National

Democrats worry about how a new Supreme Court justice would affect Russia investigation

WASHINGTON — If confirmed as the next Supreme Court justice, Brett Kavanaugh could end up voting on key issues involving President Donald Trump and the Russia investigation — a possibility that alarms some Democratic senators.

The court could be asked to rule on whether Special Counsel Robert Mueller has the right to subpoena the president to testify in the ongoing investigation of Russian interference in the 2016 presidential election. Mueller also is investigating possible collusion between the Trump campaign and the Kremlin and possible obstruction of justice by the president.

Justices also could be asked to rule on whether a sitting president can be indicted on criminal charges and whether he can pardon himself.

Sen. Cory Booker, D-N.J., who serves on the Senate Judiciary Committee, argues that Trump has a conflict of interest in appointing a new justice as long as the Russia investigation continues. He said the committee should not hold a confirmation hearing until the Russia probe is done.

"President Trump is currently a subject of an ongoing criminal investigation, and any nomination of a Supreme Court justice while that investigation continues is unacceptable because of the clear conflict of interest inherent in the president installing someone who could be the deciding vote on a number of potential issues from that investigation," Booker said Monday night.

The senator said he is especially concerned about Kavanaugh because the judge's "long-established view that a president should not be subject to civil litigation or criminal investigation while in office means that President Trump has just nominated a justice who has already reached conclusions on these serious questions."

"That should raise enormous red flags," Booker said.

Rep. Adam Schiff of California, the senior Democrat on the House Intelligence Committee and a former prosecutor, said Trump's nomination of Kavanaugh was guided by the president's "self-interest."

"Ever mindful of his self-interest, Trump has picked Brett Kavanaugh, who once wrote that he didn’t believe a sitting President should be subject to criminal investigation or prosecution," Schiff wrote on Twitter.

And Sen. Jeff Merkley, D-Ore., said Trump's choice of Kavanaugh shows that the president is "terrified of Robert Mueller."

"It’s no wonder he chose Kavanaugh," Merkley tweeted Wednesday night. "He’s someone who argued that Sitting Presidents should be immune from prosecution and not be indicted and (the president) has the sole power to appoint and fire special prosecutors at will."

Senate Judiciary Chairman Chuck Grassley, R-Iowa, called the Democrats' argument "another losing talking point."

"This argument is again inconsistent with historical precedent," Grassley said on the Senate floor Monday. "President Clinton appointed Justice (Stephen) Breyer while the independent counsel was investigating the president over Whitewater. At the time, his documents were under a grand jury subpoena."

"What other constitutional powers do the proponents of this argument believe the president should surrender simply because of an investigation?" Grassley added. "This is obstruction masquerading as silliness."

The Whitewater investigation, headed by independent counsel Ken Starr, led to Clinton's impeachment by the House in 1998 for obstructing justice and lying under oath to a federal grand jury about his affair with former White House intern Monica Lewinsky. The Senate tried and acquitted Clinton in early 1999.

In contrast, "it’s been publicly reported that President Trump is not the target of the Mueller investigation, so these arguments by the left just don’t hold water," said George Hartmann, Grassley's press secretary.

Prosecutors have reportedly told the White House that Trump is a "subject" of the Russia investigation, but not a target.

The Clinton scandal does underscore how the Supreme Court can play a crucial role in settling legal disputes involving the president.

The court ruled in 1997 that Clinton had to comply with a subpoena in a civil lawsuit brought against him by Paula Jones, who alleged that Clinton made unwanted sexual advances toward her while he was governor of Arkansas.

In 1974, the court ruled that President Richard Nixon had to turn over audio tapes and other evidence to a special counsel in the Watergate investigation.

Trump has said that he believes he has the power to pardon himself —  a constitutional question that Kavanaugh may have to help decide, depending on the outcome of Mueller's investigation.

Both Democrats and Republicans on the Judiciary Committee will have a chance to thoroughly question Kavanaugh, Grassley said.

The committee will hold a confirmation hearing on Kavanaugh in the weeks ahead and vote on whether to recommend the appeals court judge to the full Senate for approval this fall.

"Under my watch, the Senate Judiciary Committee will never be a rubber stamp," Grassley promised his colleagues Monday. "Several recent nominees to lower courts learned that the hard way."