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 TrumpRosenstein expected to leave DOJ next month: reports Allies wary of Shanahan's assurances with looming presence of Trump States file lawsuit seeking to block Trump's national emergency declaration 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.

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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 BookerHarris, Booker call for judgement on Jussie Smollett case to be withheld until investigation is completed Barack, Michelle Obama expected to refrain from endorsing in 2020 Dem primary: report Jussie Smollett case shows media villainizing Trump and his supporters, without proof — again 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 SchumerGOP Green New Deal stunt is a great deal for Democrats National emergency declaration — a legal fight Trump is likely to win House Judiciary Dems seek answers over Trump's national emergency declaration 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 McCainGOP senator says Republicans didn't control Senate when they held majority Pence met with silence after mentioning Trump in Munich speech Mark Kelly's campaign raises over M in days after launching Senate bid MORE (Ariz.), Susan CollinsSusan Margaret CollinsGOP Green New Deal stunt is a great deal for Democrats On unilateral executive action, Mitch McConnell was right — in 2014 Congress must step up to protect Medicare home health care MORE (Maine) and Lisa MurkowskiLisa Ann MurkowskiOn unilateral executive action, Mitch McConnell was right — in 2014 The Hill's 12:30 Report — Presented by Kidney Care Partners — Trump escalates border fight with emergency declaration On The Money: Trump declares emergency at border | Braces for legal fight | Move divides GOP | Trump signs border deal to avoid shutdown | Winners, losers from spending fight | US, China trade talks to resume next week MORE (Alaska) — who all voted to block an ObamaCare repeal effort last year.

Sen. Dick DurbinRichard (Dick) Joseph DurbinDemocrats brush off GOP 'trolling' over Green New Deal Trump praises law enforcement response to shooting at Illinois business Five dead in shooting at manufacturing plant in Aurora, Illinois 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 says she thinks Biden will run after meeting with him Trump judicial nominee Neomi Rao seeks to clarify past remarks on date rape Bottom Line 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 FlakeTrump suggests Heller lost reelection bid because he was 'hostile' during 2016 presidential campaign Live coverage: Trump delivers State of the Union Sasse’s jabs at Trump spark talk of primary challenger 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 HeitkampOvernight Energy: Trump taps ex-oil lobbyist Bernhardt to lead Interior | Bernhardt slams Obama officials for agency's ethics issues | Head of major green group steps down Trump picks ex-oil lobbyist David Bernhardt for Interior secretary On The Money: Shutdown Day 27 | Trump fires back at Pelosi by canceling her foreign travel | Dems blast 'petty' move | Trump also cancels delegation to Davos | House votes to disapprove of Trump lifting Russia sanction 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) ManchinDemocrats brush off GOP 'trolling' over Green New Deal Senate confirms Trump pick William Barr as new attorney general GOP wants to pit Ocasio-Cortez against Democrats in the Senate 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 Nelson2020 party politics in Puerto Rico There is no winning without Latinos as part of your coalition Dem 2020 candidates court Puerto Rico as long nomination contest looms 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) TesterHow the border deal came together GOP braces for Trump's emergency declaration Border talks stall as another shutdown looms 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 CornynOn unilateral executive action, Mitch McConnell was right — in 2014 Poll shows competitive matchup if O’Rourke ran for Senate again On The Money: Trump declares emergency at border | Braces for legal fight | Move divides GOP | Trump signs border deal to avoid shutdown | Winners, losers from spending fight | US, China trade talks to resume next week 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.”