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Where does Brett Kavanaugh see the limits of executive power?

Confirmation hearings for Supreme Court nominee Brett Kavanaugh will begin a week from today. Set against the backdrop of the ongoing Mueller investigation, new attention is being focused on Kavanaugh’s record on executive power. John Yang turns to Jonathan Turley, a law professor at George Washington University, and Robert Barnes, a Supreme Court reporter for the Washington Post, for analysis.

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  • Judy Woodruff:

    One week from today, President Trump's nominee to the Supreme Court begins what is expected to be a contentious confirmation process before the Senate Judiciary Committee.

    John Yang continues our look at where Brett Kavanaugh stands on key issues the senators are expected ask him about.

  • John Yang:

    Judy, Kavanaugh's confirmation hearings against the backdrop of the Mueller investigation focuses attention on the nominee's record on presidential powers.

    Can a sitting president be charged with a crime? Can he be forced to turn over evidence?

    We're joined by Robert Barnes, who covers the Supreme Court for The Washington Post, and Jonathan Turley, a law professor at George Washington University.

    Gentlemen, welcome to you both. Thanks for being here.

    A lot to cover here.

    Bob, let me start with you.

    On these two questions, can a sitting president be charged with a crime, can he be compelled to turn over evidence, physical evidence or testimony, what has Brett Kavanaugh said about that in — on his — in his record?

  • Robert Barnes:

    Well, he hasn't answered either of those specifically.

    But there are a couple of things in his past that we know that the committee is going to look at closely. There are two cases about turning over evidence, for the president to do that. One is U.S. vs. Nixon, in which the president, Nixon, was required to turn over White House tapes.

    There is Jones v. Clinton, in which President Clinton was told by the Supreme Court that, yes, he had to sit for a deposition in Paula Jones' civil case against him.

    And in that first case, U.S. v. Nixon, we have kind of conflicting views from Brett Kavanaugh. In a panel in 1999, he raised the question about whether that unanimous decision by the Supreme Court was wrongly decided. He said he knew that was hearsay, but he raised the issue.

    But he's also called it one of the great decisions that the court has made and a real important decision for judicial independence from the president. So that is a question that's going to be asked of Brett Kavanaugh. Where exactly does he stand on that question?

    And it's one that the Democrats especially on the committee, you can expect, will hit him very hard on.

  • John Yang:

    And, Bob, he has written about the question of whether or not a president can be charged with a crime or should be charged with a crime, a sitting president.

  • Robert Barnes:

    Should be.

    Yes, he was part of the Starr team, Kenneth Starr team, investigating Clinton, was very tough on Clinton, at the time said it was their job to get to the bottom what he called his revolting behavior.

    But he had a change of heart later on. He wrote a piece for a law review, and he's talked about it in which he says that those kind of investigations could be put aside while the president was in office, impeachment is the way to go if you think that the president has really engaged in wrongdoing.

    But he suggested that Congress might want to protect a president from those sorts of investigations while he's in office, because the job of the presidency is just too tough to be taken up with those kinds of things.

  • John Yang:

    So, Jonathan, he suggested the heresy of saying that U.S. v. Nixon was wrong. He has said that the — that Congress should pass a law, not necessarily — to prevent the president from being charged, not necessary saying he finds that in the Constitution.

  • Jonathan Turley:

    That's right. That's an important distinction.

    He didn't say that the president cannot be criminally investigated or prosecuted. He said that would have to come from Congress.

    But there's no question that his natural default position seems to be Article 2, that, when he has tough questions, he tends to default to Article 2 and presidential powers. That's different from many people, including myself, who tend to treat Article 1 as a default position.

    For some of us, we view Congress as a more stabilizing institution, where different views are hashed out. For Kavanaugh, he views the presidency as the stabilizing position. And that's going to mean a very significant change in some areas on the Supreme Court.

  • John Yang:

    Talk about that, the change on the Supreme Court. How is this different, this view different from the man he's — that President Trump wants him to replace, Anthony Kennedy?

  • Jonathan Turley:

    Well, there's going to be aspects of Kennedy's legacy that are — I think are clearly at risk, things like affirmative action, criminal justice issues, where he was 5-4 vote and the author of critical decisions.

    On presidential power, Kennedy was sort of in the middle on that one. He tended to give the presidency deference, recognized privileges. But on critical moments, he did depart from that position, including a case on detainee rights, where he recognized habeas corpus, or judicial review, rights in these detainees in Guantanamo Bay.

    Kavanaugh had not been sympathetic on the D.C. Circuit in those cases. He has ruled against them. And the expectation is that's one of the areas of Kennedy's legacy that is likely to go.

  • John Yang:

    Bob, given the — sort of the political environment, what's going on with the Mueller investigation, how do you think this is going to play out next week in the committee room, when they have the confirmation hearings?

  • Robert Barnes:

    Well, remember that last time, with Justice Gorsuch, a constant theme in the committee's questioning was, can you be independent? Can you stand up to the president?

    President Trump at the time was really talking about federal judges who had stood in the way of his travel ban, that they were getting in the way of what he wanted to do, and there were a lot of questions to Gorsuch about his independence and the independence of the federal judiciary.

    I think you will see that even amplified in this case. As Jonathan mentioned, this is a case — this is a replacement that could really change the direction of the court in many ways. And so its importance is ramped up.

    And this is all playing out against the daily backdrop of indictments and convictions and guilty pleas that Mueller and his staff are racking up. I mean, it's one of the sort of questions in the forefront of the public's mind right now.

    And if there is some question about whether Kavanaugh would be a vote to stop this or to not let this investigation go forward, I think that's something you're going to hear a lot of next week.

  • John Yang:

    Jonathan, how unusual is this? This is a nominee who has things on the record, in the written record, about an issue that is front burner right now.

  • Jonathan Turley:

    That's right.

    First of all, the nominees, as a lot of presidents prefer, are sort of blind date. They try to get people who haven't said anything interesting in their entire lives. Those are the perfect nominees.

    He has said a lot that's interesting, a lot that is controversial. But the other benefit nominees have is the level of abstraction with constitutional questions that allow you to get beyond them. You don't want to talk about a fire department budget with a five-alarm fire down the street, and that's what's happening.

    So there's going to be an immediacy. And people may not be satisfied, I expect, with the type of abstract answers they will get from Kavanaugh.

  • John Yang:

    Jonathan Turley of George Washington University, Bob Barnes of The Washington Post, thank you very much.

  • Jonathan Turley:

    Thank you.

  • Robert Barnes:

    Thank you.

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