Democrats use Mueller probe to attack Kavanaugh

Democrats use Mueller probe to attack Kavanaugh
© Anna Moneymaker

Democrats are seizing on special counsel Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE’s Russia investigation as they plot a strategy to block Brett Kavanaugh’s nomination to the Supreme Court.

Senate Democrats argue that President TrumpDonald John TrumpTrump rallies in Nevada amid Supreme Court flurry: 'We're gonna get Brett' Trump: 'Good news' that Obama is campaigning again Trump boosts Heller, hammers 'Wacky Jacky' opponent in Nevada MORE’s pick to replace Justice Anthony Kennedy should be disqualified because, if confirmed, he may have to decide whether the president can be criminally indicted, or if Trump has the power to pardon himself in Mueller’s probe into potential collusion between Moscow and the Trump campaign in 2016.


While Democrats are focusing primarily on Kavanaugh’s position on health care and abortion rights, the Mueller argument has quickly become the second plank in their battle to prevent his confirmation.

“There are so many elements of this case that could potentially come before the Supreme Court — whether a president can be prosecuted at all, whether a president can be criminally indicted, whether a president can pardon himself or other key members, whether the president can fire or order the firing of a special prosecutor,” Sen. Cory BookerCory Anthony BookerPoll: Most Massachusetts voters don't think Warren should run for president in 2020 Trump, GOP regain edge in Kavanaugh battle Booker: It would be ‘irresponsible’ not to consider running for president MORE (D-N.J.) told The Hill on Tuesday.

He added that Trump, “knowing we have a split court,” has just picked the one person who has said: “ ‘I will give you immunity against even the investigation. Any matter that comes before me — you know what, I’m going to decide to protect Donald Trump.’ ”

Booker, a potential 2020 White House contender, and other Democrats have pointed to Kavanaugh’s writings in a 2009 law review article in which he said the president should not be subject to civil litigation or a criminal investigation while in office.

“I believe it vital that the President be able to focus on his never-ending tasks with as few distractions as possible,” Kavanaugh wrote.

Senate Minority Leader Charles SchumerCharles (Chuck) Ellis SchumerTrump, GOP regain edge in Kavanaugh battle READ: President Trump’s exclusive interview with Hill.TV The Hill's 12:30 Report — Trump slams Sessions in exclusive Hill.TV interview | Kavanaugh accuser wants FBI investigation MORE (D-N.Y.) said Trump nominated Kavanaugh to the Supreme Court because he’s “worried” about the Russia probe, and he questioned whether Kavanaugh thinks Trump is above the law.

“He chose the candidate who he thought would best protect them from the Mueller investigation,” Schumer told reporters. “Mr. Kavanaugh was probably the most extreme on that issue.”

Many Democrats are urging Republicans to vote against Kavanaugh, who’s served on the U.S. Court of Appeals for the District of Columbia Circuit since 2006, if he refuses to say he’ll recuse himself from matters relating to Mueller’s investigation.

“My colleagues should be a ‘no’ on this nominee unless Judge Kavanaugh specifically commits that he will recuse himself on any issues that involve President Trump’s personal financial dealings or the special counsel,” said Sen. Richard Blumenthal (D-Conn.), a member of the Senate Judiciary Committee.

But focusing on the Mueller probe could fail to win over the GOP support Democrats need to block Kavanaugh’s nomination. Republicans nixed the 60-vote filibuster on Supreme Court nominations last year, meaning Kavanaugh could be confirmed without a single vote from the 49-member Democratic caucus.

For that reason, Democrats have focused the bulk of their efforts on Kavanaugh’s potential impact on health care, hoping to win over GOP Sens. John McCainJohn Sidney McCainArizona race becomes Senate GOP’s ‘firewall’ Trump administration weakens methane pollution standards for drilling on public lands Another recession could hit US in 2019, says credit union association chief MORE (Ariz.), Susan CollinsSusan Margaret CollinsPoll: More voters oppose Kavanaugh’s nomination than support it Feinstein's office says it has received threats over Kavanaugh Ford taps Obama, Clinton alum to navigate Senate hearing MORE (Maine) and Lisa MurkowskiLisa Ann MurkowskiAlaska gov, lieutenant gov come out against Kavanaugh The Memo: Tide turns on Kavanaugh Budowsky: Kavanaugh and the rights of women MORE (Alaska) — who all voted to block an ObamaCare repeal effort last year.

Sen. Dick DurbinRichard (Dick) Joseph DurbinGrassley to administration: You must consult Congress on refugee cap Overnight Health Care: Senators target surprise medical bills | Group looks to allow Medicaid funds for substance abuse programs | FDA launches anti-vaping campaign for teens Bipartisan group wants to lift Medicaid restriction on substance abuse treatment MORE (Ill.), the No. 2 Senate Democrat, acknowledged that focusing on health care or abortion would resonate with midterm voters more than trying to block Kavanaugh because of Mueller’s investigation.

“More Americans are concerned about health care than a political or criminal investigation,” Durbin said.

“We think health care and choice are the top two issues, but they’re not the only issues,” he added, characterizing Kavanaugh’s potential impact on the Mueller probe as “timely,” “relevant” and “historic.”

Sen. Dianne FeinsteinDianne Emiel FeinsteinFeinstein's office says it has received threats over Kavanaugh Dem senator praises Ford opening the door to testifying The chaos in the Kavanaugh nomination illustrates the high stakes of the Supreme Court MORE (D-Calif.), ranking member of the Senate Judiciary Committee, said she could not comment now on whether Kavanaugh should recuse himself from any matters involving the Russia investigation that come before the Supreme Court.

But she said Kavanaugh’s confirmation hearings will likely be held after Labor Day.

“Maybe it can be done sooner, but there are a lot of records we need to look at,” she said, noting the nomination is “a bit more complicated this time.”

GOP senators considered potential swing votes on Kavanaugh brushed off questions about the Mueller investigation.

Collins told reporters that she wasn’t familiar enough with Kavanaugh’s writing to know if she would “spend a lot of time on that issue.”

Sen. Jeff FlakeJeffrey (Jeff) Lane FlakePoll: More voters oppose Kavanaugh’s nomination than support it Ford opens door to testifying next week Police arrest nearly two dozen Kavanaugh protesters MORE (R-Ariz.) dismissed the connection between Kavanaugh and Mueller’s probe.

“If somebody is trying to draw a line between him being easy on Trump, that’s not there,” Flake said.

While focusing on the Mueller probe is unlikely to prevent Kavanaugh’s confirmation, it is likely to rile up the Democratic base leading up to the November midterm elections. But that strategy won’t necessarily help all Democrats.

Vulnerable senators seeking reelection this fall in states that Trump won in 2016 broke with their progressive colleagues, saying little to nothing when asked if Kavanaugh should be disqualified because of the Mueller probe.

Sen. Heidi HeitkampMary (Heidi) Kathryn HeitkampThe Memo: Tide turns on Kavanaugh McCaskill to oppose Kavanaugh nomination Election Countdown: Trump confident about midterms in Hill.TV interview | Kavanaugh controversy tests candidates | Sanders, Warren ponder if both can run | Super PACs spending big | Two states open general election voting Friday | Latest Senate polls MORE (D-N.D.) said “no,” but declined to elaborate. A spokesperson later pointed to the senator’s statement saying she would thoroughly review and vet Kavanaugh’s record.

Sen. Joe ManchinJoseph (Joe) ManchinThe Memo: Tide turns on Kavanaugh McCaskill to oppose Kavanaugh nomination The Memo: Kavanaugh firestorm consumes political world MORE (D-W.Va.) declined to respond when the same question was posed to him on his way to the Senate lunches on Tuesday.

Sen. Bill NelsonClarence (Bill) William NelsonThe Hill's Morning Report — Sponsored by United Against Nuclear Iran — The Hill interviews President Trump The Hill's 12:30 Report — Kavanaugh controversy consumes Washington | Kavanaugh slated to testify Monday | Allegations shake up midterms Florida governor booed out of restaurant over red tide algae issues MORE (D-Fla.), meanwhile, repeatedly told reporters that he was losing his voice and that they should instead read his statement, which makes no mention of Mueller.

Sen. Jon TesterJonathan (Jon) TesterTrump Jr. campaign event looks for new venue after Montana restaurant declines to host CBS Poll: Missouri, Montana Senate races in dead heats Dems play waiting game with Collins and Murkowski MORE (D-Mont.), who’s also facing reelection in November, said he has “not formed any opinions on the Mueller investigation in relation to the Supreme Court as of yet.”

“That may come about as we do our investigation,” he added.

Senate Democrats are defending 10 seats in November in states Trump won, and they are facing pressure from both sides who view them as crucial to Kavanaugh’s prospects for confirmation.

Republicans blasted Democrats for using the Mueller probe to attack Kavanaugh, noting there is no guarantee he’ll ever hear a case related to the investigation. GOP senators, while broadly supportive of Mueller, have increasingly called on him to start wrapping up his investigation.

Sen. John CornynJohn CornynKey GOP senators appear cool to Kavanaugh accuser's demand Trump, GOP regain edge in Kavanaugh battle GOP mulls having outside counsel question Kavanaugh, Ford MORE (Texas), the No. 2 GOP senator, dismissed the Democratic demands for recusal as “ridiculous.”

Sen. John KennedyJohn Neely KennedyMORE (R-La.) added that it is an “absurd proposition” to say Kavanaugh should be disqualified because of his writings on presidential power.

“Based on the premise of that question, you’d want a judge who has never written anything or thought anything, is a completely blank slate and that would be stupid,” Kennedy said. “That would be doubling down on stupid.”