MAJOR UPDATE: Bad News and Woes For Trump, Kavanaugh, and Confirmation

The public needs to react to this broken GOP-run Congress

Vacant 1-year (for Obama not filled); now ASAP (for Trump)

(Two vacancies in reality)

This update is rather long but it ties into the original post that follows below. I wanted to tie this update into that for continuity.

This update is thought-provoking and comes from the Washington Post via MSN here:

If Trump declines an interview, Mueller will probably hit him with a subpoena to appear before the grand jury, as he has privately threatened to do. But on ABC’s “This Week,” another Trump lawyer, Jay Sekulow, flatly stated that if this happened, Trump’s team will fight it all the way to the top, saying in essence: “It would go to the Supreme Court. A subpoena for live testimony has never been tested in court as to a president of the United States.” 

(His Translation: If Trump decides against a Mueller interview we are going to test this).

What this means is that, in advance of Kavanaugh’s hearing, we may already know that Kavanaugh could end up being the deciding vote on the question of whether any president (now Trump) can be compelled to testify to a grand jury. Now, it is possible that the current court could rule on such a matter sooner (the eight justices might deadlock, defaulting to a lower court). 

But it’s also perfectly plausible, depending on how long Trump’s team takes to make a decision and what happens in the courts afterward, that this could be headed for a showdown in front of a high court with Kavanaugh on it. Kavanaugh’s expansive views of executive power and privilege have been widely debated.

Kavanaugh argued in 2009 “We should not burden a sitting president with criminal investigations” suggesting the remedy was Congress passing a law to preclude this, thus he doesn’t 

necessarily think presidents are constitutionally protected from such probes. He also said that the decision forcing Richard Nixon to turn over the Watergate tapes might have been “wrongly decided,” but then he also hailed it as a great moment in judicial history, in which the courts “were not cowed and enforced the law.”

Thus, Kavaaugh could be classified as either “wishy-washy or a level-headed moderate” (the new swing vote as it were).

If we learn that Trump is being subpoenaed for an interview against his will, this would suddenly invest the question of what Kavanaugh really believes on these issues and whether he would recuse himself — with both practical urgency and immediacy. 

We will know before Kavanaugh’s hearing that he may soon be ruling on such a matter — in particular, the question of whether Trump can be compelled to testify.

Brian Fallon, executive director of Demand Justice, which is leading the fight against Kavanaugh, told Greg Sargant, the reporter: “Sekulow’s comments make clear that the question of whether a sitting president must be responsive to a subpoena may not be a hypothetical for very much longer.” 

Fallon then continued: “Kavanaugh owes his appointment to the man who may soon be a party in a case coming before the Supreme Court. Plus Kavanaugh has already expressed strong views on whether a sitting president should be able to be ensnared in criminal proceedings. If this showdown materializes in the middle of the confirmation battle, it will catapult Kavanaugh’s expansive views on presidential power to the front burner. At the very least, Kavanaugh ought to be forced to commit to recusing himself from any matter arising out of Mueller’s probe.”

It is unlikely that Kavanaugh will pledge to recuse himself during his hearing. 

It is also likely that he will try to avoid offering sufficient insight into his views of executive privilege to gauge: (1) how he might rule on a Mueller subpoena or any (2) other Mueller-related matter, such as (3) whether a president can pardon himself or (4) his cronies or (5) shut down a Justice Department investigation into himself, which Trump’s president’s lawyers 

claim he has the power to do.

The nightmare scenario vis-à-vis the valued national question we all hold dear that if no one is above the law, how can Trump or any sitting president be exempt and thus be above the law?

The basic question is simple to state yet the details are complex that deals with the issue of a sitting president and his campaign under investigation for collaboration with a hostile foreign power that worked hard to sabotage our democracy allow… 

“Trump that sitting president in essence to freely walk away from the investigation that he clearly has gone to enormous lengths to both scuttle and to publicly vindicate that foreign power (Putin at Helsinki) — by seeking to avoid questioning on those matters to prove his guilt or innocence and possibly with the help of the justice he just appointed?”

Trump, of course, has every right to appeal this to the court. And there are reasons that Supreme Court nominees don’t comment directly on matters they may be ruling upon. It should also be noted that even if Trump avoids a Mueller interview, this would not mean he is in the clear legally. But Trump is probably more legally vulnerable if he does the interview, and in any case, there is a strong public interest in Trump facing such questioning. 

If Kavanaugh does not pledge recusal or shed sufficient light on his views, senators are not obliged to confirm him. Indeed, you’d think this would present them with what should be a very difficult situation. 

It should become harder for any self-respecting red-state Democrat to support him. Heck, this scenario might even get a bit uncomfortable for vulnerable Republicans, since they are facing midterm elections that will likely turn heavily on voters’ desire for a check on an out-of-control president.

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The original post from here:

First, this reflection back to October 21, 2016 and then to the main post today (more on that below). Call this a status report of the USSC vacancy to fill Justice Scalia’s seat – the roadblock by the GOP-controlled senate.

“I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up. I promise you.” — Sen. John McCain (R-AZ)

That advance promise from McCain shows that Senate Republicans will stonewall anyone nominated by Hillary Clinton to the Supreme Court (assumes they keep the majority and she were president).

That statement also comes after an unprecedented seven-month blockade of President Obama's nominee, Judge Merrick Garland to fill the vacancy left by the sudden death of Justice Scalia. So, is it really hard to believe that Republicans would block Hillary's nominees forever – nope not really?

Then on April 12, 2016 more background:

WASHINGTON (Reuters) – Judge Garland. Obama’s Supreme Court nominee failed to persuade Senate Judiciary Committee Chairman Sen. Chuck Grassley (R-IA) during a private meeting to hold confirmation hearings on his nomination with Grassley saying afterwards: “The committee in the Senate won't be moving forward during this hyper-partisan election year.”

Important Historical Note: Grassley sought to block Garland's nomination to the federal appeals court on which he currently serves as chief judge some 20 years ago. Judge Garland also met with Sen. Lisa Murkowski (R-AK) one of the dwindling number of moderates. Her office stated that she too had closed the door on confirming Garland. 

Republicans who control the Senate refused to advance the nomination, thus they were obstructionists by any definition and openly ignored their constitutional obligations to proceed with hearings. Current Senate Republicans insisted that the next president following the November election should be the one to fill the vacancy, and they hoped for a Republican president who would choose a “hardline conservative” rather than “a centrist or moderate like Judge Garland” if a DEM were president.

And, here we are today: Midterms coming up and a nominee in the wings – this time a sitting Judge (Brett Kavanaugh) nominated to the bench for that same vacancy by Trump – a Republican in office and Republicans who run the Senate process. This would be Trump’s second appointment in less than two years.

Now today’s post from the NY TIMES with this subject heading:

“The Partisan Battle Brett Kavanaugh Now Regrets”

The key part from this article re: the Bill Clinton impeachment investigation and the Starr report (1996 era) and that all has come back to haunt Kavanaugh, but it also is the part that Trump and his cement-locked loyalists love and why they badly need a solid 5-4 court and that Kavanaugh would give them – remember the GOP words above: “The GOP wants a ‘hardline conservative’ and not a centrist or moderate” – and now that comes back to haunts them in 2018 (my emphasis added):

Kavanaugh still regards Starr as an “American hero.” But whether as a result of mature reflection or the expedient recognition that he should distance himself from the politically radioactive prosecution, Kavanaugh now argues more forcefully against criminal investigations of sitting presidents, to wit:

Background: It was Kavanaugh who pressed Starr to aggressively question former President Clinton on the details of his sexual relationship with Monica Lewinsky and he was he who drafted the section of the Starr report to the House that laid out 11 possible grounds for Bill Clinton’s impeachment.

Kavanaugh wrote in a 2009 law review article, about 10 years after the Starr investigations ended, this: “Like many Americans at that time, I believed that the president should be required to shoulder the same obligations that we all carry. But in retrospect that seems a mistake,” so he now says.

(My note: I wonder why caused him to change his mind in such an extreme back and forth view – probably now since he badly wants the vacant seat on the high court to serve Trump and only Trump – sounds harsh and unrealistic but man-oh-man, probably true and plenty of fodder for the DEMS in the upcoming hearing assumes there even is one. Time will tell).

That position has an obvious appeal to the White House and allies of Trump. But to Democrats who objected to Mr. Starr’s investigation and are now the ones looking to a special counsel to find criminal activity in a president’s activities, and there is more than a little irony in Kavanaugh’s shifting positions as stated above.

Now compare the Starr-Clinton investigation with the current Mueller-Trump one – make eyes roll doesn’t it? Easy to substitute names and places and such (Clinton then for Trump now):

Starr’s investigation at first focused on the Clintons’ involvement in an Arkansas real estate deal (Whitewater scandal), then it grew to consider other matters: (1) the death of Vince Foster (White House lawyer who killed himself); (2) the firings of employees of the White House travel office; and (3) various inquiries into possible obstruction of justice.

Kavanaugh, for his part back then, prepared a report concluding that Vince Foster had indeed committed suicide (and not killed by Hillary Clinton as many today still believe – ironic, isn’t it). He also investigated whether documents had been unlawfully removed from Foster’s office, and that litigated cases on attorney-client and executive privilege.

Then when he returned to the independent counsel’s fourth-floor offices at 1001 Pennsylvania Avenue, just across the street from the FBI headquarters, it was to a far different investigation.

News of the Lewinsky Oval Office affair had broken in January 1998, after Clinton testified in a sexual harassment suit that had been nurtured for years by a network of conservative lawyers. 

Paula Jones, an Arkansas state worker, also said Clinton had made lewd advances in a hotel room when he was governor. In his deposition for the case, Clinton was provided a tortured definition of sexual relations — and denied engaging in such actions with Monica Lewinsky. 

Starr then obtained permission from the then AG, Janet Reno, and a three-judge panel to expand his investigation to include the Lewinsky scandal, and suddenly Kavanaugh’s former colleagues were under siege. The investigation that had begun by examining a complex real estate deal in Arkansas had become a tawdry exposé of the president’s sex life, complete with a semen-stained blue dress, and a sex toy in the Oval Office. 

Also, ironic and at the same time, members of Starr’s team included  Rod J. Rosenstein (the current Deputy AG who appointed Mueller to investigate Trump, and Alex M. Azar II, the current Secretary of HHS) they both headed for the exits or kept their distance since the Lewinsky scandal had entered the fray. Neither one of them returned to the Starr team after that.

My 2 cents: Boy does history repeat itself and more so today by all accounts with the extensive Russian involvement, large list of indictments, guilty pleas, and growing witnesses list – all against Trump. 

So, will this Trump investigation end like the Clinton investigation – that is with his impeachment but not removal, or end like the Nixon Watergate investigation wherein Nixon resigned before he was formerly impeached and surely would have been and then just as sure removed from office? That is the million-dollar question isn’t it? 

Stay tuned. Thanks for stopping by.