Democrats use Mueller probe to attack Kavanaugh

Democrats are seizing on special counsel Robert Mueller’s Russia investigation as they plot a strategy to block Brett Kavanaugh’s nomination to the Supreme Court.

Senate Democrats argue that President Trump’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.

{mosads}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 Booker (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 Schumer (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 McCain (Ariz.), Susan Collins (Maine) and Lisa Murkowski (Alaska) — who all voted to block an ObamaCare repeal effort last year.

Sen. Dick Durbin (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 Feinstein (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 Flake (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 Heitkamp (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 Manchin (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 Nelson (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 Tester (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 Cornyn (Texas), the No. 2 GOP senator, dismissed the Democratic demands for recusal as “ridiculous.”

Sen. John Kennedy (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.”