The narrow confirmation of now-Justice Brett Kavanaugh over the weekend marked a major political victory for President Trump – and the beginning of a new battle for Democrats, who are now shifting their message to threaten possible impeachment against the newest high court justice and question the legitimacy of the Supreme Court itself.
FBI Kavanaugh investigation: Trumps scary precedent
After a grueling confirmation fight that included graphic sexual misconduct allegations which the nominee denied, Kavanaugh was confirmed Saturday on 50-48 vote. His ceremonial swearing-in will be held Monday evening.
Commentary: Meet Lindsey Graham 2.0
But as he joins the court, replacing retired Justice Anthony Kennedy, prominent Democrats signal the fight over his seat and the court itself will extend well beyond next month's midterms.
"Now, they want to impeach him. … It's an insult to the American public," Trump said Monday, still fuming over the confirmation process and predicting Republican candidates would only benefit from the controversy in the midterms.
Democrats, though, maintain the fight is energizing their core. "We will not stop marching, we will not stop fighting," DNC Chairman Tom Perez said in a statement.
Over the weekend, former Attorney General Eric Holder said the court’s legitimacy should be brought into question with the addition of Kavanaugh.
“With the confirmation of Kavanaugh and the process which led to it, (and the treatment of Merrick Garland), the legitimacy of the Supreme Court can justifiably be questioned. The Court must now prove—through its work—that it is worthy of the nation’s trust,” Holder tweeted, referring to former President Barack Obama's Supreme Court nominee whose confirmation process was blocked by Republicans in 2016.
Sen. Dianne Feinstein, D-Calif., top Democrat on the judiciary committee, also tweeted that confirming Kavanaugh "in the face of credible allegations of sexual assault that were not thoroughly investigated, and his belligerent, partisan performance in last Thursday’s hearing undermines the legitimacy of the Supreme Court."
Some in the media advanced another argument to question the court's legitimacy under its current makeup. Newsweek wrote that Kavanaugh is now the “fourth out of nine justices nominated by a president who did not initially win the popular vote”—referring to President Trump and former Republican President George W. Bush.
Whether the court's legitimacy really comes into question will be seen when major decisions start coming down. More immediately, though, some Democrats are hinting at impeachment efforts should they win the House in November.
Sen. Cory Booker, D-N.J., said the option of impeaching Kavanaugh should not be ruled out and said he would support further investigation into the newest justice.
“If there is conclusory evidence that shows unequivocally that he lied to a Senate committee, that is a crime and he should be held accountable for those criminal acts,” Booker told Yahoo News on Sunday in Iowa, suggesting a probe into whether Kavanaugh perjured himself before the Senate.
“I think that after the dust settles on the night of [November] 6, I think that’s where we start to evaluate … what is the best thing for us to be focusing on in terms of what’s best for America and the American people,” Booker said.
Rep. Jerrold Nadler, D-N.Y., said over the weekend that if the Democrats take back the majority in the House, they will launch a separate investigation into Kavanaugh’s potential perjury and alleged sexual assault.
“It is not something we are eager to do,” Nadler told The New York Times Friday. “But the Senate having failed to do its proper constitutionally mandated job of advise and consent, we are going to have to do something to provide a check and balance, to protect the rule of law and to protect the legitimacy of one of our most important institutions.”
He added: “We have to assure the American people either that it was a fair process and that the new justice did not commit perjury, did not do these terrible things, or reveal that we just don’t know because the investigation was a whitewash.”
Thats fitting, since at this moment, the average conservative might even be led to believe that Lindsey Graham can leap tall buildings in a single bound.
Some Democrats even called for considering the impeachment of Justice Clarence Thomas, over sexual harassment allegations he fought off during his 1991 confirmation.
Last month, after an hours-long hearing where both Kavanaugh and one of his accusers, Dr. Christine Blasey Ford, testified, there was a bipartisan call for further investigation into the allegations.
Ford accused Kavanaugh of pinning her down to a bed and trying to remove her clothing at a high school party 36 years ago. She believed it to be an “attempted rape,” according to her legal team. Kavanaugh also faced allegations from Deborah Ramirez, who claimed the Supreme Court nominee exposed himself to her at a dorm party during their freshman year at Yale University; and Julie Swenitck, who claimed Kavanaugh drugged the “punch” at parties and was involved in or present at “gang” and “train” rapes while in high school. Kavanaugh denied all the claims publicly.
The White House ordered a week-long FBI supplemental background investigation into the allegations. The report did not find evidence to corroborate the allegations, though Democrats complained that the probe was limited in scope.
Another point of contention going forward may be Kavanaugh's involvement in a variety of court cases. CNN legal analyst Areva Martin said last week that Kavanaugh should recuse himself from cases involving civil rights, such as gerrymandering.
“Those cases are often brought by political parties, they’re brought by Democrats, so if Judge Kavanaugh believes that this allegation brought by Dr. Ford was somehow orchestrated or engineered by Democratic operatives, how can he be unbiased in a gerrymandering case that’s brought by a Democratic party?” she said on CNN. “His name on the court will always have an asterisk.”
“He was confirmed, he will serve on the Supreme Court. He will be judged like the other justices,” Dershowitz said on Fox News' “America’s Newsroom” Monday.
“Kavanaugh was not my choice—I’m a liberal Democrat—I would have appointed Merrick Garland again, but the Democrats have to be wise and sensible and just and moral and not violate due process and civil liberties,” Dershowitz said.
Share Share Trumps successful neutering of the FBIs Kavanaugh investigation has scary implications tweet share Reddit Pocket Flipboard Email Supreme Court nominee Brett Kavanaugh leaves his home in Chevy Chase, Maryland, after being confirmed by the Senate on October 6, 2018 . Win McNamee/Getty Images Donald Trumps instinct was right. A loyal FBI is worth a purge or two.
FBI Director Christopher Wray, installed after Trump fired James Comey for refusing to limit the scope of the Russia investigation, said and did nothing as the White House ordered limits on a reopened background check of Kavanaugh.
The bureau agreed not to interview Kavanaugh or Christine Blasey Ford, who accused him of sexually assaulting her, or to respond to many people stepping forward with new information. They agreed not to follow up on possible lies Kavanaugh is accused of telling in his Senate testimony. And they made other concessions unknown to the public or even Democrats on the Senate Judiciary Committee.
According to the New York Timess reporting, White House lawyer Don McGahn made sure relevant questions went deliberately unexplored because, he believed, a wide-ranging inquiry like some Democrats were demanding — and Mr. Trump was suggesting — would be potentially disastrous for Judge Kavanaughs chances of confirmation to the Supreme Court.
At the end of the one-week deadline, the FBI handed a document to Congress that didnt seek to clarify seriously the veracity of the accusations against Kavanaugh, but its existence gave Republicans the cover they wanted to back him anyway.
The upshot is that the independent FBI established after Watergate and whose existence everyone reaffirmed during Wrays confirmation process is now dead. Other senior FBI leaders have already been purged, and Trumps shameful treatment of Peter Strzok, Bruce Ohr, and others has made it clear that he has no compunction about ordering further purges.
Kavanaughs appointment to the Supreme Court dealt a serious blow to the integrity of the Court — and the implications of how he got there go well beyond to the entire legal order.
The White House got away with stamping on an FBI investigation. Think of it as a dry run for a coming shutdown of special counsel Robert Muellers investigation.
Its easy to forget, but the existence of a Russia inquiry isnt a natural fact of American life. Barack Obama was president when it began, and then in the critical winter of 2016 to 2017, many Republicans, particularly foreign policy hawks, were uneasy with Trump and saw an investigation as a useful way to force him into policy orthodoxy. When Comey was fired, enough of that unease was still in place that many Republicans pushed for a special counsel to carry things forward.
Trump, however, has clearly signaled his desire to clean house and fire Mueller after the midterms. And the Kavanaugh fight has shown us (and, more importantly, shown Trump) that congressional Republicans are coming around to the idea that independence of federal law enforcement is overrated. His White House, meanwhile, though hardly a well-oiled machine, has demonstrated its ability to work the levers of power and get things done.
If the GOP is able to hold its majority or (as looks more likely, given current polling) pick up a seat or two, a firm Trumpist majority will be in place ready to govern with the principle that whats good for Trump is good for the Republican Party, and subverting the rule of law is definitely good for Trump.
Two signs of how far weve already fallen from the rule of law have played out over the past couple of months.
Trumps personal attorney Michael Cohen pleaded guilty to a range of crimes and specifically implicated Trump in some of them. And an exhaustive New York Times investigation produced strong documentary evidence that Trump committed tax fraud back in the 1990s.
The United States attorneys in New York who prosecuted Cohen do not appear to be following up with a prosecution of the president. (Nor is it at all clear that they could do this even if they wanted to.) And its simply taken for granted that the IRS, under the control of a Trump-appointed commissioner, will ignore the federal tax fraud issue — so far, they havent so much as commented.
There is no prospect of a congressional investigation into either of these matters, nor any clamor from the Republican majority for the appointment of a special counsel. Weve simply reached an equilibrium in which its understood that the president no longer needs to follow the law, and so the news cycle will move on rapidly from evidence of his lawbreaking.
If Democrats do well in the midterms, they may be able to exert Congresss constitutional prerogatives to partially halt that trend. But if they do poorly, the trend will only accelerate.
Back in the less partisan days of 1969, then-President Richard Nixon ordered the FBI to wiretap five journalists whose reporting the administration didnt like. A couple of years later, he had the IRS audit the tax returns of the editor of Newsday in retaliation for a series of investigative reports into one of Nixons cronies.
The Watergate investigation revealed these and related abuses of power and led to the creation of the modern norms of treating many sensitive executive agencies as in effect independent of the White House.
But those norms are just norms — the president can fire executive branch appointees and replace them with ones he likes better as long as the Senate is willing to go along. Meaning that in the face of a determined White House, the leaders of these agencies will either surrender their independence or surrender their jobs.
In the interregnum between Nixon and Trump, that didnt happen due to a shared understanding that the Senate and the public wouldnt stand for it. In the Kavanaugh case, however, it turned out that the Senate actually will stand for it.
And while Trump lost the popular vote, the Senate GOP caucus represents a minority of Americans, and even thought Kavanaugh is unpopular, Republicans brushed those concerns aside.
If theyre able to successfully wield federal investigations as a weapon in 2019-20 the way Nixon did, they may be able to entrench themselves in power despite unpopularity. At a minimum, theyll be able to shield themselves and their allies from legal scrutiny.
A remarkable fact about the rule of law in the United States of America is that even though US attorneys are appointed by the president, their offices sometimes undertake investigations that are bad for the president politically. Early in Barack Obamas term of office, federal investigators in Illinois charged Gov. Rod Blagojevich in a manner that was not only inconvenient to national Democrats but arguably cost them a blue Senate seat from 2011 to 2016. Later in Obamas term, a federal case against Sen. Robert Menendez (D-NJ) wound up nearly costing Democrats a different blue Senate seat.
And there was nothing particularly unusual about this. One doesnt even exactly need to believe that Obama or his predecessors were too pure of heart to interfere with federal investigations for partisan reasons — they were simply cautious.
To be seen as meddling in a federal investigation in that way would have been a huge scandal had it been uncovered, and traditionally, presidents have tried to avoid generating huge scandals.
But Trump, by shutting down an FBI investigation into Kavanaugh for transparently partisan purposes and earlier firing Comey and Deputy Director Andrew McCabe on thin pretexts sends a powerful message: He doesnt care.
Everyone working in every federal agency in America knows that fear of being caught isnt going to stop Trump from engaging in political meddling. If you look into malfeasance committed by a business he owns — or that his son-in-law owns, or one of his friends or donors or other associates — and he gets mad about it, he might stomp on you and not worry too much about the possibility of getting caught. And the mere fact that this is so obvious means in most cases you dont really need to stomp on anyone.
The White House counsel has no legal authority I can see to give orders to the FBI, yet theres no indication that McGahn had to threaten or intimidate anyone to get his way. He simply made it clear that the administrations political strategy was do a cursory investigation because we dont care whether Kavanaugh is guilty rather than do a thorough investigation because were confident it will exonerate him.
This same attitude toward the rule of law can and likely will filter down into lower levels of the federal government. And it will operate not just on high-profile cases, but in subtle ways — to ensure that enforcement is used selectively to punish Trumps enemies, or to ignore enforcement selectively to reward his friends.
Normal leaders tread cautiously in this domain for fear of exposure, scandal, and political backlash. But Trump tends to operate on the principle that audacity will be rewarded and new scandals will always come along to crowd out old ones. Its a scary approach to political leadership, and so far, its working pretty well.
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