Dodges debates

Kavanaugh dodges debates that could touch Trump

The president's Supreme Court nominee appears to flounder in late questioning over who he spoke to about special counsel Robert Mueller's investigation.

By ELANA SCHOR

Supreme Court nominee Brett Kavanaugh on Wednesday declined to address whether a sitting president can be subpoenaed or if presidents can fire prosecutors investigating them, sidestepping two potential flashpoints in special counsel Robert Mueller's investigation of President Donald Trump.

During early questioning in the marathon second day of Kavanaugh’s 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. Kavanaugh later declined to directly say whether he continues to believe sitting presidents can fire prosecutors conducting a criminal investigation of them, a stance relevant to Trump’s past threats to Mueller’s job.

“All I can say,” Kavanaugh told Sen. Chris Coons (D-Del.), “is that was my view in 1998.”

His avoidance of thorny questions regarding the special counsel’s probe 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.”

But in a late-hour moment, Kavanaugh appeared to stumble when asked whether he had discussed the ongoing Mueller probe with others, including attorneys at Kasowitz, Benson & Torres, the law firm founded by Marc Kasowitz, the attorney Trump retained briefly in 2017 to help with the Mueller probe.

“Well it’s in the news everyday,” he replied.

"I think you're thinking of someone and you don't want to tell us,” said Sen. Kamala Harris after repeatedly pressing Kavanaugh on who he spoke to. She offered no evidence for who, if anyone, Kavanaugh spoke to.

Kavanaugh earlier 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. 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.

Senate Minority Leader Chuck Schumer (D-N.Y.) later employed an obscure procedural maneuver to force GOP leaders to adjourn the upper chamber in order to keep Kavanaugh’s confirmation hearing going. “We will not consent to business as usual on the Senate floor today,” Schumer said.

Inside the hearing room, Democratic senators sharply questioned Kavanaugh in a long-shot effort to persuade the handful of swing votes who remain publicly undecided on confirming him. Senate Minority Whip Dick Durbin (D-Ill.) pressed the nominee on a dissent in which he argued against allowing an undocumented immigrant teenage to obtain an abortion, charging him with incorrectly interpreting parental consent provisions involved. Sen. Sheldon Whitehouse (D-R.I.) asked him unsuccessfully for a direct answer on legal challenges to Obamacare’s protections for those with preexisting conditions.

Speaking from the White House on Wednesday, Trump told reporters he watched the confirmation hearing "for a little while" and showered praise on his nominee.

"He was born for the position,” Trump said.

Kavanaugh kept his cool amid frequent demonstrator disruptions throughout the long day and rarely appeared rattled by Democratic questioners, although Coons appeared to carve a chink in the nominee’s armor by pressing him on his views about whether a sitting president can be indicted.

Kavanaugh had weighed in on that thorny legal debate – in which the Department of Justice has sided against indictment before a president leaves office – in 1998 and again in 2009, when he wrote that a “serious constitutional question exists” about such presidential indictments. Nonetheless, Kavanaugh told Coons that he has not “taken a position” on the constitutionality of indicting a president in office.

The clash heartened Democrats who are trying to chip away at the nominee’s credibility. "Right now, the American people are seeing Kavanaugh sweat under the lights, he’s evasive, and that reinforces the understanding that he’s got something to hide,” Sen. Elizabeth Warren (D-Mass.) said in an interview.

But the 53-year-old appellate court judge began the day on a self-assured note 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.”

However, he declined to validate Roe or affirmative-action action cases on the merits in the same way that he did Brown v. Board of Education, the landmark civil-rights case that he deemed “the single greatest moment in Supreme Court history.”

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 he was unaware of the serial harassment and 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.”

Kavanaugh used the moment to acknowledge the importance of the nationwide #MeToo movement against sexual misconduct in the workplace and later told Sen. Mazie Hirono (D-Hawaii) that “I have no reason not to believe Kozinski’s accusers.

Hirono also pressed Kavanaugh on whether he was aware of spousal abuse allegations against veteran GOP aide Rob Porter before recommending him to serve as Trump’s staff secretary – an episode that’s retold in Bob Woodward’s forthcoming book on the tumult-plagued White House, but one Kavanaugh consciously declined to confirm. Nonetheless, Kavanaugh said he was unaware of Porter’s behavior in advance.

Sen. Cory Booker (D-N.J.) grilled Kavanaugh on his past stances regarding diversity promotion, citing emails that the nominee couldn’t immediately access, in part because lawmakers can only view them on a “committee-confidential” basis. The taut exchange resulted in scant direct answers from Kavanaugh, but Booker made that job harder by talking for more than three times as many minutes as the judge.

Two moderates facing intense pressure from both sides on President Donald Trump's second Supreme Court nominee, Sens. Joe Manchin (D-W.Va.) and Angus King (I-Maine), visited the hearing room for portions of the questioning despite not serving on the Judiciary committee.

The interruptions from protesters on Wednesday followed the arrest of 70 demonstrators on Tuesday, according to authorities. While Democrats spent much of Tuesday lamenting Grassley and fellow Republicans' advancement of Kavanaugh with hundreds of thousands of pages of documents on his past record still unreleased, the bulk of their questions Wednesday homed in on substance, not process.

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, restoring Republicans’ 51-49 majority to full strength.

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 and working on former independent counsel Kenneth Starr’s investigation into President Bill Clinton.

Even as multiple Democrats used Wednesday's session to further challenge Kavanaugh’s position on executive power as it relates to Trump and the Mueller probe, the nominee took opportunities he was given to profess his independence. 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.”