Senate Democrats on Thursday pressed Judge Brett Kavanaugh on how he would view potential obstruction of justice or other possible criminal charges against President Trump if he were confirmed to the Supreme Court.
Kavanaugh appeared to walk back some of his earlier claims that the president should be shielded from investigations while in office, Democratic lawmakers who spoke with the Supreme Court nominee told The Hill.
Trump has faced heightened legal scrutiny this week after his former longtime lawyer Michael Cohen told a judge that Trump directed him to pay hundreds of thousands of dollars in hush money involving two women, in violation of campaign finance law.
Senate Democrats say that Kavanaugh’s handling of any case against Trump that could potentially come before the Supreme Court will take center stage when the nominee’s confirmation hearings begin after Labor Day.
Democrats who interviewed Kavanaugh on Thursday said he softened his position on whether the president would have to comply with a subpoena or sit for a deposition, but said the nominee refused to recuse himself from future legal matters involving Trump.
As legal scrutiny of Trump has mounted, Democrats have shifted some of their focus on Kavanaugh from how he might rule on issues such as the Affordable Care Act and Roe v. Wade to how he might decide a case brought against the president.
“I did pursue statements that he made about whether incumbent presidents should be subpoenaed, indicted, investigated, prosecuted and we had a long talk about that,” said Sen. Dick Durbin (Ill.), a senior Democrat on the Judiciary Committee who will be among the first to question Kavanaugh at his hearing next month.
The top Democrat said Kavanaugh appeared to walk back his claims made in a 2009 Minnesota Law Review article in which he argued that sitting presidents should not be distracted by criminal investigations or questions from prosecutors.
Durbin said that Kavanaugh explained in their meeting Thursday that he was merely suggesting that Congress should pass a law shielding sitting presidents from legal inquiries and wasn’t making any broad constitutional claim about their immunity from investigation.
“That is a big difference from what most people thought he was saying in that article,” Durbin said.
When asked if he thought Kavanaugh was walking back his earlier position, Durbin said it “sounds like it.”
Durbin said he focused less on the question of Roe v. Wade because he felt that Kavanaugh would dodge the topic like he has in other interviews.
The nominee told Sen. Susan Collins (R-Maine) last week that he viewed the landmark abortion rights case as “settled law,” but Democrats say that answer doesn’t mean much given that the Supreme Court can overrule its own precedents.
“Everything the Supreme Court decides is settled law until it unsettles it. Saying a case is settled law is not the same thing as saying a case was correctly decided,” Senate Democratic Leader Charles Schumer (N.Y.), a longtime member of the Judiciary panel, told reporters earlier in the week.
Sen. Chris Coons (D-Del.), another member of the Judiciary Committee, pressed Kavanaugh later in the day on how he would handle a criminal case against Trump if it came before the high court.
“We had a vigorous conversation about both his views while he was staff on the Starr investigation about whether the president should have to be amenable to a subpoena for documents or testimony and then his subsequent public statements,” Coons said.
Coons said that Kavanaugh “tried to be very reassuring” during their private meeting about his views on whether presidents must comply with investigations and seemed to walk back past statements.
“I am concerned about trying to square his actual decisional record, things he’s written in law review articles, things he’s said at conferences, with what he said to me,” he said.
Kavanaugh’s views on presidential privilege with regard to investigations have evolved since he served as an associate counsel for independent counsel Ken Starr in the 1990s.
During Starr’s investigation into then-President Clinton, Kavanaugh proposed asking Clinton explicitly detailed questions about his sex acts with White House intern Monica Lewinsky.
However, in his 2009 law review piece, Kavanaugh argued that it is “vital that the president be able to focus on his never-ending tasks with as few distractions as possible” and should be “excused from some of the burdens of ordinary citizenship.”
Kavanaugh told Coons that he viewed the Supreme Court’s unanimous decision in the United States v. Nixon, which ordered the president to turn over to a special prosecutor secret Oval Office tape recordings, as “a landmark case.”
But as with Roe v. Wade, the landmark decision that legalized a woman’s right to an abortion, Kavanaugh declined to say whether he thought it was properly decided.
Kavanaugh, however, said “he now thinks that the president should not be able to interfere in a prosecution,” Coons said.
“It was striking how differently I think he described those things,” Coons added.
The Delaware Democrat confirmed Durbin’s account that Kavanaugh is now characterizing his Minnesota Law Review article as “simply making policy proposals” and not claiming any special constitutional prerogative for the president.
Coons said that Kavanaugh made “roughly” the same argument and said he plans to press him further on the issue when the judge appears before his committee next month.
Sen. Cory Booker (D-N.J.), who also met with Kavanaugh on Thursday, said in a statement that the nominee “refused to commit to recusing himself from matters stemming from Special Counsel Mueller’s investigation.”
Booker’s statement cited Kavanaugh’s past writings, which argue that “a sitting president should not be investigated or indicted,” as a reason to oppose his nomination.
However, Sen. Tim Kaine (D-Va.), who met with Kavanaugh at the end of the day Thursday, also said that the nominee appeared to back off his earlier claims that the president should be above investigation.
Kaine said he and Kavanaugh talked about presidential immunity.
Kaine said that Kavanaugh told him that he was making “a recommendation for legislative action” in his law review article and not putting forth a constitutional analysis.
BY ALEXANDER BOLTON – 08/23/18