The Senate’s top Republican pushed back forcefully Thursday on warnings from Democrats that Supreme Court nominee Brett Kavanaugh might be willing to thwart the Russia investigation of special counsel Robert Mueller.
Majority Leader Mitch McConnell said on the Senate floor that Democrats are reading too much into writings from Kavanaugh, in which he said investigations of sitting presidents are a distraction. McConnell called the claims “outlandish” and a “conspiracy theory” and said Democrats are throwing “catnip for their far-left base.”
Kavanaugh wrote a decade ago that investigations of presidents can hurt their ability to govern. He had first-hand experience, having served on the Kenneth Starr team that investigated President Bill Clinton.
Senate Minority Leader Chuck Schumer has called Kavanaugh’s views on dealing with potential executive wrongdoing “dangerous.”
“If he’s the swing vote on any kind of rational check on this president, I worry. We should all worry,” Schumer said on the Senate floor Wednesday.
At least one Republican, Sen. Susan Collins of Maine, said she plans to ask Kavanaugh about his views on handling presidential misconduct. Collins will be among the key votes in determining whether he is confirmed.
“He doesn’t say that presidents shouldn’t be punished. He says it should be deferred or that impeachment is the appropriate remedy,” Collins said Thursday. She noted the changed stance from earlier in his career. “I’m interested in that it shows his views evolved, which I think is a reasonable learning experience.”
Kavanaugh, who has served on the Court of Appeals for the D.C. Circuit since 2006, was tapped by Trump to replace retiring Justice Anthony Kennedy on the Supreme Court.
In the article Democrats are citing, Kavanaugh wrote that the Supreme Court’s conclusion in Clinton v. Jones that presidents are not constitutionally entitled to a deferral of civil suits “may well have been entirely correct.” But he added that the court did say Congress is free to provide a temporary deferral, and indeed, “may be wise to do so.”
“Deferral would allow the President to focus on the vital duties he was elected to perform,” Kavanaugh wrote. “Congress should consider doing the same, moreover, with respect to criminal investigations and prosecutions of the President.”
Kavanaugh argued that even the lesser burdens of a criminal investigation are time-consuming and distracting, adding that a president who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job.
He said his point is not to put the president above the law or to eliminate checks on the president, but “simply to defer litigation and investigations until the President is out of office.”
Kavanaugh in the article noted that one critique of deferral is that the country needs a check against a bad-behaving or law-breaking president. “But the Constitution already provides that check. If the president does something dastardly, the impeachment process is available.”
“In short, the Constitution establishes a clear mechanism to deter executive malfeasance; we should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions. The President’s job is difficult enough as is. And the country loses when the President’s focus is distracted by the burdens of civil litigation or criminal investigation and possible prosecution.”
House Minority Leader Nancy Pelosi on Thursday expressed concerns, seeing his views on separation of power as “kowtowing to the president, effectively saying that the president is above the law.”
No date has yet been set for confirmation hearings before the Senate Judiciary Committee, as reams of paperwork are being compiled on the judge’s record. Republicans, who hold a slim 51-49 majority in the Senate, are eager to have Trump’s nominee confirmed by the start of the court’s term in October, and before the midterm elections in November.