanaugh does not pledge recusal or shed sufficient light on his views, Senators are not obliged to confirm him. Indeed, you’d think this would present them with what should be a very difficult situation. It should become harder for any self-respecting red state Democrat to support him. Heck, this scenario might even get a bit uncomfortable for vulnerable Republicans, since they are facing a midterm which will likely turn heavily on voters’ desire for a check on an out-of-control president.