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Unresolved recusal issues require a pause in the Kavanaugh hearings

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Three 'liberal' lawyers provide an argument as to just why Kavanaugh should recuse himself in cases involving Trump, IF he is seated on the Supreme Court.

Unresolved recusal issues require a pause in the Kavanaugh hearings

Laurence H. Tribe, Hon. Timothy K. Lewis, and Norman EisenTuesday
September 4, 2018


This paper explains why the Constitution as originally designed by the framers requires the Supreme Court nomination of Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit to be put on hold. It takes no view on his ultimate confirmation. But as one of the authors has elsewhere explained,[1] it offends the structure the framers created for a president who is facing mounting personal liability under our Constitution and laws to choose one of the judges in his own case.

Or more likely, multiple cases. Never before in the history of presidential nominations of Supreme Court justices have there been so many matters of the deepest personal impact to the president that may come before the Supreme Court

In addition to legal and procedural questions surrounding possible impeachment proceedings, there are a staggering array of issues with which the nominee may well be presented owing to the historically unprecedented fact that his patron the president was a named subject and, but for hesitation to indict a sitting president, could well have been a target,[2] in a criminal investigation at the very time that he handpicked the judge—reportedly after White House consideration of the judge’s views on some of these very issues. As detailed below, those issues include:

  • 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; and
  • Related civil matters involving a president’s personal interests.

FOOTNOTES:
1] Laurence H. Tribe, The Founding Fathers Wouldn’t Want Kavanaugh’s Confirmation to Continue, Washington Post, Aug. 24, 2018, available at https://www.washingtonpost.com/opin...84ece6-a70b-11e8-8fac-12e98c13528d_story.html.

2] Barry H. Berke, Noah Bookbinder, and Norman Eisen, Presidential Obstruction of Justice: The Case of Donald J. Trump, 2nd Ed., Brookings, Aug. 22, 2018, available at https://www.brookings.edu/research/...stice-the-case-of-donald-j-trump-2nd-edition/.

Link to the "paper"
 
Three 'liberal' lawyers provide an argument as to just why Kavanaugh should recuse himself in cases involving Trump, IF he is seated on the Supreme Court.



Link to the "paper"

The 'Excuse and Rationalize the Lord God Trump" crowd will never be convinced and simply don't care that Kavanaugh was nominated by an unindicted co-conspirator in federal crimes.

It's really that simple. For them, it's all about naked power, acquiring it and maintaining it, at all costs.
 
Every President has a chance of having to face the judges that they appoint for Congress to consider as SCOTUS judge. The complaint here has no merit.
 
That doesn’t seem a good justification to curtail a President’s rights and responsibilities. Now, if impeachment proceedings have been initiated then that is a different story.
 
Every President has a chance of having to face the judges that they appoint for Congress to consider as SCOTUS judge. The complaint here has no merit.

No merit? when Kavanaugh has stated that he doesn't believe a sitting President can't be charged with crimes while in office?

Kavanaugh signaled sitting president couldn't be indicted

Defenders of Supreme Court nominee Brett Kavanaugh are accusing his critics of distorting his views on whether a sitting president can be indicted, but they may be overlooking another key clue about his take on what's likely to be a contentious issue at Kavanaugh's Senate confirmation hearing.

Kavanaugh's allies note that the 2009 Minnesota Law Review article he wrote addressing such subjects advocates for a congressional statute that would exempt the president from civil suits while in office, as well as immunizing him from criminal investigation and prosecution. He does use some pretty strong language about the prospect of a criminal trial of a sitting president, saying it would "cripple the federal government"—an assessment that one could imagine leading a Supreme Court justice to step in to avert such a prospect.
(. . .)
During a 1998 Georgetown Law School conference on what would turn out to be the dim prospects of renewing the independent counsel law, moderator Mark Tuohey (who hired Kavanaugh onto the staff of independent counsel Ken Starr) put a question to the panel:

"How many of you believe, as a matter of law, that a sitting president cannot be indicted during the term of office?" Tuohey asked.

Kavanaugh's hand went up, as did more than half of the experts on the panel, including some with liberal political outlooks.

Kavanaugh's stance—or his stance at that time— is not an unusual or outlandish one. In fact, it's the official position of the Justice Department, formally articulated in a 1973 opinion under President Richard Nixon and reaffirmed in 2000 under President Bill Clinton. But it could be that there's less nuance to Kavanaugh's view than his supporters are suggesting.

and from today's hearing in the Senate
Kavanaugh won’t say if he thinks a president should testify in a criminal trial

Brett Kavanaugh on Wednesday refused to say whether he believed that a sitting president could be forced to testify in a criminal case — a key question considering special counsel Robert Mueller’s probe into Russian meddling in the 2016 election.

Trump, could face a subpoena in the case, and the top Democrat on the committee, Sen. Dianne Feinstein of California, asked the president’s Supreme Court nominee whether he thought a sitting president could “be required to respond to a subpoena.”

“That’s a hypothetical question. As a matter of the canons of judicial independence, I can’t give you an answer on that hypothetical question,” he said during the second day of his hearing before the Senate Judiciary Committee.

Now - you were saying . . .
 
No merit? when Kavanaugh has stated that he doesn't believe a sitting President can't be charged with crimes while in office?



and from today's hearing in the Senate


Now - you were saying . . .

I'm still saying the same thing. :shrug: Do you deny that every single president has a chance of facing the people that they nominate for SCOTUS?

Your own links/quotes indicate that what Kavanaugh thinks in regards to indictment is not something new or special to him. In fact it shows both sides of the political spectrum hold this view. That he also did not say if he thinks a President should testify in a criminal trial is not all that special either. Lots of SCOTUS nominees will quite often not say one way or the other on specific questions like that. So you still do not have anything.

BTW, you DO know that any defendant in a criminal trial is not required to testify right? In fact the court/prosecutor is prohibited from making them testify. The defendant can volunteer to testify, but they do not have to. As such that is already settled law and such a question towards Kavanaugh is nothing more than political grandstanding.
 
The 'Excuse and Rationalize the Lord God Trump" crowd will never be convinced and simply don't care that Kavanaugh was nominated by an unindicted co-conspirator in federal crimes.

It's really that simple. For them, it's all about naked power, acquiring it and maintaining it, at all costs.

Nixon was an unindicted co-conspirator, are any of his appointments any less valid ??
 
I'm still saying the same thing. :shrug: Do you deny that every single president has a chance of facing the people that they nominate for SCOTUS?

Your own links/quotes indicate that what Kavanaugh thinks in regards to indictment is not something new or special to him. In fact it shows both sides of the political spectrum hold this view. That he also did not say if he thinks a President should testify in a criminal trial is not all that special either. Lots of SCOTUS nominees will quite often not say one way or the other on specific questions like that. So you still do not have anything.

BTW, you DO know that any defendant in a criminal trial is not required to testify right? In fact the court/prosecutor is prohibited from making them testify. The defendant can volunteer to testify, but they do not have to. As such that is already settled law and such a question towards Kavanaugh is nothing more than political grandstanding.

BTW, you DO know that the quotes don't say anything about Trump being the accused, just that he might be a person with knowledge of a crime and therefore the question becomes -- Should the President be required to testify in regards to his knowledge or understanding - although it seems every day we have confirmation that Trump understands little that is happening in the world.

Trump and Knowledge: Maybe He Does Know How Little He Actually Knows?

A new interview reveals Trump’s ignorance to be surprisingly wide-ranging

and then there is the ever so small problem that Trump might provide evidence against himself if he were to sit for an interview with Mueller
Trump worries that Mueller interview could be a 'perjury trap' Ya know, one might begin to think that Trump is just rational enough, self-aware of his own tendencies, to know that he lies on such a regular basis that he couldn't stop himself even when speaking to the special counsel.
 
Nixon was an unindicted co-conspirator, are any of his appointments any less valid ??

Did any of Nixon's appointments ever stare down at him from the judicial bench? Were they appointed to a seat with the potential of ruling upon Nixon's criminal behaviour?
 
The 'Excuse and Rationalize the Lord God Trump" crowd will never be convinced and simply don't care that Kavanaugh was nominated by an unindicted co-conspirator in federal crimes.

It's really that simple. For them, it's all about naked power, acquiring it and maintaining it, at all costs.

Good to see you parrot a meaningless term. You're an unindicted co-conspirator to...just wait...the indictment is come, really it is guys!
 
Now - you were saying . . .

You mean a potential judge won't pre-rule on a hypothetical question ahead of any possible case and conferencing with his fellow justices?! Say it ain't so!
 
Maybe THIS will work! No? Damn. How about THIS. Nice splatter pattern...but...no. Try THIS...dang...still no. How about THIS. Crap.............

Leftists do what leftists do. Its not going to work no matter what kind of **** you want to dream up and splatter against the wall to see if SOMETHING will stick. Face it. Leftists lost all credibility when the "We oppose___________ based on his/her positions..." memos were released before the nominee was even revealed. Its all bull****...and you know it.
 
Did any of Nixon's appointments ever stare down at him from the judicial bench? Were they appointed to a seat with the potential of ruling upon Nixon's criminal behaviour?

Why would Trump be sitting in front of the Supreme Court? They don't really do criminal cases.
 
Good to see you parrot a meaningless term. You're an unindicted co-conspirator to...just wait...the indictment is come, really it is guys!

Funny to see you so twigguh'd that you can't face the reality of Cohen admitted in his plea deal that Trump ordered him to commit felonies.

Reality wants to be your friend. Don't reject your friend.
 
Did any of Nixon's appointments ever stare down at him from the judicial bench? Were they appointed to a seat with the potential of ruling upon Nixon's criminal behaviour?

Who presides over the senate impeachment trial ?? The chief justice of the SCOTUS. Who was the chief justice at that time ?? Warren E. Burger. Who appointed Warren E. Burger ?? You get one guess.
 
Who presides over the senate impeachment trial ?? The chief justice of the SCOTUS. Who was the chief justice at that time ?? Warren E. Burger. Who appointed Warren E. Burger ?? You get one guess.

Please note the year in which Burger became the Chief Justice. What year did the Watergate burglary happen?
 
Please note the year in which Burger became the Chief Justice. What year did the Watergate burglary happen?

Irrelevant, your words;

"Were they appointed to a seat with the potential of ruling upon Nixon's criminal behaviour?"

Yes, all judicial appointments have the potential of ruling on their benefactors criminal behavior.
 
Three 'liberal' lawyers provide an argument as to just why Kavanaugh should recuse himself in cases involving Trump, IF he is seated on the Supreme Court.



Link to the "paper"

Kavanaugh isn't going to recuse himself on anything to do with the President... hell, he took part in the consultations on the Bush detainee policies in 2002, lied about his involvement during his confirmation hearings, and then proceeding to hear cases challenging those very same policies as a DC Circuit Judge. If, despite all of this, he still gets confirmed to the Supreme Court, then you'd be a fool to think he'd conduct himself any differently.
 
Kavanaugh isn't going to recuse himself on anything to do with the President... hell, he took part in the consultations on the Bush detainee policies in 2002, lied about his involvement during his confirmation hearings, and then proceeding to hear cases challenging those very same policies as a DC Circuit Judge. If, despite all of this, he still gets confirmed to the Supreme Court, then you'd be a fool to think he'd conduct himself any differently.

He lied about that? Well then , he should be impeached!
 
Three 'liberal' lawyers provide an argument as to just why Kavanaugh should recuse himself in cases involving Trump, IF he is seated on the Supreme Court.



Link to the "paper"

They have a right to worry. They dragged an elite upper crust frat boy born with a gold spoon in his mouth, who led a privileged and exemplary life is dragged through the mud by a partisan mob with zero evidence of wrongdoing other than “We heard....”. Well, that does change a man. Like a liberal who gets mugged and beaten.

Remember, guys like him were at the same parties as the inquisitors. His daughters were already destined to work for one of them and intermarry into the elites to spawn more of their kind.

Kavenaugh was exposed to the horrors of what the “state” is willing and able to do to enforce its will on others.

He is a changed man. And for the better. He became one of us.
 
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