Two leading legal experts say Brett Kavanaugh — whom President Trump appointed to the Supreme Court on Monday — wouldn’t be required to recuse himself from any potential Supreme Court decisions involving Special Counsel Robert Mueller’s investigation.
Kavanaugh is known, among other things, for his opinion that sitting presidents shouldn’t be subjected to civil lawsuits or criminal investigations while in office, based on a 2009 article for the Minnesota Law Review. According to Kavanaugh, the duties of the president in an economic or national security crisis could be impeded by an investigation, which could potentially imperil the country. Rather than face an investigation, Kavanaugh argues Congress would hold a president accountable through the impeachment clause of the U.S. Constitution should a president commit any illegal acts while in office.
This opinion is likely to be heavily scrutinized by Senate Democrats during the confirmation process, especially when considering that any constitutional issues that stem from the Mueller investigation could ultimately end up being decided by the U.S. Supreme Court. Senator Cory Booker (D-New Jersey) recently argued that the senate shouldn’t hold hearings on any Supreme Court justice until after the Mueller probe has wrapped up.
“We have a president who, in the past, has seemed to be asking people for loyalty tests, that has seemed to have had litmus tests in regard to this investigation,” Sen. Booker said during a June 28 committee hearing. “If we are not going to thoroughly discuss what it means to have a president with this ongoing investigation happening, who is now going to be able to interview Supreme Court justices, and potentially continue with his tradition of doing litmus tests, loyalty tests for that person, we could be participating in a process that could undermine that criminal investigation.”
However, despite any potential loyalty test conducted by President Trump in the leadup to the announcement of Kavanaugh’s appointment regarding the Mueller probe, there would be no requirement for the new justice to recuse himself if Constitutional issues surrounding the investigation were to be decided by the Supreme Court, according to prominent legal experts. This means that Kavanaugh could be the deciding vote in a case that could hypothetically determine whether or not any potential criminal charges against President Trump would be allowed to move forward.
“The decision to recuse, when it’s not required, is up to the Justice himself, and the standard is whether he thinks that his impartiality could reasonably be questioned,” Mark Tushnet, the William Nelson Cromwell Professor of Law at Harvard University, told Grit Post in an email. “It’s hard to see how the mere fact of having been nominated would make it reasonable to think that the Justice couldn’t be impartial.”
For the most recent example of a Supreme Court weighing in on a criminal investigation involving a sitting president, one would have to go back to the Watergate scandal during the Nixon administration, in which the Supreme Court unanimously decided to compel Nixon to hand over the Watergate tapes to investigators.
Erwin Chemerinsky, Dean of the University of California-Berkeley School of Law, told Grit Post that with the exception of William Rehnquist, all of the Supreme Court justices nominated by Nixon participated in the United States v. Nixon case.
“Rehnquist recused himself, but because he has been a top level official in the Nixon Justice Department,” Chemerinsky said in an email. “The fact that a justice has expressed a view does not require recusal. We know how Clarence Thomas and Ruth Bader Ginsburg think about abortion, but that does not require their recusal.”
If confirmed, Kavanaugh would take the place of outgoing Justice Anthony Kennedy, who announced his retirement in June. Senate Majority Leader Mitch McConnell (R-Kentucky) said he hopes to confirm Kavanaugh by this fall.
Tom Cahill is a contributor for Grit Post who covers political and economic news. He lives in Bend, Oregon. Send him an email at tom DOT v DOT cahill AT gmail DOT com.