Senator Chuck Schumer said Kavanaugh would shield Trump should the Mueller investigation end up before the supreme court
The Senate minority leader, Chuck Schumer, has a theory about why Donald Trump settled on Judge Brett Kavanaugh. On Tuesday he said that Trump is “worried” about an investigation over Russian collusion in the 2016 election and believes Kavanaugh would serve as a “barrier” should the inquiry end up before the supreme court.
As a brutal confirmation battle over Justice Anthony Kennedy’s replacement begins, Schumer said Kavanaugh should expect to face tough questions over his past writings that argue a sitting presidents should be exempt from lawsuits and criminal investigations.
“Why did he stick with Kavanaugh?” Schumer said at a press conference outside the supreme court on Tuesday. “Because he’s worried that Mr Mueller will go to the court and ask that the president be subpoenaed and ask to do other things necessary to move the investigation forward and President Trump knows that Kavanaugh will be a barrier to preventing that investigation from going there.”
Kavanaugh, a reliably conservative judge on the US court of appeals for the DC circuit, has been involved in some of the highest-profile political battles of the modern era, including the impeachment of Bill Clinton.
Trump introduced Kavanaugh to the country at 9pm on Monday as a judge who had served with “great distinction, authoring over 300 opinions which have been widely admired for their skill, insight, and rigorous adherence to the law”. Before the ceremony finished, activists outside the Supreme Court were already waving signs that said “Stop Kavanaugh”.
Senate Democrats have few options to derail Kavanaugh’s nomination, but some will join activists in making the case to the American people that Kavanaugh’s confirmation could shield Trump from civil lawsuits and criminal investigation.
In a 2009 article for the Minnesota Law Review, Kavanaugh argued that the president should be exempt from “time-consuming and distracting” lawsuits and investigations, which he said would “cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas”.
In the piece he does not suggest that the supreme court should interpret executive authority differently. Rather, he draws from his experience working for independent counsel Ken Starr, whose zealous investigation of Bill Clinton resulted in a recommendation for impeachment, and as a top aide in the Bush White House to make the case that Congress should pass a law excusing the president from criminal prosecution and investigation while in office.
Democrats on Tuesday made clear that this would be a focus of their criticism of Kavanaugh given the interest in the legal challenges facing Trump on several fronts.
“We knew with any of the 25 nominees that healthcare and women’s health and right to choose would be important,” Schumer said, referencing a list of conservative judges drawn up by the Heritage Foundation and the Federalist Society. “But Kavanaugh brings a new prominence to the issue of executive power,” he added.
Trump is facing a lawsuit filed by Summer Zervos, a former contestant on The Apprentice who said that he groped and kissed her. Last month, a judge paved the way for Trump to be deposed.
Meanwhile, the special counsel Robert Mueller is in negotiations with Trump’s lawyers over a request to interview the president as part of his investigation into possible collusion between Russia and the Trump campaign during the 2016 presidential election – a standoff that could end up before the supreme court.
Senator Richard Blumenthal, a Democrat from Connecticut and a member of the judiciary committee, said his colleagues should press Kavanaugh to commit to recusing himself from cases involving Mueller’s investigation.
“Judge Kavanaugh, if he is a justice, would be the swing vote in deciding whether [Trump] can pardon himself – a get out of jail free pass – that’s the accountability that would be lost if Judge Kavanaugh is confirmed,” he said.
On the right, conservatives are on the verge of realizing their dream result for the supreme court and are taking no chances. Conservative groups are leading a huge campaign to combat the attacks and pressure vulnerable red state Democrats to support the nominee.
Judicial Crisis Network, a conservative advocacy group, is already funding ads in states such as North Dakota, West Virginia and Indiana, where three Democratic senators are up for re-election. The group also launched ConfirmKavanaugh.com, a website that features statements of support for the judge.
On Tuesday, the Senate majority leader, Mitch McConnell, met with Kavanaugh, his first of many meetings with senators before a confirmation hearing.
Before the meeting, McConnell accused Democrats of following a “partisan playbook” to oppose an “impressive nomination”.
“Senate Democrats were on the record opposing him before he’d even been named, before the ink was even dry on Justice Kennedy’s resignation,” McConnell said in a speech on the floor on Tuesday. “This is a tell-tale sign that some of our colleagues are throwing thoughtful, independent judgment out the window and are outsourcing their thinking on this matter to far-left special interest groups.”