Unresolved recusal issues require a pause in the Kavanaugh hearings
Laurence H. Tribe, Hon. Timothy K. Lewis, and Norman EisenTuesday
September 4, 2018
This paper explains why the Constitution as originally designed by the framers requires the Supreme Court nomination of Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit to be put on hold. It takes no view on his ultimate confirmation. But as one of the authors has elsewhere explained,[1] it offends the structure the framers created for a president who is facing mounting personal liability under our Constitution and laws to choose one of the judges in his own case.
Or more likely, multiple cases. Never before in the history of presidential nominations of Supreme Court justices have there been so many matters of the deepest personal impact to the president that may come before the Supreme Court
In addition to legal and procedural questions surrounding possible impeachment proceedings, there are a staggering array of issues with which the nominee may well be presented owing to the historically unprecedented fact that his patron the president was a named subject and, but for hesitation to indict a sitting president, could well have been a target,[2] in a criminal investigation at the very time that he handpicked the judge—reportedly after White House consideration of the judge’s views on some of these very issues. As detailed below, those issues include:
- Whether a president can use the pardon power to shield himself from criminal liability;
- Whether a president can be charged with obstructing justice;
- Whether a president can defy a subpoena for testimony;
- Whether a president can be criminally indicted;
- Whether a president can unilaterally fire a special counsel without cause; and
- Related civil matters involving a president’s personal interests.
FOOTNOTES:
1] Laurence H. Tribe, The Founding Fathers Wouldn’t Want Kavanaugh’s Confirmation to Continue, Washington Post, Aug. 24, 2018, available at https://www.washingtonpost.com/opin...84ece6-a70b-11e8-8fac-12e98c13528d_story.html.
2] Barry H. Berke, Noah Bookbinder, and Norman Eisen, Presidential Obstruction of Justice: The Case of Donald J. Trump, 2nd Ed., Brookings, Aug. 22, 2018, available at https://www.brookings.edu/research/...stice-the-case-of-donald-j-trump-2nd-edition/.
Three 'liberal' lawyers provide an argument as to just why Kavanaugh should recuse himself in cases involving Trump, IF he is seated on the Supreme Court.
Link to the "paper"
Three 'liberal' lawyers provide an argument as to just why Kavanaugh should recuse himself in cases involving Trump, IF he is seated on the Supreme Court.
Link to the "paper"
Every President has a chance of having to face the judges that they appoint for Congress to consider as SCOTUS judge. The complaint here has no merit.
Kavanaugh signaled sitting president couldn't be indicted
Defenders of Supreme Court nominee Brett Kavanaugh are accusing his critics of distorting his views on whether a sitting president can be indicted, but they may be overlooking another key clue about his take on what's likely to be a contentious issue at Kavanaugh's Senate confirmation hearing.
Kavanaugh's allies note that the 2009 Minnesota Law Review article he wrote addressing such subjects advocates for a congressional statute that would exempt the president from civil suits while in office, as well as immunizing him from criminal investigation and prosecution. He does use some pretty strong language about the prospect of a criminal trial of a sitting president, saying it would "cripple the federal government"—an assessment that one could imagine leading a Supreme Court justice to step in to avert such a prospect.
(. . .)
During a 1998 Georgetown Law School conference on what would turn out to be the dim prospects of renewing the independent counsel law, moderator Mark Tuohey (who hired Kavanaugh onto the staff of independent counsel Ken Starr) put a question to the panel:
"How many of you believe, as a matter of law, that a sitting president cannot be indicted during the term of office?" Tuohey asked.
Kavanaugh's hand went up, as did more than half of the experts on the panel, including some with liberal political outlooks.
Kavanaugh's stance—or his stance at that time— is not an unusual or outlandish one. In fact, it's the official position of the Justice Department, formally articulated in a 1973 opinion under President Richard Nixon and reaffirmed in 2000 under President Bill Clinton. But it could be that there's less nuance to Kavanaugh's view than his supporters are suggesting.
Kavanaugh won’t say if he thinks a president should testify in a criminal trial
Brett Kavanaugh on Wednesday refused to say whether he believed that a sitting president could be forced to testify in a criminal case — a key question considering special counsel Robert Mueller’s probe into Russian meddling in the 2016 election.
Trump, could face a subpoena in the case, and the top Democrat on the committee, Sen. Dianne Feinstein of California, asked the president’s Supreme Court nominee whether he thought a sitting president could “be required to respond to a subpoena.”
“That’s a hypothetical question. As a matter of the canons of judicial independence, I can’t give you an answer on that hypothetical question,” he said during the second day of his hearing before the Senate Judiciary Committee.
No merit? when Kavanaugh has stated that he doesn't believe a sitting President can't be charged with crimes while in office?
and from today's hearing in the Senate
Now - you were saying . . .
The 'Excuse and Rationalize the Lord God Trump" crowd will never be convinced and simply don't care that Kavanaugh was nominated by an unindicted co-conspirator in federal crimes.
It's really that simple. For them, it's all about naked power, acquiring it and maintaining it, at all costs.
I'm still saying the same thing. :shrug: Do you deny that every single president has a chance of facing the people that they nominate for SCOTUS?
Your own links/quotes indicate that what Kavanaugh thinks in regards to indictment is not something new or special to him. In fact it shows both sides of the political spectrum hold this view. That he also did not say if he thinks a President should testify in a criminal trial is not all that special either. Lots of SCOTUS nominees will quite often not say one way or the other on specific questions like that. So you still do not have anything.
BTW, you DO know that any defendant in a criminal trial is not required to testify right? In fact the court/prosecutor is prohibited from making them testify. The defendant can volunteer to testify, but they do not have to. As such that is already settled law and such a question towards Kavanaugh is nothing more than political grandstanding.
Should Ginsburg recuse herself ??
https://www.google.com/amp/thehill....-more-problems-why-the-notorious-rbg-must?amp
Nixon was an unindicted co-conspirator, are any of his appointments any less valid ??
The 'Excuse and Rationalize the Lord God Trump" crowd will never be convinced and simply don't care that Kavanaugh was nominated by an unindicted co-conspirator in federal crimes.
It's really that simple. For them, it's all about naked power, acquiring it and maintaining it, at all costs.
Now - you were saying . . .
Did any of Nixon's appointments ever stare down at him from the judicial bench? Were they appointed to a seat with the potential of ruling upon Nixon's criminal behaviour?
Good to see you parrot a meaningless term. You're an unindicted co-conspirator to...just wait...the indictment is come, really it is guys!
Did any of Nixon's appointments ever stare down at him from the judicial bench? Were they appointed to a seat with the potential of ruling upon Nixon's criminal behaviour?
Who presides over the senate impeachment trial ?? The chief justice of the SCOTUS. Who was the chief justice at that time ?? Warren E. Burger. Who appointed Warren E. Burger ?? You get one guess.
Please note the year in which Burger became the Chief Justice. What year did the Watergate burglary happen?
Three 'liberal' lawyers provide an argument as to just why Kavanaugh should recuse himself in cases involving Trump, IF he is seated on the Supreme Court.
Link to the "paper"
Kavanaugh isn't going to recuse himself on anything to do with the President... hell, he took part in the consultations on the Bush detainee policies in 2002, lied about his involvement during his confirmation hearings, and then proceeding to hear cases challenging those very same policies as a DC Circuit Judge. If, despite all of this, he still gets confirmed to the Supreme Court, then you'd be a fool to think he'd conduct himself any differently.
Three 'liberal' lawyers provide an argument as to just why Kavanaugh should recuse himself in cases involving Trump, IF he is seated on the Supreme Court.
Link to the "paper"
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