Brett kavanaugh
Credit: C-SPAN/Screengrab

If wavering red-state Democrats and supposed Republican Trump critics in the Senate needed a reason to vote against Kavanaugh, Trump’s legal team just gave them all they need:

A member of President Trump’s legal team said that if special counsel Robert Mueller subpoenas Trump to testify in the Russia investigation, it would spark a legal battle that would go to the Supreme Court

Lawyer Jay Sekulow told ABC News Chief Anchor George Stephanopoulos on “This Week” Sunday that the president’s legal team’s inclination at this point is not to have the president meet with Mueller.

If Mueller were to try to compel the president’s testimony, there would be a legal fight over the constitutionality of requiring such an act of a sitting president, Sekulow said.

Needless to say, a president under federal investigation for what could be the biggest scandal in American history cannot be allowed to appoint judges who would facilitate his obstructing justice by refusing a legal subpoena.

We also know that Trump nominee Brett Kavanaugh was likely picked not only for his likelihood to overturn Roe v Wade and his anti-worker stances–issues that Trump only marginally cares about–but crucially because of his extremist positions on executive authority. In particular, Kavanaugh has said that he believes the unanimous judgment forcing Nixon to turn over the Watergate tapes may have been wrongly decided, under the theory that the executive branch is so unitary that it does not need to submit to the judiciary’s subpoena power:

“But maybe Nixon was wrongly decided — heresy though it is to say so. Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official. That was a huge step with implications to this day that most people do not appreciate sufficiently…Maybe the tension of the time led to an erroneous decision,” Kavanaugh said in a transcript of the discussion that was published in the January-February 1999 issue of the Washington Lawyer.

So let’s be clear about what is going on here for perspective.

We have a president who just admitted today that his campaign team, including his own son, conspired with Russian spies to get dirt on his opponent. We have very strong circumstantial evidence that both he and his campaign knew about the theft and ongoing leaks of stolen materials in advance, and that the Russians demanded specific favors in exchange. We know that attempted criminal interference in our elections is ongoing and that the Trump administration is doing nothing discernible to stop it. We know that the criminal probe into possible conspiracy and obstruction of justice related to this crime has turned up dozens of indictments and multiple guilty pleas, with more almost certainly on the way. We have seen the president publicly and openly obstruct justice and admit to obstructing justice on the probe both on live television and on twitter.

We know that the probe would very much like to talk to the president, and that his legal team will do anything to prevent it, including pushing the case over the president’s right to refuse a subpoena all the way to the Supreme Court.

And we know that the president is attempting to appoint a justice to the Supreme Court who is known to be unusually hostile to the necessity of president obeying subpoena power.

Morally if not legally speaking, this too amounts to obstruction of justice. Regardless of his other stances on various hot button issues, this is all the reason any Senator needs to refuse to confirm Kavanaugh. Under no circumstances should a president as compromised as Trump have a Supreme Court justice confirmed prior to the completion of the probe, particularly one with Kavanaugh’s stated record on presidential accountability.

David Atkins

Follow David on Twitter @DavidOAtkins. David Atkins is a writer, activist and research professional living in Santa Barbara. He is a contributor to the Washington Monthly's Political Animal and president of The Pollux Group, a qualitative research firm.