During an CNN interview on Tuesday morning, White House deputy press secretary Raj Shah did not deny an NBC report that outgoing Supreme Court Justice Anthony Kennedy “received assurances” from President Trump that if he retired, Judge Brett Kavanaugh — one of Kennedy’s former clerks — would be nominated to be his replacement.
Source familiar tells NBC that Justice Kennedy had been in negotiations with the Trump team for months over Kennedy’s replacement. Once Kennedy received assurances that it would be Kavanaugh (his former law clerk) Kennedy felt comfortable retiring – @LACaldwellDC & @frankthorp
— Geoff Bennett (@GeoffRBennett) July 10, 2018
Asked repeatedly if some sort of deal between Trump and Kennedy was struck before Kennedy announced his retirement, Shah dodged, saying things like “I’m not going to read out private conversations that Justice Kennedy had with either members of the White House or the president,” and, “Justice Kennedy can speak for himself.” But what Shah didn’t do is deny the NBC report.
If NBC’s report is accurate, it means Kennedy would effectively have been given control over a SCOTUS seat for 60 years — the 30 years he served, and the 30 or so the 53-year-old Kavanaugh will likely serve on the court if confirmed.
At another point during the CNN interview, Shah was asked if Trump was familiar with an article Kavanaugh’s wrote that could become relevant to SCOTUS as special counsel Robert Mueller’s investigation of the Trump campaign unfolds — a 2009 law review article in which Kavanaugh argued that sitting presidents are above the law.
“The indictment and trial of a sitting president… would cripple the federal government, rendering it unable to function with credibility in either the international or domestic areas,” Kavanaugh wrote. “Such an outcome would ill serve the public interest, especially in times of financial or national security crisis.”
Shah again dodged, saying that “the president and the White House are aware of all of Judge Kavanaugh’s public record, but what we are focused on is that if you look at his opinions, if you look at his writings, there are some that would emphasize greater power for the executive, some that would limit the power. Some that would put a ruling on one or another side of a specific issue. But the constant strain through all of the rulings, through all the opinions, through all the writings is an individual who interprets the law and the Constitution as it was written and doesn’t legislate from the bench.”
“Does the president agree with the 2009 writing?” host John Berman followed up.
“I haven’t asked the president about that writing,” Shah said.
UPDATE (7/10, 2:24 p.m.) — Later Tuesday, NBC sought to clarify that whatever deal the White House had with Kennedy had a bit of wiggle room.
“I am told by a source who was not directly part of the talks that Kennedy provided Pres. Trump/ WH a list of acceptable replacements,” Leigh Ann Caldwell reported on Twitter.
I’ve deleted this tweet because it incorrectly implies a transactional nature in Kennedy’s replacement. I am told by a source who was not directly part of the talks that Kennedy provided Pres. Trump/ WH a list of acceptable replacements. (1/2) pic.twitter.com/ptxJmrbH9S
— Leigh Ann Caldwell (@LACaldwellDC) July 10, 2018
In another tweet, Caldwell added that while Kennedy’s list contained a number of names, “Kavanaugh was the only one who was thought conservative enough to consider.”