I woke up in the middle of the night last night thinking about something that had been eating at me since Tuesday. Many of our assumptions about the course of the Mueller investigation are based on the premise or the backstop that Supreme Court will enforce the Nixon-era precedents about the rule of law and presidency. This seemed less clear to me after Tuesday’s decisions, though I didn’t return to that issue after yesterday’s news. I did last night at 3 a.m. The Mueller probe is the most immediate issue but it’s really just a proxy for our democratic institutions. I’ve said before that Trump is an autocrat without an autocracy. But he’s working on it and the question is whether there will be any check.
Looking through my email I found this from a former federal public corruption prosecutor …
I am deeply concerned that the Kennedy retirement will put the rule of law and our democratic institutions at graver risk than ever before. The President of the United States is the subject of a serious federal criminal investigation into (1) whether he conspired with a foreign adversary to help him win a narrow electoral college victory; and (2) whether he has obstructed that very investigation by, among things, firing the FBI director in charge of the investigation. The President will now be able to choose the person who, in a very real sense, may be the ultimate arbiter of whether or not he and others are ever held accountable.
Consider that the Supreme Court may be called upon to decide, for example, whether the President can pardon himself or others to protect himself, whether a sitting President can be indicted, whether a sitting President can be compelled to testify before a federal grand jury, whether the appointment of the Special Counsel somehow violated the Appointments Clause (as some conservatives absurdly assert), and whether a President can ever obstruct justice. Even beyond the Mueller investigation, the Supreme Court may be called upon to decide whether the President’s acceptance of significant foreign funds through his businesses violates the Emoluments Clause. We have no idea how Justice Kennedy would have ruled on these questions (he hasn’t exactly distinguished himself in the last two days). But we have no doubt how a Trump appointee will. Never before has the selection of a Supreme Court nominee been so thoroughly compromised by the President’s profound personal interest in appointing a judge the President can count on to protect the President. This is DEFCON 1 for the rule of law in this country.
Democrats in the Senate seem to have missed this point, or are too feeble to effectively prosecute the basic conflict of interest case. Instead, they have fallen back on the “McConnell rule” as a justification to delay a vote. Make no mistake, the treatment of Judge Garland and the theft of President Obama’s nomination power was an outrage and a terrible precedent. But Democrats should not endorse it. They should not let McConnell’s mendacity become the norm. It should stand on its own in history as the flagrant abuse of power that it was. In any event, Democrats have a much stronger case to make: no vote should be taken until after the Special Counsel has submitted a report to Congress, or closed the investigation of the President. A President under federal criminal investigation for stealing an election should not be able to nominate the person who may decide his fate. There will be a cloud over the legitimacy of this nomination unless and until the cloud of the Mueller investigation has been lifted.