Below is my column in The Hill newspaper on the latest rationale for opposing any nominee of President Donald Trump: that any nomination or confirmation must wait until the completion of the investigation by Special Counsel Robert Mueller. It is a claim being voiced by both politicians and academics despite the absence of constitutional or historical support.
Here is the column:
In a city where necessity has long been the mother of invention, the retirement of Associate Justice Anthony Kennedy has unleashed a frenzy of creative arguments of why President Trump should not be able to appoint a second member to the Supreme Court. Panic can lead to many things, but principle is not one of them.
According to Democratic politicians and advocates, there is a long standing principle that any nomination by Trump at this time would be clearly improper. This convenient discovery was explained by Sen. Cory Booker (D-N.J.) in a judiciary hearing, where he insisted that, as “a subject of an ongoing criminal investigation,” any nomination or confirmation must wait “until the Mueller investigation is concluded.”
This suggested barrier for a Trump nomination is both artificial and opportunistic. Initially, Democrats argued that Trump should wait until after the midterm elections given the earlier blocking of a vote by Republicans on Merrick Garland’s nomination at the end of the Obama administration. I was critical of the denial of Garland of a vote, but Republicans have noted that this is not a presidential election year and, more importantly, they have no intention of being “Garlanded.”
That has led to this new argument that, somehow, a nomination by Trump would be improper due to special counsel Robert Mueller’s ongoing investigation. It shares the same motivation with the Garland rationale, which is to avoid a vote on the merits of a nomination while claiming that principle, not politics, is guiding the decision.
Even if Trump were an actual target of the investigation, this argument would still be dubious. However, Trump repeatedly has been told that he is not a target but a subject of the special counsel investigation. This position has not changed over the course of two years when former FBI Director James Comey told both Congress and Trump that he was not a target. Moreover, Mueller reportedly told the White House in March that Trump still was not a target but, rather, a subject.
In the U.S. attorney’s manual, a “subject” is any “person whose conduct is within the scope of the grand jury’s investigation.” Nevertheless, the mere fact that conduct is relevant to an investigation is being claimed by Democrats as a barrier to a president carrying out a constitutional duty. So, a president is expected to leave the Supreme Court with just eight members, and likely deadlock votes, until there is no longer even a chance, no matter how remote, that he could be elevated to target status and then elevated to being a defendant.
Worse yet, this same logic applies to both state and federal investigations. In either case, the Supreme Court could be the ultimate deciding body on questions related to such investigations. Thus, hostile state attorneys general or district attorneys could effectively block a nomination or confirmation by launching investigations into a president’s conduct.
A special or independent counsel investigation can easily go on for years, so merely starting an investigation into a matter touching on a president’s conduct would be enough to strip presidents of their Article II authority of appointments to the highest court. After all, the Whitewater investigation went on for 2,978 days. Trump has roughly 930 days left in his presidency. Mueller was appointed roughly 400 days ago, so even if he moved at twice the pace of Whitewater independent counsel Kenneth Starr, it could be another 1,100 days until Trump would be free to make an appointment, under this theory. That period conveniently would end more than two months into the term of the next presidential term.
If Democrats thought the failure of the Senate to vote on Garland was wrong after roughly 300 days, try a denial of the right of a president to nominate a justice for potentially 10 times that period. Putting such practical considerations aside, the constitutional implications are staggering if a president could be effectively blocked by the mere initiation of a criminal investigation on the state or federal levels.
One of my colleagues, Paul Berman, explained in the New York Times that “people under the cloud of investigation do not get to pick the judges who may preside over their cases. By this logic, President Trump should not be permitted to appoint a new Supreme Court justice until after the special counsel investigation is over, and we know for sure whether there is evidence of wrongdoing.” Of course, by this same logic, presidents “under a cloud” should be denied the appointment of judges on lower courts as well as Supreme Court justices.
Nothing in the Constitution or history supports the claim that any “cloud of investigation” over a president is a barrier to the confirmation of a nominee. Indeed, not a single such objection was voiced when President Clinton appointed Stephen Breyer on April 6, 1994, to replace Associate Justice Harry Blackmun, three months after the appointment of the Whitewater independent counsel. During the summer Breyer was confirmed, Congress subpoenaed 29 Clinton administration officials in its own investigation, and the Clinton legal team ramped up for challenges.
Of course, Trump is not Clinton, and that seems precisely the point. Berman argued that Trump’s “possible crimes are inextricable from his desire for unilateral control of the federal government” and that he is “a president who refuses to acknowledge any checks on his power as legitimate, whether those checks come from the courts, the legislature, the media, the government bureaucracy or his political opponents. This is the perfect recipe for autocracy. In such a world, the importance of checks and balances has never been greater.”
The last point appears to be most important for politicians and advocates alike. The primary check on a president’s appointment power is to deny confirmation. This argument offers Democratic senators the pretense of principle in refusing to vote to confirm any nominee of Trump. The duty of senators is not to refuse to confirm but to insist that a nominee has the intellectual and ethical independence to fulfil the oath of office.
It often seems that both the U.S. criminal code and the Constitution are endlessly flexible when the subject is Trump. However, if necessity is the very mother of invention, consistency is the very meaning of the rule of law. Whoever Trump’s nominee may be, it is the nominee, not the nominating president, who should be the focus of a confirmation vote.