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How The Mueller Probe Could Derail Kavanaugh’s Confirmation

The battle lines have been drawn and the opposing forces are getting ready for a long and sustained fight over Brett Kavanaugh, Donald Trump’s Supreme Court pick.

As NBC News pointed out, in Kavanaugh,

“Trump selected someone who already once secured votes from GOP swing Sens. Susan Collins, R-Maine, and Lisa Murkowski, R-Alaska (back in 2006). What’s more, key Democratic red-state senators like Joe Donnelly, D-Ind., Heidi Heitkamp, D-N.D., and Joe Manchin, D-W.V., released statements Monday saying they’d keep an open mind about Kavanaugh (see below). Add it all up, and it’s very possible that, in the current 51-49 Senate, Kavanaugh could match the 54-45 confirmation vote that Neil Gorsuch got in 2017.”

But even if the red-state Democrats and the moderate Republicans in the Senate all vote for Kavanaugh’s confirmation, there still remains one unpredictable event that could very easily completely derail Kavanaugh’s nomination:  Special Counsel Robert Mueller’s investigation.

There have not been many new developments recently in the Mueller probe, although we’ve been hearing a lot about the possibility of Michael Cohen “flipping” and the first Paul Manafort trial is set to begin on July 25th.

But if Cohen does flip and makes new revelations about the president, or if the Manafort trial exposes new incriminating evidence about Trump’s financial crimes, then with respect to Senate hearings on Kavanaugh’s confirmation, everything changes.

There are two reasons the existence of Mueller’s investigation into Donald Trump may force the Senate to put Kavanaugh’s nomination hearings on hold:

  1. The belief that a president under criminal investigation should not be allowed to appoint someone to the Supreme Court, and
  2. Kavanaugh’s former writings that express his views that a sitting president cannot be charged with crimes.

Ever since Anthony Kennedy announced his retirement from the U.S. Supreme Court, Sen. Cory Booker has said that there should be no vote on any Trump Supreme Court nominee until after the criminal investigation into Donald Trump ends. As Booker pointed out last month:

“If a president is the subject of a criminal investigation, as Donald Trump is, they can’t be expected to make a fair and reasonable nomination to the Supreme Court. Trump is compromised by the fact that issues that could arise associated with the investigation would be resolved by the Supreme Court.”

On June 29, Booker told Rachel Maddow that “constitutional questions about Trump being indicted would be fair game if Senate Republicans hold Supreme Court nominee confirmation hearings.”

And last night, after Trump announced Kavanaugh as his pick for the Supreme Court, Booker was very outspoken about the key issues that he sees coming out during Kavanaugh’s confirmation process, and why he should not be confirmed.

“I’ve been saying emphatically before this and now with even stronger voice that we as the United States Senate, forget partisanship or what have you, to avoid a constitutional crisis, we cannot let this confirmation process go forward. Especially now that we have someone who has clearly said that they have a strong opinion should any of those issues come before the Supreme Court.”

And if there’s a big development in the Mueller probe, Kavanaugh’s previous writings could pose an even bigger problem.

On June 30th we explained in detail the problems caused by Kavanaugh’s views in an article called “Trump Prospect for High Court Thinks Presidents Can’t Be Sued Or Investigated.”

We explained that it was the new nominee’s opinion that “presidents should not be subjected to civil lawsuits, criminal investigations or even questions from attorneys while in office.”

Democrats will now argue — perhaps successfully — that the president should not be able to appoint a justice to the Supreme Court who will probably have to rule on some aspect of the Mueller probe. The president’s 2016 campaign is under investigation for its possible ties to Russian interests, and the president himself could possibly be indicted for his crimes.

In January, Senator Booker and California Senator Kamala Harris were both appointed to the Senate Judiciary Committee where Kavanaugh has to go for confirmation.  With those two outspoken progressive Democrats on the panel, there is no chance that any questions about Donald Trump’s potential indictments — or about Brett Kavanaugh’s view on those indictments — will be left unasked.  

Leo Vidal

I am a lifelong Democrat with a passion for social justice and progressive issues. I have degrees in writing, economics and law from the University of Iowa.

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