WASHINGTON — New Jersey Democratic Sen. Cory Booker sent a letter to Supreme Court nominee Brett Kavanaugh Friday asking the judge to pledge to recuse himself from “any case that pertains to the special counsel’s investigation or that otherwise may immediately impact the President and his associates as it relates to the ongoing criminal investigation.”
In the letter obtained Friday by Yahoo News, Booker said his concern is based on past comments Kavanaugh made indicating that he believes “a sitting President cannot be criminally indicted, or even be investigated.”
“This is a unique situation: President Trump could effectively be choosing his own judge, contrary to basic principles of the rule of law. Your recusal would eliminate that possibility,” Booker wrote.
White House spokesperson Raj Shah pointed out that Booker made a statement calling Kavanaugh a “non-starter” the same night Kavanaugh’s nomination was announced.
“Sen. Booker is not taking the Senate’s constitutional duty to ‘advise and consent’ seriously, which is why he called the Judge’s nomination a ‘non-starter’ the moment he was announced, before meeting with him or reviewing his record,” Shah said.
Shah further suggested having judges preemptively recuse themselves from hypothetical cases based on who nominated them could undermine the legal system as a whole.
“What he has demanded would violate the bedrock constitutional principle of judicial independence by pressuring a sitting judge to pledge any decision on a particular matter or case, including the decision whether to hear the case, for political reasons,” said Shah.
Trump announced his nomination of Kavanaugh, who is a federal judge in Washington, D.C., on July 9. At the time, White House officials said they expected Kavanaugh would be confirmed quickly.
This week, Booker, who is a member of the Senate Judiciary Committee, has been raising the alarm about Kavanaugh’s views on prosecutors’ ability to conduct criminal investigations of a sitting president. On Wednesday, Booker held a press conference to discuss a video that emerged of Kavanaugh speaking at an event in 2016 where he said he would “put the final nail in” a 1988 Supreme Court ruling that upheld the constitutionality of provisions that created an independent counsel. Kavanaugh identified that case when asked if he could name one that he believed should be overturned.
Booker’s letter to Kavanaugh cited that comment as well as comments the judge made at a 1998 event where he said “it makes no sense at all to have an independent counsel looking at the conduct of the President.” Additionally, Booker noted a 1998 article Kavanaugh wrote where he said that only Congress should be allowed to investigate a sitting president and that a “criminal prosecution can occur only after the President has left office.”
In Friday’s letter to Kavanaugh, Booker noted that Trump has reportedly demanded the loyalty of top figures in his administration. Booker further suggested the president deliberately picked Kavanaugh for the Supreme Court because of the judge’s views on these issues.
“I am deeply concerned that President Trump has selected you in part because of the specific views you have expressed about presidential power and authority, which could affect how the Supreme Court decides any future cases involving the Special Counsel’s investigation,” Booker wrote.
Trump is a subject of special counsel Robert Mueller’s investigation into Russia’s interference in the 2016 presidential election. Multiple former members of Trump’s campaign team have been indicted as part of the probe, which is looking into whether the president’s allies cooperated with Russia’s efforts. Trump has repeatedly denied there was any collusion between his campaign and Russia, and referred to the Mueller probe as a “witch hunt.”
In his letter to Kavanaugh, Booker described multiple potential situations where Supreme Court rulings could impact the Mueller probe.
“There are a number of issues related to Special Counsel Mueller’s investigation that may ultimately end up before the Supreme Court, including whether the President can pardon himself, whether a sitting President can be criminally indicted, whether a President can end a criminal investigation into his own conduct, whether the President can refuse to comply with a subpoena, whether the President can personally fire a Special Counsel, whether the President can interfere in the investigation by replacing the Deputy Attorney General, or whether a Special Counsel can investigate a sitting President, among other questions,” wrote Booker.
Mueller’s position as the special counsel is different from the independent counsels Kavanaugh has explicitly criticized. At his press conference, Booker acknowledged there are differences, but stressed that Kavanaugh’s various comments have made his views on criminal investigations involving the president abundantly clear.
“There’s absolutely legal distinctions, but even the way he said it … he said this has already been sort of overturned or ended, but I want to put a nail in the coffin, a very dramatic view,” Booker said of Kavanaugh, adding, “With what he wrote in his late 1990s law review article, that combines to a clarity of intent and purpose that he believes … that a president of the United States should not be the subject of a criminal investigation, that he believes that a president of the United States should have the power to dismiss such an investigation, that he believes that a president of the United States, in a sense, should have what is effectively immunity.”
At his Wednesday press conference, Booker said he would increasingly focus on the idea Kavanaugh could pose a threat to the Mueller investigation in an attempt to block the nomination. Booker pointed out Trump selected Kavanaugh from a list of over 20 judges recommended by conservative groups and that many of those other jurists did not have as clearly defined opposition to criminal investigations into a sitting president.
“What is clearly important is … what has this nominee said that they will do? President Trump picked the one person he can be confident that, once they’re on the Supreme Court, they will uphold the president’s loyalty test,” said Booker, adding, “This is a president who seems to be right now confident he has somebody who will protect him should this go to the next level of a presidential subpoena or a presidential indictment or what have you.”
Booker further said Trump could be “confident” in Kavanaugh “based upon his writings and his public statements.”
“This is somebody who will be loyal to the president and not to the rule of law,” Booker said.
Booker and other Democrats have also been raising concerns that another potential Trump appointee could have been selected as part of an effort to undermine the Mueller probe. On July 11, Brian Benczkowski was confirmed by the Senate as assistant attorney general for the criminal division of the United States Department of Justice. Democrats have expressed alarm over Benczkowski’s ties to a Russian bank. As an attorney for a corporate law firm, Benczkowski worked for Alfa Bank, including helping the company investigate reports its computers were in contact with Trump’s real estate company during the 2016 presidential campaign. On the day before Benczkowski was confirmed, Booker posted a video on Twitter where he noted Benczkowski would end up in overseeing Mueller’s investigation if Deputy Attorney General Rod Rosenstien is “somehow removed.”
“Alfa Bank is a Russian bank with heavy influence from Russian oligarchs, really part in many ways potentially of the larger story of this investigation,” Booker said of Benczkowski. “He’s refused should he be confirmed to recuse himself from any of these issues. So, this can’t just slip by.”
Read Booker’s letter to Kavanaugh below.
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