This is How The Mueller Probe Can Complicate Kavanaugh's Pick for The Supremes

 

By making federal appeals court Judge Brett Kavanaugh his Supreme Court pick, President Donald 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.

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 there’s one significant wild card to Trump picking Kavanaugh: the Mueller probe.

And if there’s a big development in the investigation — we haven’t really had one since April when the FBI raided Trump lawyer Michael Cohen’s offices — then Kavanaugh’s 2009 law review article could be an impediment to confirmation.

In the article, Kavanaugh argues that a sitting president shouldn’t be distracted by civil lawsuits or criminal investigations while in office. “Having seen first-hand how complex and difficult that job [of president] is, I believe it vital that the President be able to focus on his never-ending tasks with as few distractions as possible,” he wrote. “Looking back to the late 1990s, for example, the nation certainly would have been better off if President Clinton could have focused on Osama bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal-investigation offshoots.” And he called for Congress to consider passing a law to defer any civil lawsuit or criminal investigation against a president until after he leaves office.

Notably, Kavanaugh doesn’t pass constitutional judgment on this matter. “The result the Supreme Court reached in Clinton v. Jones — that presidents are not constitutionally entitled to deferral of civil suits — may well have been entirely correct; that is beyond the scope of this inquiry.” But he does make his personal opinion clear: “The indictment and trial of a sitting President, moreover, would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas. Such an outcome would ill serve the public interest, especially in times of financial or national security crisis.”

What’s especially striking about Kavanaugh’s opinion in that 2009 law review article is that it contradicts his work for Ken Starr, who investigated President Clinton in the Whitewater/Lewinsky probes.

As we wrote after Justice Anthony Kennedy announced his retirement late last month, what makes this Supreme Court fight different from the ones during the Bush or Obama years is the Mueller probe. The president's 2016 campaign — and the president himself — is under investigation for its possible ties to Russian interests.

And if there's a significant development in the next month (another indictment, guilty plea, or battle over a subpoena), Democrats could argue that the president shouldn't be able to appoint a justice to the court who will probably have to rule on some aspect of the Mueller probe. And that becomes even more potentially explosive given Kavanaugh’s article in 2009.

HERE’S WHAT THE SWING GOP AND DEMOCRATIC SENATORS SAID ABOUT KAVANAUGH’S NOMINATION

As mentioned above, here are the statements that key GOP and Democratic senators released last night on Kavanaugh’s nomination, per NBC’s Frank Thorp, Garrett Haake and Rebecca Shabad:

• Susan Collins: “Judge Kavanaugh has impressive credentials and extensive experience, having served more than a decade on the D.C. Circuit Court of Appeals. I will conduct a careful, thorough vetting of the President’s nominee to the Supreme Court, as I have done with the five previous Supreme Court Justices whom I have considered.”
• Lisa Murkowski: “I intend to review Judge Kavanaugh’s decisions on the bench and writings off the bench, and pay careful attention to his responses to questions posed by my colleagues on the Senate Judiciary Committee.”
• Joe Donnelly: He said before the Kavanaugh pick that he declined an invitation to appear at last night’s White House announcement "so that I can meet first with the nominee in a setting where we can discuss his or her experience and perspectives."
• Heidi Heitkamp (per a spokeswoman): “She has made clear — as she said to the president in person two weeks ago — that she considers fully vetting Supreme Court nominees one of the most important jobs of any U.S. senator, and she plans to fulfill that critical duty.”
• Joe Manchin: “I will evaluate Judge Kavanaugh’s record, legal qualifications, judicial philosophy and particularly, his views on healthcare. The Supreme Court will ultimately decide if nearly 800,000 West Virginians with pre-existing conditions will lose their health care. This decision will directly impact almost 40% of my state, so I’m very interested in his position on protecting West Virginians with pre-existing conditions.”

INTEREST GROUPS PLAN TO SPEND MILLIONS ON THE CONFIRMATION FIGHT

NBC’s Leigh Ann Caldwell: “The Charles Koch-backed organization Americans for Prosperity announced Monday that it will spend "seven figures" on grassroots organizing, paid media and door-to-to door canvassing in the ten states that Democrats are trying to defend in November. And other political interest groups are planning a barrage of campaign ads as well as on-the-ground grassroots activities. Among those Democrats bearing the brunt will be Sens. Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia.”

More: “Before Monday's announcement, those [Democrats] were already the targets of at least $1.4 million worth of advertising from the conservative Judicial Crisis Network, an umbrella organization pushing for the confirmation of Trump’s nominee. The ad says, ‘extremists will lie and attack the nominee. But don’t be fooled.’” 

NBC News