During the opening minutes of his confirmation hearing on Wednesday, Supreme Court justice nominee Brett Kavanaugh made a point of saying that “no one is above the law in our constitutional system.”
“Under our system of government, the executive branch is subject to the law,” he said. “We make decisions based on law, not based on political pressure, not based on identity of the parties, no matter who you are.”
But a short time later, Kavanaugh refused to answer a question about whether he thinks presidents have to comply with subpoenas issued by the courts — a position in conflict with his lip-service about everyone being subject to the law.
While being questioned by Sen. Diane Feinstein (D-CA), Kavanaugh dodged her question about whether presidents have to comply with the courts by calling it “a hypothetical,” and refused to give a direct answer answer.
“I can’t give you an answer on that hypothetical question,” he said.
But with President Trump under investigation by special counsel Robert Mueller and thus far refusing to sit for an interview with him, the question of whether presidents have to comply with subpoenas may soon become a very real one the Supreme Court has to grapple with. And there are indications that Kavanaugh would side with Trump if he refuses to comply.
In 2009, Kavanaugh wrote an article for a law journal in which he argued that presidents should not be subject to any sort of investigations while in office. During another part of Wednesday’s hearing, Kavanaugh said his position was inspired by September 11, which persuaded him that presidents can’t afford to be distracted from their duties to the country.
During Wednesday’s hearing, Kavanaugh went as far as to refuse to say whether he thinks that Trump could pardon himself — something Trump has asserted he has the “absolute right” to do.
As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!
— Donald J. Trump (@realDonaldTrump) June 4, 2018
“The question of self-pardons is something I have never analyzed,” Kavanaugh said. “It is not a question that I have not written about. It is a question therefore that is a hypothetical question that I can’t begin to answer in this context and as a nominee to the Supreme Court.”
Sen. Patrick Leahy (D-VT) followed up by asking Kavanaugh if the president has “the ability to pardon somebody in exchange for a promise from that person that they wouldn’t testify him.” But Kavanaugh wouldn’t answer that one either.
“Senator, I’m not going to answer hypothetical questions of that sort,” he said.
“I hope for the ask of the country that remains a hypothetical question,” Leahy responded.