Whitehouse Zeroes In On Kavanaugh’s Careful Parsing Of US v. Nixon

September 6, 2018 8:55 p.m.

Supreme Court nominee Brett Kavanaugh’s use of the phrase “trial court subpoena” when discussing a monumental Supreme Court decision in the Watergate investigation was scrutinized at length by Sen. Sheldon Whitehouse (D-RI) during Thursday’s hearing.

U.S. v. Nixon — a unanimous Supreme Court ruling holding that President Nixon was required to turn over his tapes — was invoked repeatedly by Kavanaugh when he was being grilled aggressively about his views of special counsel investigations of the President. Kavanaugh called it “One of the greatest moments in American judicial history.”

Whitehouse wanted to know why, in describing the decision, Kavanaugh “virtually” always made sure to specify that it held that Nixon had to comply with a trial court subpoena; there are currently legal challenges to the special counsel Robert Mueller’s grand jury subpoenas.

Is that a factual observation?” Whitehouse asked Kavanaugh of his “trial court subpoena” word choice.

Or a loophole, an escape hatch?”

“So when that comes you can say, ‘Well, I told the Senate about that because that was a trial court subpoena. But Mueller is coming with a grand jury subpoena, and they’re different and so nothing that I said in that hearing should interfere with my ability to stop Mueller’s subpoenas,'” Whitehouse said.

“What in that context is your view of the trial court subpoena part in U.S. v. Nixon. Is that essential to the holding or were you just using it to describe one of the facts of the holding?” Whitehouse asked.

Kavanaugh attempted to fall back on his usual rhetoric: that as a sitting a judge and potential Supreme Court justice he can’t be commenting on hypotheticals related to cases that might come before him.

Whitehouse responded that it was Kavanaugh who had continually brought up U.S. v. Nixon.

You’re the one who chose to use it as a counterpoint or as evidence against concerns that you were gonna basically, like I said, be the human torpedo to take out anything that Mueller brings to the Supreme Court,” Whitehouse said.

He and Kavanaugh continued to go back and forth, with Kavanaugh claiming he had discussed the case because he felt previous comments he had made about the decision had been mischaracterized.

If you read the opinion, all I’m doing is describing what the opinion said,” Kavanaugh said. Whitehouse gave up and moved on.

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