Constitutional Time Out? Mueller Becomes Latest Basis For Opposing Any Trump Nominee

440px-Director_Robert_S._Mueller-_III440px-Official_Portrait_of_President_Donald_TrumpBelow 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.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

186 thoughts on “Constitutional Time Out? Mueller Becomes Latest Basis For Opposing Any Trump Nominee”

  1. The cynic in me says that a possible way to play this is for Trump to nominate Amy Coney Barrett with the understanding that she will not be confirmed. Politically everybody can go back to their base of support claiming to have done the “right thing.”

    The possibilities after that include Kavanaugh or Kethledge.

  2. Just curious if Bob Mueller stays in touch with Whitey Bulger?

  3. Agreed, Donald Trump will never make it to Mt. Rushmore. He’ll have his own mountain.

  4. Can you imagine the mass suicides if Trump gets a third pick?

  5. If Dems were in the majority and in danger of losing it, you’d hear crickets on the issue of delaying the nomination.

  6. Enigma, you’re right, the people of this country live in 2 different worlds. And nobody wants to hold an olive branch out to the person on the other side.

    1. The foreign “have-nots” want what the “haves” have.

      The principles of the Communist Manifesto, control of the means of production, central planning, redistribution of wealth and social engineering, have been imposed on free Americans to steal from the “haves” to gift to the foreign “have nots.”

      Failing to repatriate after release from slavery (Moses had the Israelites out of Egypt and on their way to the “promised land” before the ink was dry on their release papers), asylum (it’s OK to go home now) and invasion by a huge segment of the population of the corrupt and destitute country next door do not constitute “immigration” or proper and permissible citizenship. They are invasion and occupation. American small businesses enjoy cheap foreign labor because laborers in America are retired and independently wealthy on redistributed wealth as welfare, food stamps, utility subsidies, Obamacare, WIC, HAMP, HARP, SS disability, unemployment, social services, etc., etc., etc.

    1. Joseph Kennedy, from a poor Irish immigrant family, had no visible means of support becoming fabulously “wealthy” as a criminal mob bootlegger and rum-runner and engaging in subsequent illicit money-making schemes. Joseph Kennedy’s dirty money persists to this day.

      Seriously?

      LBJ literally had people killed to retain his power.

      Try “The Man Who Killed Kennedy: The Case Against LBJ” – Roger Stone

      Seriously?

      JFK and RFK had Marilyn Monroe killed by undetectable toxic suppository to keep secrets and retain power.

      Seriously?

      Ted Kennedy criminally fled the scene of a crime resulting in the manslaughter death of Mary Jo Kopechne.

      Seriously?

      Bill Clinton accusers have died by the dozens suffering “Arkancides.”

      Hillary took a bribe from Tyson Chicken, turning $1K into $100K in six months without one iota of business acumen.

      Seriously, you just said that?

      You are a fraud.

  7. Enjoying the comments, it’s like watching people from two different universes talking past each other. I never bought the theory that we have to play by McConnell rules this election because it’s the same as what he did with Gorsuch. It is different and it’s not like the mid-terms would affect Trump’s choice?

    The Trump under investigation has some merit but these days, what President doesn’t have some aspect of their Administration under investigation, at least by Congress that could potentially ensnare the President?
    What does concern me is the thought that Russia could now be extending their influence beyond our elections and into the Supreme Court. It’s not as if Trump hasn’t done a number of questionable things on Putin’s wish list. I’m reminded of the Senate rushing to confirm Pruitt’s nomination as EPA director when there were tons of E-mails from Oklahoma between Pruitt and industry leaders that a judge ordered released and they only had to wait a couple days to see what they contained. We know of dozens of contacts between Russians and the Trump campaign/administration that they lied about. Isn’t it worth knowing what was going on before a lifetime appointment was being made? You know what the answer would be if it were Hillary or Obama?

    1. Enigmainblack said, “Enjoying the comments. . .”

      Me too. What a banner-waving field day. There’s more where that came from. Mull, Mueller, Mull.

  8. People make too much of nothing and think by repeating it for a hundred years it means something. There are exactly 101 people who have a legal interest in this matter.

    1. The President; in his own time frame the record being 847 days is obliged to nominate a candidate using any requirement he or she sees fit to apply. A total of zero other people have a vested or legal interest in that nomination. It may be as short as “I Nominate Frederick T. Gremlin The III with zero explanation” Or it may be accompanied by Froggy’s envious record of accomplishments and abilities. The President may ask for advise or not as he or she sees fit.

    So. One nomination with no other requirements other than making one nomination.

    2. 100 people if they are all present must approve or disapprove of the nomination with a majority vote. There is nothing stipulated as to any requirements including morals, values and ethics. How it’s done, Where it is done including openly or closed session or even vote by mail does not exist There is no requirement to interview the nominee. In the case of Garland enough Senator were disinterested in the nomination to go even that far… it was pocket vetoed by the majority and ignored.

    That President refused to make another nomination.and went on to damage himself in other ways. That was his right. and one e.g. does not make a hard and fast rule..

    3 . What about individual qualities or other traits? Not age, gender, education, citizenship, lingujistic ability, the ability to read, write or do sums. None of that exists.

    All it says is one nominates, 100 confirms or in a majority do not confirm. Beem tjat way since checks and balances was created .

    If anything the Court should disallow the current system of selecting Senators as it too was an integral part of checks and balances. That applies to most of what the progressives have come up with since 1909 as they incrementally whittle away at our Constitution. What they haven’t thought about is considering an impeachment for any who violate openly their Oath of Office. starting with the Cory Bookers and Motor Mouth Harris’s.

    But it would add nothing to the selection of a SCOTUS Justice.

    Not even SCOTUS can get in the way.

    ONE nominates
    ONE HUNDRED confirms with a majority.

    The rest is Bovine Effluent. and has no bearing on the subject at hand.

    Now do the people get a say? No. But the citizens do. When they voted in or voted out whom ever and if they are not in a slave state have the right of recall which reminds me.

    Who the Hell decided that Congressionals are a form of a superior ruling class and exempt from being jerked out and replaced. Where in the 9th and 10th Amendment was that granted to the Federal Government?

    I see one part which gives the States and the States only the right to conduct their elections and recall, initiative and referendum are a part of that. So is term limits which was voted into being in 1998 – 1999. I would like to see a balanced court revisit those subjects along with Money As Free Speech.

  9. Here is the president, verbatim, from his Montana rally:

    “We do without, like, the musical instruments. This is the only musical, the mouth. And hopefully the brain, attached to the mouth, right? The brain more important than the mouth is the brain. The brain is much more important.”

    Time for a workup.

    1. Screw’em, Such trash you write while demonstrating a lack of intellect accepting out of context parts of a speech that isn’t being read. He was actually pointing out how his rally’s break so many records using very little space and how he doesn’t need a basketball team and doesn’t need musical instruments etc. to do so.

      Listen to the complete speech even though that requires more than copy and paste. He can ad-lib better than most politicians we have seen. One has to stop listening to people that copy what others say without knowing anything about it before they draw conclusions. It’s dishonest.

      One video is at https://www.youtube.com/watch?v=GBdTrjdPKQk

      Start a bit before 40 minutes and in about a half a minute you will hear the words of your quote.

  10. Tom Nash, your right, it was hypothetical. But this is something left would like.

  11. OT – Ed Schultz RIP. One of the few journalists who dared speak truth to power — MSDNC got rid of him, fortunately RT America gave him a platform.

  12. Allan’s spouting off about Antifa, somewhere way down the line, here. Let’s take a look at the other side of equation.

    FRONTLINE and ProPublica have teamed up:

    “He is a Member of a Violent White Supremacist Group; So Why is He Working for a Defense Contractor with a Security Clearance?”

    https://www.pbs.org/wgbh/frontline/article/he-is-a-member-of-a-violent-white-supremacist-group-so-why-is-he-working-for-a-defense-contractor-with-a-security-clearance/

      1. From the site:

        “Hate crimes and bias incidents are a national problem, but there’s no reliable data on their nature or prevalence. We’re collecting and verifying reports, building a database of tips for use by journalists, researchers and civil-rights organizations. ”

        Actually, the Bureau of Justice Statistics does collect data. My wager is that the data is inconvenient to the thesis they’d like to push.

    1. Anonymous. let them investigate that man if he has done something wrong or espoused beliefs incompatible with his job description, but at the same time let us arrest those ANTIFA persons that were engaged in violent behavior including starting fires endangering the lives of many and one in particular who had to be taken to safety wearing a bulletproof vest so your friends didn’t kill him. That gentleman whose life was being threatened by your friends had no weapons and no intention of hurting anyone. He was where he was supposed to be and acting within the law.

  13. Trump is under active criminal investigation. From the government or state laws. To pretend otherwise is pure fantasy.

    1. Got that right—and considering that when President Bawbag finally DOES get indicted, there’s a good chance the case will wind up in front of the Supremes, two of which he will have appointed by that time (if Repugnicans get their way)—and there’ll be nothing to require those two “Justices” to recuse themselves.

      1. There is a remote chance that Kennedy may have resigned for that very reason. But the alternative explanations are equally plausible. Oh! Well. They say that the Justice Department has a Public Integrity Section [PIN] headed by a former GW professor named Jonathan Kravis who also worked for Obama in some capacity that I cannot presently recall. In any case, PIN and, therefore, Kravis has jurisdiction over official corruption involving federal judges as well as election law violations. Something to think about.

      2. Jonathan Kravis is a Trial Attorney in the Public Integrity Section of the Criminal Division of the U.S. Department of Justice. Prior to joining the Public Integrity Section, he was an Assistant U.S. Attorney for the District of Columbia. From 2009 to 2010, he served as Associate White House Counsel, advising White House staff on a variety of legal matters. Mr. Kravis clerked for Judge Merrick Garland on the United States Court of Appeals for the D.C. Circuit and for Justice Stephen Breyer on the United States Supreme Court.

        Also, Kravis is currently an adjunct professor at George Washington University–not a former one [oops].

    2. And that means what besides nothing?

      You yourself are probably under investigation by one or more government investigation for being in this blog?

      Face it you people are just not that interesting nor relevant anymore.

      1. Michael Aarethun, it doesn’t mean anything YET. But it could mean something in the future. There’s a pretty good chance that SCOTUS will have to decide whether a grand jury can subpoena a sitting President. Justice Kennedy might have faced calls to recuse himself from such a decision had he not resigned. Trump’s nominee to replace Kennedy could, therefore, become the deciding vote either in favor of or against any grand jury subpoena issued for Trump’s testimony. And that would definitely mean SOMETHING, Michael.

  14. “Constitutional Time Out? Mueller Becomes Latest Basis For Opposing Any Trump Nominee”

    “…unleashed a frenzy of creative arguments…”

    America has existed in a state of “Constitutional Time Out” as progressive/socialist/democrats-cum-communists “unleashed a frenzy of creative arguments” going all the way back to the unconstitutional and dictatorial “Reign of Terror” of “Crazy Abe” Lincoln including the “Reconstruction Amendments of his successors,” imposed without a quorum at the point of a gun under the duress of post-war military occupation, through the Progressive era highlighted by the incoherent, hysterical, unconstitutional and improperly ratified 19th Amendment and LBJ’s unconstitutional communistic redistribution of his “Great Society” right up to the preposterous and immutably unconstitutional Obamacare.

    The Constitution actually precludes control of the means of production (i.e. “regulation), central planning, redistribution of wealth and social engineering, all straight out of the Communist Manifesto.

    Face it, progressives/socialists/liberals-cum-communists:

    You hate the cold hard truth.

    You hate the facts.

    You hate the result of freedom: The success and dominion of white people (you do love their money).

    You hate the Constitution.

    You hate freedom.
    ______________

    “Constitutional Time Out” to be sure!

    1. Crazy George, with the nonsense de jour. He sure does like white people!

    2. George said, “The Constitution actually precludes control of the means of production . . . ”

      George, the Constitution does not say even so little as one word on the subject of ‘the means of production.’ Unless, that is, you are supposing that the words ‘general welfare’ are somehow Constitutional ‘code words’ for ‘the means of production.’ Well . . . Are you, George?

      I ask because, if general welfare is code for the means of production, then the Constitution actually cedes control of the means of production to The Congress for the sake of the general welfare; which, in turn, might inform Lincoln’s understanding of, say, The Homestead Act of 1862, for instance, and despite the fact that none of the Homestead Acts ever said even so little as one word about the success and dominion of White people, let alone their stinking green-back dollars.

      Oh yes! We read you, Ingrate. Loud and clear. And we do deeply regret taking you, personally, back into The Union.

      1. Thanks again for reading.

        To be sure, “…general Welfare” is constitutional and in stark contrast to individual welfare which is deliberately omitted and, thereby, excluded, by the Constitution. Individual welfare is the equivalent of “redistribution of wealth” in the Communist Manifesto, therefore, all forms of redistribution of wealth are unconstitutional.

        Read the Constitution sometime. The right to private property is constitutional. James Madison defined “private property” as “that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”

        You ignore the rationale of the Framers of the Constitution and apply Karl Marx’s parasitic and dependent dogma and ideology to the U.S. Constitution. You may only do that in your own mind, such as it is. In America, the Constitution and the words that comprise it, as clarified by the writings of the Framers, hold dominion. These are those words: “Private property, that one man claims and exercises…in exclusion of every other individual.” No other indivdual or government of individuals may “…claim and exercise…” or possess and dispose of said private property. As sad as it is. you don’t get to steal Other People’s Money (OPM) for your own purposes.

        Corporations or businesses are the private property of their owners. The owners have the exclusive right to possess and dispose of their private property. Communistic parasites like you cannot, and refuse to grasp the fact that you cannot, confiscate the property of others by title or REGULATION. You don’t own it and you can’t tell the owners what to do with it.

        Private property that “…one man claims and exercises…in exclusion of every other individual…” cannot be REGULATED by the government.

        REGULATION by the government is unconstitutional.

        “CONTROL OF THE MEANS OF PRODUCTION” cannot be accomplished through REGULATION by the government.

        1. George said, “As sad as it is. you don’t get to steal Other People’s Money (OPM) for your own purposes.”

          Article I, Section 8 of the US Constitution says:

          1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

          2: To borrow Money on the credit of the United States;

          3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

          4: To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

          5: To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

          6: To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

          George also said, “Read the Constitution sometime.”

          When will George heed his own advice?

        2. George also said, “REGULATION by the government is unconstitutional. ‘CONTROL OF THE MEANS OF PRODUCTION’ cannot be accomplished through REGULATION by the government.”

          Article I, Section 8 of the US Constitution also says that Congress shall have the power . . .

          18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

          Some observers have suggested that the primary ‘means of production’ are land, water, plants, animals, minerals, metals and certain other commodities as well as the human labor and mechanical arts [e.g. tools and technology] necessary to exploit the foregoing primary means of production for the sake of accumulating the wealth subject to tax levies subsequently expended, not only to pay debts, but to raise such armies and navies as may be useful to the purpose of conquering the land, water, plants, animals, minerals, metals and certain other commodities that may very well be the primary means of production, as suggested; and even though the US Constitution makes no explicit reference to the foregoing primary means of production–albeit, with the notable exception of certain Constitutional references to those persons previously held in bondage were more commonly known as slaves. One wonders whether slavery might be what George is really getting at when George posts above that “CONTROL OF THE MEANS OF PRODUCTION cannot be accomplished through REGULATION by the government.”

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