Sen. Jeff Merkley called it 'unacceptable' for Trump to make Supreme Court appointments that would allow him to pardon himself.
Merkley made the comments shortly after Trump announced his choice to replace retired Justice Anthony Kennedy as the next Supreme Court justice. He also said he doesn't believe Trump should be allowed to appoint anyone to the Supreme Court while he is still under investigation for potentially colluding with Russia.
As Merkley pointed out, Kavanaugh has argued in numerous legal texts that a sitting president should not be subject to criminal or civil litigation — indicating that he would likely issue rulings in favor of Trump if the Supreme Court is asked to hear a case challenging the authority of special counsel Mueller or the constitutionality of his investigation.
Citing Kavanaugh's positions in these legal texts, Merkley suggested that this is exactly why Trump chose him for the Supreme Court — a move that would reflect Trump's desperation as Mueller's investigation closes in.
"@realDonaldTrump is terrified of Robert Mueller," Merkley wrote in a tweet. "It’s no wonder he chose Kavanaugh as his #SCOTUSPick. He’s someone who argued that Sitting Presidents should be immune from prosecution and not be indicted & POTUS has the sole power to appoint and fire special prosecutors at will."
"Brett Kavanaugh could give @realDonaldTrump the power to pardon himself. This is unacceptable," he added.
This isn't just a hypothetical scenario. Legal scholars say it’s very possible that critical questions related to the Russia probe will end up before the Supreme Court. Among these questions are whether or not a sitting president can be indicted or even compelled to testify, and whether there are limits to presidential pardon power.
These questions apparently factored into Trump's decision to tap Kavanaugh as the next Supreme Court justice. According to CNN’s Jim Acosta, Trump's team specifically reviewed Kavanaugh's writings on presidential power and indicting a sitting president before nominating him.
On the question of indictment, Kavanaugh has made his opinion quite clear: "The indictment and trial of a sitting President ... would cripple the federal government," he wrote in a 2009 article.
The potential for Kavanaugh to face a conflict of interest by being asked to rule on matters directly related to Trump became even more pressing over the weekend when Trump's lawyer, Rudy Giuliani, suggested that Trump would refuse to comply with a subpoena if Mueller issues one.
Clearly, Trump is scared of what evidence Mueller has against him and what additional evidence he may find. He is now in the unprecedented position of using a Supreme Court nomination to obstruct an investigation into his own campaign and to potentially avoid criminal charges.
If Kavanaugh is confirmed and the Supreme Court is asked to rule on matters related to the Russia probe, any ruling Kavanaugh is involved in will be tainted by suspicion.
That's why Merkley is calling for Kavanaugh's confirmation process to be delayed until the Russia investigation is over. He's also urging Americans to call their Senators and tell them that a president under investigation for colluding with a foreign power should not be allowed to appoint a Supreme Court justice.
"This is a fight for the soul of our democracy," Merkley wrote.
Published with permission of The American Independent Foundation.