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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.
Link to the "paper"
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"