Showdown on a Trump Subpoena Could Overshadow Brett Kavanaugh’s Confirmation

Judge Brett M. Kavanaugh, who visited the Capitol with with Vice President Mike Pence on Tuesday, has expressed deep skepticism of the wisdom of forcing a sitting president to answer questions in criminal cases.

WASHINGTON — It is not every day that a potential constitutional showdown over a presidential subpoena coincides with a confirmation hearing for a crucial Supreme Court seat. Less likely yet is a nominee who has written extensively about the very question at the heart of the dispute.

But that novel historical moment is here.

“It is not at all far-fetched to think that the question of whether President Trump must respond to a subpoena could come before the Supreme Court shortly after the confirmation process,” said Walter Dellinger, who served as acting United States solicitor general in the Clinton administration.

Mr. Trump’s choice for the court, Judge Brett M. Kavanaugh, has expressed strong support for executive power, hostility to administrative agencies and support for gun rights and religious freedom.

Those are all conventional positions among conservative lawyers and judges. But there is one stance that sets Judge Kavanaugh apart, and it could not be more timely: his deep skepticism of the wisdom of forcing a sitting president to answer questions in criminal cases.

“I don’t know of any justice who has staked out as strong a position on presidential immunity even from questioning as Judge Kavanaugh has,” Mr. Dellinger said.

Robert S. Mueller III, the special counsel investigating Mr. Trump and his associates, raised the prospect of subpoenaing the president during a March meeting with his lead lawyer at the time, John Dowd. Mr. Trump’s lawyers responded that they were confident that they would prevail in a court fight over whether a sitting president could be required to comply with a subpoena.

If Mr. Mueller goes down that road, the dispute could quickly reach the Supreme Court. And if Judge Kavanaugh is on the court by then, it could thrust him into the middle of an issue he has been wrestling with for most of his adult life.



Judge Kavanaugh On Key Issues

The confirmation fight over President Trump’s Supreme Court nominee is underway. Here is what Judge Kavanaugh has said about the justices he admires, Roe v. Wade and the presidency.

“White House experience really helps refine what one might call one’s ‘b.s. detector’ for determining when the executive branch might be exaggerating or misstating how things actually work, or the problems that would supposedly ensue from a particular legal interpretation. It gives you great respect for the presidency. But that doesn’t translate into undue deference. When Justice Kennedy says something, I listen — me and 320 million other Americans. If confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully and fully, that would be binding precedent of the court. It’s been decided by the Supreme Court —” “I asked you your own opinion —” “And I’m saying, if I were confirmed to the D.C. Circuit, Senator, I would follow it. It’s been reaffirmed many times, including in Planned Parenthood versus —” “I understand. But what is your opinion? You’re not on the bench yet. You’ve talked about these issues in the past to other people, I’m sure —” “The Supreme Court has held repeatedly, Senator, and I don’t think it would be —” “O.K. —” “appropriate for me to give a personal view on that case —” “Not going to answer the question.” “He’s been one of the most consequential jurists in American history. No doubt about it. And his basic idea was: Pay attention to the words of the Constitution and pay attention to the words of the statutes that Congress passes. A very simple and easily conveyed idea. But it shows how far the Supreme Court had strayed from those ideas before Justice Scalia came on the scene. The Constitution is largely a document of majestic specificity and those specific words have meaning, which absent constitutional amendment, continue to bind us as judges, legislators and executive officials. The federal judiciary is really, as I said, many times — it’s one of the crown jewels, if not the crown jewel of our constitutional democracy and it ultimately depends on getting good people willing to become judges in our system.”

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The confirmation fight over President Trump’s Supreme Court nominee is underway. Here is what Judge Kavanaugh has said about the justices he admires, Roe v. Wade and the presidency.CreditCredit...T.J. Kirkpatrick for The New York Times

Some Democrats have called on Judge Kavanaugh to promise to recuse himself from Supreme Court cases involving Mr. Trump. But the fact that a nominee has written about a legal issue would not ordinarily require him to disqualify himself, said Stephen I. Vladeck, a law professor at the University of Texas.

“We don’t tend to demand recusal of judges because they’ve previously written about the substantive legal questions,” he said. “It’s more about whether there is an actual or apparent conflict of interest.”

As a young lawyer, Judge Kavanaugh worked under Kenneth W. Starr, the independent counsel who investigated President Bill Clinton. That experience, and later service as staff secretary to President George W. Bush, caused him to question the wisdom of criminal investigations of sitting presidents.

“I believe that the president should be excused from some of the burdens of ordinary citizenship while serving in office,” Judge Kavanaugh wrote in 2009 in the Minnesota Law Review. Among those burdens, he said, were responding to civil lawsuits and criminal charges.

He said Congress should consider imposing limits on such proceedings.

“Even the lesser burdens of a criminal investigation — including preparing for questioning by criminal investigators — are time-consuming and distracting,” Judge Kavanaugh wrote. “Like civil suits, criminal investigations take the president’s focus away from his or her responsibilities to the people. And a president who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as president.”

Judge Kavanaugh said the proceedings could resume after a president left office and that impeachment remained an option before then.

Judge Kavanaugh was setting out his views on sound legislative policy and not what current law requires. Still, there is some reason to think he would not be inclined to force Mr. Trump to comply with a subpoena from Mr. Mueller.

But it is not at all clear that a Justice Kavanaugh would hold the crucial vote in such a clash, Professor Vladeck said. “I have a hard time seeing any scenario in which Kavanaugh would be the decisive vote on a question like this,” he said.

When confronted with similar questions in the past, the Supreme Court tried very hard to find consensus.

“On the issue of whether the president is categorically entitled to decline to respond to a grand jury subpoena,” Mr. Dellinger said, “we have two unanimous decisions very close to resolving the question.”

Those unanimous decisions ruled against Presidents Richard M. Nixon and Bill Clinton, with Nixon and Clinton appointees voting against the presidents who had placed them on the court.

Those precedents — and the unified courts that issued them — will be much on the mind of Chief Justice John G. Roberts Jr. should a Mueller subpoena dispute reach the court, said David Strauss, a law professor at the University of Chicago.

“The justices must understand that it would be a disaster for the court, as an institution, to divide 5-4 on the question whether Trump can ignore a subpoena, with two Trump appointees in the majority,” he said. “There will be enormous pressure on the chief justice — including, in fact especially, pressure from his own sense of his place in history — to deliver a unanimous court.”

Charles Fried, a law professor at Harvard who was solicitor general in the Reagan administration, said he had grave doubts about whether the current Supreme Court was capable of a unified decision.

“This is not then,” he said. “This is now. The court is polarized in a way that scares the bejesus out of me.”

In 1974, in United States v. Nixon, the Supreme Court unanimously ruled that President Nixon had to comply with a subpoena seeking tapes of his conversations in the Oval Office. Chief Justice Warren E. Burger, a Nixon appointee, wrote the decision.

“A lot of people think of U.S. v. Nixon as Burger’s finest hour,” Professor Strauss said.

The decision concerned evidence rather than testimony, and that could make a difference. On the one hand, the tapes were deeply revealing and embarrassing, while testimony is usually the product of intense preparation and may be subject to on-the-spot objections from the witness’s lawyers. On the other hand, testifying is not a task that can be delegated to underlings like the production of documents.

In 1997, the Supreme Court unanimously allowed a sexual harassment suit against Mr. Clinton to move forward while he was in office. Both of his appointees, Justices Ruth Bader Ginsburg and Stephen G. Breyer, voted against him.

Mr. Dellinger argued the case on behalf of the federal government, ending up on the losing end. He said the logic of the decision suggested that Mr. Trump would face an uphill fight in seeking to refuse to comply with a criminal subpoena. “In a criminal matter,” he said, “the case is stronger for requiring presidential testimony.”

Professor Strauss, who was on the legal team representing Mr. Clinton, agreed. “Anyone can bring a civil case,” he said. “A subpoena in a criminal case can be issued, by the prosecution, only when a high government official — in this instance, an appointee of the president’s own Justice Department — has decided it’s necessary.”

But Professor Fried said the leading precedents do not directly answer the questions that would be posed by a Mueller subpoena.

“Claims of privilege that have never been tested down to the wire might have considerable force,” he said.

The Supreme Court could also find a middle ground, saying that presidents do not have absolute immunity from subpoenas seeking testimony in criminal investigations but that prosecutors must make a detailed showing that they need the testimony. The court could issue a unanimous decision on what the standard is but differ on whether Mr. Mueller had met it.

The Supreme Court’s last decision on presidential power, upholding Mr. Trump’s travel ban, was decided by a 5-to-4 vote that divided along partisan lines, with the court’s Republican appointees in the majority. That suggests, though, that replacing Justice Anthony M. Kennedy, who was in the majority, with Judge Kavanaugh would not alter the balance of power on the court on such questions.

The Supreme Court may not have time for leisurely deliberation, Mr. Dellinger said. “These issues can move to the Supreme Court in a matter of weeks, as they did in the Nixon case,” he said.

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