Kavanaugh Refuses to Answer Question on Whether a Sitting President Can Be Subpoenaed

By Elana Schor, Politico

05 September 18

The president's Supreme Court nominee is facing a day of contentious questioning.

upreme Court nominee Brett Kavanaugh on Wednesday declined to address whether a sitting president can be subpoenaed, sidestepping one of the most contentious possible outcomes of special counsel Robert Mueller’s investigation of President Donald Trump.

As questioning of Kavanaugh began on the second day of his Judiciary Committee confirmation hearing, he told Sen. Dianne Feinstein (D-Calif.) that he could not answer the “potential hypothetical” of requiring a president to respond to a subpoena while in office. His avoidance comes as Trump’s legal team vows to take the fight over any possible Mueller subpoena of the president to the Supreme Court – where Kavanaugh could sit as soon as next month.

“We’re going to have crisis moments at the Supreme Court on things we can’t even predict, and we need people on the Supreme Court who are prepared for that,” Kavanaugh – who has indicated that a sitting president cannot be indicted – told Feinstein before declining to answer her subpoena question.

Mueller remains in talks with Trump’s legal team over an interview or written responses to questions in the special counsel’s probe of Russian interference in the 2016 election, including questions of whether the president obstructed justice. Trump lawyer Rudy Giuliani said last month that he is ready to challenge any Mueller subpoena “before the Supreme Court, if it ever got there.”

Kavanaugh later declined to address whether Trump or any other president could self-pardon while in office, telling Sen. Patrick Leahy (D-Vt.) that it was “something I have never analyzed.” He also told Leahy that he couldn’t definitively weigh in on whether a president could offer a pardon in exchange for a promise that its recipient wouldn’t provide incriminating testimony.

Kavanaugh’s confirmation hearing started on Wednesday with tension boiling over in its first minutes, as multiple protesters disrupted the start of senators' questioning of the Supreme Court nominee on his views about guns, Obamacare, and other hot-button issues.

Almost immediately after Senate Judiciary Chairman Chuck Grassley (R-Iowa) opened the session by declaring that "today is different" from Tuesday's Democratic protest against the GOP's handling of the nomination, demonstrators began interrupting before being removed from the hearing room by police. Democratic senators, however, are preparing to use their time Wednesday and Thursday to sharply question Kavanaugh in a long-shot effort to persuade the handful of swing votes who remain publicly undecided on confirming him.

The 53-year-old appellate court judge began questioning by outlining his judicial style to Grassley, saying that he has hoped to try cases independently enough that opposing sides would say Kavanaugh "gave me a fair shake."

When asked about separation of powers between the three branches of government and judicial independence, Kavanaugh repeated his previous stance that “no one is above the law.”

The nominee also reiterated his respect for the “precedent on precedent” that 1992’s Casey v. Planned Parenthood decision represents when it comes to the preservation of abortion rights that the high court established in Roe v. Wade.

“I don’t live in a bubble,” Kavanaugh told Feinstein. “I understand the importance of the issue.”

Sen. Orrin Hatch (R-Utah) asked Kavanaugh about widespread sexual harassment allegations against the nominee’s early mentor, former Judge Alex Kozinski, who stepped down from the bench after multiple women revealed predatory encounters. Kavanaugh said that “I don’t remember anything like” the sexually explicit emailing list Kozinski kept in the early 2000s, describing last year’s revelations about Kozinski as “a gut punch.”

"The first thought I had was, no women should be subjected to sexual harassment in the workplace, ever. Including in the judiciary, especially in the judiciary,” Kavanaugh said, using the moment to acknowledge the gravity of the nationwide #MeToo movement against sexual misconduct in the workplace.

One of the moderates facing intense pressure from both sides on President Donald Trump's second Supreme Court nominee, Sen. Joe Manchin (D-W.Va.), visited the hearing room for the start of questioning despite not serving on the Judiciary committee.

The interruptions from protesters on Wednesday followed the arrest of 70 demonstrators during Tuesday's seven-hour-plus day of opening statements on Kavanaugh, according to authorities.

"We are not working with the Democrats. We are working for ourselves," one activist said as the U.S. Capitol Police escorted her from the room.

Democrats' protest against the GOP's management of the confirmation process culminated Tuesday in dozens of interruptions from senators on the committee. Minority-party senators reiterated their long-running objections to Grassley and fellow Republicans' advancement of Kavanaugh with hundreds of thousands of pages of documents on his past record still unreleased.

Despite Democrats’ steadfast opposition, Kavanaugh is expected to be confirmed later this month. On Tuesday, Arizona Gov. Doug Ducey picked former Sen. Jon Kyl (R-Ariz.) to replace the late Sen. John McCain, keeping in place Republicans’ 51-49 majority.

Kavanaugh, who if confirmed will replace retiring Justice Anthony Kennedy, has served on the D.C. Circuit Court of Appeals since 2006 after spending five years in the Bush White House. He is widely known for his work on former independent counsel Kenneth Starr’s investigation into President Bill Clinton.

Democrats will almost surely use Wednesday's session to further challenge Kavanaugh’s position on executive power as it relates to Trump and the Mueller probe. Asked by Hatch about “loyalty” to the president, Kavanaugh distanced himself from Trump’s well-known tendency to seek fealty from those in his administration.

“If confirmed to the Supreme Court, and as a sitting judge, I owe my loyalty to the Constitution,” the nominee said. “That’s what I owe loyalty to.”