Three legal experts issued a paper Tuesday explaining exactly why the Constitution requires the ongoing Brett Kavanaugh hearings should be put on hold.
Harvard Law Professor Laurence Tribe, former federal circuit court judge Timothy K. Lewis, and Obama administration ethics attorney Norman Eisen have “been before the Senate for confirmation, worked on Supreme Court or other confirmations, or both.”
“[W]e believe the Constitution instructs that a judge nominated to the Court in the situation that currently confronts Judge Kavanaugh, recuse himself from the full swath of cases presenting the issues of personal presidential liability . . . and that precedent demands he do so now, as other nominees have done under far less compelling circumstances. The confirmation hearings should therefore be halted so these issues can be explored and proper recusals agreed to after due deliberation, including full production of the judge’s documents so his views can be thoroughly probed.”
Tribe, Lewis, and Eisen argue that the precedent of three cases in the lower courts requires judges to recuse themselves 1) if there is “a serious risk of actual bias” or 2) if there is an “independent and compelling government-wide interest in protecting against the appearance of bias”.
In these cases, if even the appearance of bias exists, the priority is given to “protecting the public faith in the judicial system as a cornerstone of the legal process as a whole and as a guardian of the rule of law.” These cases establish a legal precedent that “due process requires recusal” in response to the appearance of bias.
A Supreme Court Justice Kavanaugh could plausibly be expected to decide the following in regards to current criminal investigations involving Trump:
“-Whether a president can use the pardon power to shield himself from criminal liability.
-Whether a president can be charged with obstructing justice.
-Whether a president can defy a subpoena for testimony.
-Whether a president can be criminally indicted.
-Whether a president can unilaterally fire a special counsel without cause.
-Related civil matters involving a president’s personal interests.”
They also note that the White House has weighed Kavanaugh’s thoughts on these very questions during the process of choosing him. Democratic members of the Senate Judiciary Committee have repeatedly pressed about the limits of executive privilege during the Kavanaugh hearings.
During selection, Kavanaugh’s resume included outspoken beliefs that presidential power should be less restricted, and that presidents should be free of “distractions” of lawsuits or investigations while in office.
“Having seen first-hand how complex and difficult that job is, I believe it is vital that the President be able to focus on his never-ending tasks with as few distractions as possible,” Kavanaugh wrote in a 2009 Minnesota Law Review article. He continued on to conclude that “Congress (should) enact a statute providing that any personal civil suits against presidents, like certain members of the military, be deferred while the President is in office.”
In the past two days of the Kavanaugh hearings, there has not yet been a pledge on behalf of the nominee to recuse himself from Trump’s case should it reach his court. Instead, he merely promises to “pledge to be independent-minded in the event he has to make such a consideration, as all justices do,” according to a White House official. Additionally, legal experts have already told Grit Post that such a recusal would not be required.
Tribe, Lewis, and Eisen say that the rush to begin Judge Kavanaugh’s confirmation hearings, which began on Tuesday, should be postponed, stating that in all their experience they “have never seen anything like this hurried and defective process for such an important nomination.”
Democrats have loudly advocated for postponing the Kavanaugh hearings, complaining that only about 10 percent of Kavanaugh’s records have been released, including a 35-month gap of time that Kavanaugh spent in the White House as former President George W. Bush’s staff secretary.
Nathan Wellman is a Grit Post contributing editor in Los Angeles. Follow him on Twitter: @LIGHTNINGWOW. You can also email him at info AT gritpost DOT com.