Key questions for high court nominee
How should law handle cases involving Trump?
President Donald Trump’s appointee to the Supreme Court will face cases involving many significant legal issues, such as abortion, immigration and voting rights, to name a few. But other legal issues that are likely to come before the new justice go right to the heart of our democracy — cases relating to Trump himself.
As special counsel Robert Mueller continues his investigation into Russian interference in the 2016 election, we can anticipate potential legal challenges that may soon come before the court. For instance, can a sitting president be charged in an indictment? The Justice Department’s own Office of Legal Counsel has concluded that a sitting president cannot be indicted, and that the only remedy for a president’s crimes is impeachment, but the question has never been put to the court.
Another question is the scope of executive privilege. While the Supreme Court held in 1974 in United States v. Nixon that the privilege is not absolute and “must yield to the demonstrated, specific need for evidence in a pending criminal trial,” that case addressed only a subpoena seeking material items, such as tape recordings. The court has not yet decided whether a sitting president must honor a grand jury subpoena for his testimony.
And how about whether executive power makes it legally impossible for a president to obstruct justice? Some scholars have argued that because the president is the chief executive who oversees the Department of Justice, he is lawfully permitted to end an investigation, even if he interfered to protect himself. Others contend that impeding an investigation with a corrupt intent is a crime, regardless of who commits it. These are just some legal questions that involve potentially existential consequences for Trump’s presidency.
What’s a democracy to do? Demand a promise of recusal from all things Trump? It seems unlikely that a new justice would be required to commit to recusal from a case involving the president simply because he or she was nominated by him. When confronted with the situation in the past, Supreme Court justices have not recused themselves. When the Nixon case was decided, three justices had been appointed by President Richard Nixon — Warren Burger, Lewis Powell and William Rehnquist. Only Rehnquist recused, but not because he was nominated by Nixon, rather because he had previously served in the Nixon administration as the assistant attorney general.
And again in 1997, when the court unanimously held in Clinton v. Jones that a sitting president was not immune from civil litigation arising from matters occurring before his presidency, neither of President Bill Clinton’s appointees, Ruth Bader Ginsburg or Stephen Breyer, recused.
Can we instead insist on delaying confirmation until the Mueller investigation is completed? A credible argument can be made that a president whose fate may be decided by the Supreme Court should not be permitted to appoint a judge who will decide his own case. One option is for the Senate to delay confirmation until the Russia matter is resolved. With 51 Republican votes, though, delay seems unlikely. In fact, Senate Republicans likely will race to confirm the next Supreme Court justice before November’s midterm elections in case they lose their majority.
The best hope for protecting the integrity of our democracy is for the Senate to take seriously its role to provide advice and consent to presidential appointments. Senators must thoroughly study the nominee’s views on executive privilege, executive power and the rule of law. Senators should ask how justices will handle these issues:
❚ Can a president rely on executive privilege to resist a subpoena for grand jury testimony?
❚ Can a sitting president be indicted?
❚ Can a president pardon himself ?
❚ Can a president obstruct justice? And perhaps more importantly, how does a Supreme Court justice protect the rule of law from a president determined to destroy it?
Barbara McQuade, a professor at the University of Michigan Law School, was U.S. Attorney for the Eastern District of Michigan. This column first appeared in the Detroit Free Press.