clock menu more-arrow no yes mobile

Filed under:

Kavanaugh won’t say whether a sitting president should be subject to a subpoena

He refuses to address “hypotheticals” on executive power.

Senate Holds Confirmation Hearing For Brett Kavanugh To Be Supreme Court Justice
Brett Kavanaugh answers questions during the second day of his Supreme Court confirmation hearings on Capitol Hill September 5, 2018 in Washington, DC. 
Win McNamee/Getty Images
Li Zhou is a politics reporter at Vox, where she covers Congress and elections. Previously, she was a tech policy reporter at Politico and an editorial fellow at the Atlantic.

Democrats were eager to dig into Supreme Court nominee Brett Kavanaugh’s views on executive power at his Senate confirmation hearing Wednesday, given special counsel Robert Mueller’s ongoing investigation into the Trump campaign and Russian election interference.

But given the way Kavanaugh framed his responses, you’d think the Mueller investigation wasn’t happening at all.

Kavanaugh refused to provide a direct answer to questions from senators about how he would handle subpoenas, and whether the president could pardon himself. He argued that these scenarios were hypotheticals that he would not be able to address because of the “Ginsburg rule” — a precedent set by Ruth Bader Ginsburg of not previewing how she would opine on future cases. (Ginsburg, in her hearings, did speak more generally about her previous rulings and her views on settled law.)

When pressed on whether a sitting president can be required to respond to a subpoena, Kavanaugh said simply, “I can’t give you an answer on that hypothetical.” When asked whether a president can pardon himself, he noted, “The question of self-pardons is something I’ve never analyzed. ... It’s a hypothetical I can’t begin to answer.” Repeatedly, Kavanaugh returned to this stock response.

Kavanaugh did make some statements alluding to legal accountability that the president could face

Kavanaugh did offer some insight into his perspective on the executive office and how the president could influence the Supreme Court. The most definitive statements he made reaffirmed his belief in judicial independence, and emphasized that he would not be swayed by the president. They didn’t, however, tangle with specifics.

“No one is above the law,” he said. “[As judges,] we are not supposed to be influenced by political pressure from the executive or from the Congress. We are independent.”

Kavanaugh also praised the ultimate holding in Nixon v. US — which required a sitting president to respond to a subpoena regarding materials tied to the Watergate break-in — rebutting previous reports which have suggested that he disagreed with the decision. Those reports had documented comments Kavanaugh had made in 1999, wondering whether Nixon was wrongly decided. “Maybe the tension of the time led to an erroneous decision,” Kavanaugh said at the time.

Kavanaugh offered up a very different perspective on Wednesday. “I have said that that holding is one of the four greatest moments in Supreme Court history,” he said. “It was one of the greatest moments because the courts stood up for judicial independence in a moment of national crisis.”

Kavanaugh’s views on executive power were unique even among the nominees on Trump’s short list

Kavanaugh’s views on executive power have been among the most contentious aspects of his record because of a 2009 Minnesota Law Review article suggesting that a sitting president should not be subject to a criminal investigation until after Congress has impeached him and removed him from office. He also suggested that the indictment of a sitting president would be exceedingly burdensome.

“I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office,” Kavanaugh wrote in his 2009 piece. “We should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions.” Kavanaugh also noted that the “indictment and trial of a sitting President” would “cripple the federal government.”

According to CNN’s Jim Acosta, the Trump administration reviewed these comments while they were weighing Kavanaugh’s nomination.

Senate Democrats have suggested Trump chose Kavanaugh in part as a shield. “If you look at the entire list of 20 or so people that he had, the one person the president could find on that list that would be most assured to rule in his favor should many of the things you’re describing come before the Supreme Court, is this guy,” Sen. Cory Booker (D-NJ) said during an MSNBC interview said in July.

Kavanaugh on Wednesday argued that these writings were simply ideas that he offered for Congress to consider, inspired by his service in the Bush White House, when he saw how the president handled the response to the September 11 terrorist attacks.

“They were ideas for Congress to consider. They were not my constitutional views,” he said. “I’ve only put out proposals for you all to study to think about a president fighting a war, leading a war.”