Supreme Court nominee Brett Kavanaugh refuses to answer Democratic Senators' questions concerning whether a sitting president should be required to comply with a subpoena and whether he believes a sitting president can pardon himself in a federal investigation. Both issues are likely to emerge and face judicial challenge as the special counsel's Russia investigation continues.
As questioning of Kavanaugh began on the second day of his 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. His avoidance 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.
Democrats have highlighted the possibility that President Donald Trump could be subpoenaed by the special counsel as part of the federal investigation into Russian interference in the 2016 election. As The Daily Beast reported earlier this year, Kavanaugh said in a 1998 Georgetown Law Review article that presidents must obey subpoenas.
Kavanaugh later 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.
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Democrats will almost surely use Wednesday's session to further challenge Kavanaugh’s position on executive power as it relates to Trump and the Mueller probe. 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.”
Kavanaugh dodges debate over subpoenaing a president (Politico)
Kavanaugh Declines to Say Whether Presidents Must Comply With a Subpoena (The Daily Beast)