As the scheduled start of Brett Kavanaugh’s confirmation hearing approaches, Republican leaders have rejected calls for delay pending resolution of the Mueller investigation, responding that Trump is president and can exercise all of the powers granted to him by Article II of the Constitution. Fair enough, but then there’s Merrick Garland. Mitch McConnell never disputed President Obama’s Article II authority to nominate Merrick Garland, but he invoked a special circumstance – the election in seven months – to justify his refusal to process the nomination. McConnell’s stated reason was nonsense. His true reason was to keep the seat open for a Republican nominee at any cost, even if that meant refusing to consider a President Hillary Clinton nominee. He had no constitutional grounding for his inaction, but he had raw power and he established a new norm: that special circumstances justify the Senate’s thwarting of an exercise of Article II power, namely appointment of a Supreme Court justice. There exists, therefore, in Mitch McConnell’s Senate, no constitutional impediment to delaying – temporarily or permanently – the confirmation of a justice in the face of special circumstances.
So how do Trump’s special circumstances compare to Obama’s? The case for holding off on Trump’s nominee is far stronger. Trump has now been named by Michael Cohen during his federal guilty plea as a co-conspirator. Cohen stated that Trump directed him to pay off two women who claimed to have had sex with Trump. He further stated that the payments were intended to affect the presidential election by keeping their stories from public view. In short, Cohen stated during his plea that Trump participated in federal crimes to help him win the presidential election.
In addition, all U.S. intelligence agencies agree that Russia attacked our election to help Trump. And the public evidence of a Trump campaign conspiracy to work with the Russians grows daily. Trump’s explanation – and that of his lawyers – has morphed from having no contacts at all with Russians to denying that there was “collusion” to denying that “collusion” is a crime. Yet information continues to emerge, starting with the June 2016 meeting at Trump Tower involving Trump Jr., Paul Manafort, Jared Kushner, and representatives of the Russian government. Emails reveal that the meeting was designed to hand over dirt on Hillary Clinton as part of the Russian government’s effort to help elect Trump. Reports suggest that Trump Jr. spoke by phone to a blocked number before and after the meeting. Both Trumps lied about the meeting. Other contacts with Russians range from George Papadopolous’s initial receipt of information about hacked emails to Roger Stone’s communications with Guccifer 2.0 about hacked emails. Further indictments appear imminent. In addition, the Cohen plea and reports of new cooperators, including Trump Organization CFO Alan Weisselberg and National Enquirer publisher David Pecker, may reveal further unlawful efforts to influence the election.
In response, Trump has acted like a guilty man. He, his TV lawyer, Rudy Giuliani, and his House supporters have attacked the investigators relentlessly, alleging phony conflicts of interest and abuses of power. Trump has executed a slow-moving purge of officials involved in the investigation. He fired Jim Comey and provoked the firing of others, including Andrew McCabe and Peter Strzok. He humiliated Jeff Sessions and ordered the firing of Robert Mueller, only to be thwarted by Don McGahn, the White House Counsel, whom he now appears to have shown the door.
Meanwhile, Trump has been unwilling to submit voluntarily to questioning by the special counsel. His reluctance is common among subjects or targets of grand jury investigations. And it is particularly appropriate for Trump, whose inevitable lies to investigators would become crimes. It is, however, particularly inappropriate for a President of the United States, who owes a duty of transparency and truthfulness to the public.
Throughout the investigation, Trump has shown that he does not understand or has no regard for the justice system. He has attempted to bully the FBI and Department of Justice prosecutors, ignoring the traditional separation of the White House from matters of criminal investigation. He has repeatedly expressed his contempt for judges. Whether dismissing a federal judge as Mexican and therefore incapable of deciding fairly the fraud action against Trump University, or referring to another federal judge who found his early travel ban unlawful as a “so-called judge,” Trump has broadcast disregard for the judiciary as an independent branch of government.
The process by which Trump selected Kavanaugh exacerbates the inappropriateness of proceeding. He contracted out the selection process to the Federalist Society, though not before establishing hostility to Roe v. Wade as a litmus test. We don’t know what criteria were used in the selection or what assurances may have been made along the way. Trump’s practice of extracting loyalty pledges from subordinates increases the need for transparency.
Under these circumstances, the Republican leadership’s push to confirm Kavanaugh before senators have seen 94 percent of the documents from his White House years raises serious suspicions about what those documents contain. Senators are being asked to confirm Kavanaugh for a lifetime appointment even though he was nominated by a president who selected him through a flawed process, is under investigation for crimes committed to win his election, and has obstructed the investigation while exhibiting contempt for the justice system. Special circumstances require the Senate to let the nomination sit until senators have all of Kavanaugh’s documents and the Mueller investigation clears Trump.