‘A POTENTIAL HYPOTHETICAL’
The Five Biggest Moments on Day Two of the Brett Kavanaugh Hearing
There was no game-changing moment, but Democrats hope that they’ve set the stage for one before his confirmation questioning ends.
Members of the Senate Judiciary Committee finally got their chance on Wednesday to question Supreme Court nominee Brett Kavanaugh, giving Democrats their best chance to pin him down on critical issues.
It’s a highly scripted affair, and Kavanaugh avoided disaster during the 12-plus-hour hearing as the partisan questions kept to the script: Democrats asked pointed questions about his views on abortion, gun rights and the limits of presidential powers, while Republicans asked about his judicial philosophy and, for levity, what it’s like to coach his daughters’ basketball team.
But a few exchanges stood out. President Donald Trump loomed large, prompting questions about executive power and whether Kavanaugh would hold the sitting president accountable if he broke the law. An exchange about a decade-old cyberhack seemed to momentarily throw Kavanaugh off his polished game. But the federal judge was well-rehearsed.
Here are the five most revealing exchanges of the day.
Can a President Be Subpoenaed?
Kavanaugh told Sen. Dianne Feinstein (D-CA), the top Democrat on the committee, that he could not answer the “hypothetical question” of whether a sitting president is required, by law, to comply with a subpoena. Trump’s legal team has said that if special counsel Robert Mueller’s prosecutors issue a subpoena for the president, they will fight it all the way to the Supreme Court—meaning Kavanaugh would be among those who decide whether Trump must testify as part of the Mueller probe.
“As a matter of the canons of judicial independence, I can’t give you an answer on that hypothetical question,” Kavanaugh said.
In declining to answer specific questions, Kavanaugh often cited the standard established by Justice Ruth Bader Ginsburg whereby a nominee does not comment directly on cases or issues that could come before the nominee, if confirmed to the high court.
“My understanding is that you’re asking me to give my view on a potential hypothetical,” he added. “And that’s something that each of the eight justices currently sitting on the Supreme Court, when they were sitting in my seat, declined to decide potential hypothetical cases.”
Kavanaugh did call U.S. v. Nixon “one of the four greatest moments in Supreme Court history.” That case, decided unanimously in 1974, required that President Richard Nixon hand over all tape recordings to federal prosecutors.
Sen. Patrick Leahy (D-VT) revived a decade-old scandal, and in doing so lent credence to one of the Democrats’ chief concerns: the concealment of critical records from Kavanaugh’s time as a staffer in the Bush White House.
The scandal, dubbed “Memogate,” erupted in 2003 when it was reported that Republican staffers had stolen thousands of documents from the Senate Judiciary Committee’s Democratic email server between 2001 and 2003 in order to influence the confirmations of controversial nominees. Manny Miranda, the staffer who was ultimately held responsible, initially denied stealing the information, but later, after leaving the Senate, confessed.
At the time, Kavanaugh served in the White House counsel’s office and worked on judicial nominations.
In confirmation hearings in 2004 and 2006, he said he was not aware of and did not receive any stolen materials.
Leahy suggested that information currently deemed confidential by the committee could refute those earlier remarks that Kavanaugh made under oath.
After the exchange—one of the only times Kavanaugh appeared unprepared—Leahy called for the emails concerning the issue to be released.
“There are numerous other committee-confidential emails that shed light on Judge Kavanaugh’s relationship with Miranda. They need to be made public now, before it’s too late,” Leahy said. “They raise serious questions about Judge Kavanaugh’s claim that he never suspected he benefited from this massive hacking of Democratic files. And they also raise questions about his truthfulness under oath in response to the 111 questions he received on this topic the last time he was before the judiciary committee.”
He added, “Sen. Grassley has assured me he will release these documents for my questions tomorrow.”
It remains to be seen whether those records will indeed become public before senators convene on Thursday morning.
Firing a Prosecutor Investigating the President
In 1998, Kavanaugh said he believes a president “can fire, at will, a prosecutor criminally investigating him.” Trump has, for months, floated the possibility of firing Mueller—and according to The New York Times, he tried to do so at least once.
In the meantime, Sen. Chris Coons (D-DE) has been pushing his legislation that would insulate Mueller from attempts by the president to terminate him. Congressional Republicans have warned Trump that firing Mueller would be politically toxic, but GOP leaders have yet to embrace Coons’ legislation.
Coons specifically asked Kavanaugh whether he stands by those comments from 1998.
“I think all I can say, senator, is that was my view in 1998,” Kavanaugh said.
Democrats have argued, especially in light of Michael Cohen’s guilty plea, that Trump should not be able to choose a Supreme Court nominee because Cohen implicated the president in a federal crime that could, potentially, make its way to the high court.
Sen. Richard Blumenthal (D-CT) asked Kavanaugh if he would commit to recusing himself from cases at the Supreme Court that may involve the president. Kavanaugh, again, declined to make that commitment. Blumenthal said he was “troubled and disturbed” by the response.
Prosecuting a Sitting President
The one hypothetical question that Kavanaugh entertained during the hearing came from Sen. Ben Sasse (R-NE), a relatively outspoken critic of Trump, on the subject of whether a sitting president can be prosecuted for a crime. It was a clear reference to the question over whether Trump can be indicted as part of the Russia investigation, a debate that has made its way to the highest level of Trump’s legal team.
Specifically, Sasse presented the hypothetical scenario of a future American president driving a car while intoxicated and committing a homicide by hitting another vehicle. The senator asked Kavanaugh if that president would be “immune from either being sued or being charged with a crime because they're president.”
“No, no one has ever said, I don't think, that the president is immune from civil or criminal process,” Kavanaugh responded. “So ‘immunity’ is the wrong term to even think about in this process.”
Kavanaugh cited the precedent established in Jones v. Clinton, which found that civil proceedings against a sitting president could go forward, but criminal proceedings would wait until the individual leaves office.
“That doesn’t prevent investigations, gathering of evidence, questioning of witnesses, I wouldn’t think, necessarily,” he added, noting the practice of a special counsel’s investigation.