He [George Washington] may have had a bad past. Who knows?
—DONALD TRUMP
TRUMP KNEW HE NEEDED THE COURTS ON HIS SIDE TO blunt, if not stop, the Mueller investigation and any future congressional investigations should the Democrats win control of the House (which they did in 2018). If he could pack the courts, and in particular the United States Supreme Court, with judges who believed philosophically in virtually unlimited presidential power (“unitary executive theory”) and who believed in presidential immunity from investigations, he could avoid investigations, avoid complying with subpoenas, and ultimately get himself off the hook for wrongdoing.
The ghost of Richard Nixon has always loomed large over Trump. The United States v. Nixon case was a turning point in the Watergate scandal, and if the Supreme Court had not ordered Nixon to turn over the White House tapes to the special prosecutor, Nixon almost certainly would have survived the scandal and served the rest of his term. Trump did not want to go down the road that Nixon did; this explains much of his obsession with trying to silence the Washington Post, which had blown the lid off Watergate. Nixon lost in the Supreme Court and as a result lost his presidency. But for President Ford’s pardon, he might have gone to jail. Trump was determined not to lose the Supreme Court.
Trump was already blessed with a Supreme Court much more conservative than the Supreme Court of the 1970s, and furthermore, Trump hoped to appoint “loyal” justices of his own. Squarely on his side in confirming new judges and justices were Republicans in the Senate, and an army of conservative media pundits, provided the judges Trump appointed weren’t just strong believers in executive power (unitary executive theory) but also conservative on social issues such as abortion, sympathetic to business, and committed to states’ rights.
When Justice Antonin Scalia died in early 2016, Mitch McConnell, the Senate majority leader, set it up for the winner of the 2016 presidential election to choose the next Supreme Court justice by vowing not to allow the Senate to vote on President Barack Obama’s nomination of Judge Merrick Garland.
When the Republicans kept control of the Senate and Trump was elected, the Republicans had clear sailing to swing the court. Trump on January 31, 2017, named Neil Gorsuch, a federal appeals court judge based in Denver. Democrats, still fuming over the failure of the Republicans to take up the nomination of Merrick Garland, were enraged at Trump’s more conservative choice. But Republicans had the votes and Gorsuch was confirmed. Thus far, Justice Gorsuch has sided with the Trump administration in most executive power cases, although it’s not certain how he would rule if a case related to a congressional subpoena or an impeachment investigation were to come before the court.
Then in June 2018, Justice Anthony Kennedy announced he was retiring. Kennedy was the critical swing vote on the court.
On July 8, 2018, Trump nominated Brett Kavanaugh, a judge of the United States Court of Appeals for the District of Columbia Circuit.
He is “one of the finest and sharpest legal minds in our time,” said Trump, who with a straight face said that Kavanaugh, if appointed, would put aside his political views and apply the Constitution “as written.”
Kavanaugh’s views on executive power were in line with Trump’s. Even though he had been a top lawyer for Ken Starr in his investigation of President Bill Clinton, Kavanaugh’s years as a White House lawyer and then staff secretary for President Bush had convinced Kavanaugh that in fact the president should almost never be investigated for anything while in office. Kavanaugh not only changed his mind on presidential immunity but wrote it down in a detailed 2009 article in the Minnesota Law Review. Although Kavanaugh never expressly called for United States v. Nixon to be overruled, there were strong hints that he might severely narrow its scope if a similar case were to come before the court involving President Trump.
Kavanaugh’s publication record made him the perfect court pick. Whether Mueller were to seek White House communications (a repeat of the United States v. Nixon showdown over the White House tapes in 1974), or Congress were to issue subpoenas to administration officials (in 2019 dozens of such subpoenas were issued, most of them ignored), or the New York attorney general were to try to indict Trump while he was in office, Trump needed all the help he could get on the court. Large chunks of a future court opinion—or at least the opinion that Trump wanted—were already published, with Kavanaugh’s name on them in the Minnesota Law Review. Or so Trump surely thought when he nominated Kavanaugh.
Then the plan almost fell apart. In September 2018, before his confirmation hearing, several women said that they had been sexually assaulted by Kavanaugh decades earlier when he was in high school and during his first year of college at Yale. One, Christine Blasey Ford, told the Washington Post that when she was fifteen and he was seventeen, Kavanaugh had assaulted her at a party. She said Kavanaugh pinned her on the bed, tried to take off her clothes, and covered her mouth to keep her from screaming.
“I thought he might inadvertently kill me,” she said.
At the time of the assault, Blasey Ford was a student at the Holton-Arms School, a private girls’ prep school in Bethesda, Maryland. Kavanaugh was a student at Georgetown Prep, an all-boys Catholic prep school where traditional Jesuit values apparently were not always observed—Kavanaugh’s classmate and best friend Mark Judge later wrote a book about their high school years titled Wasted.
Blasey Ford testified for several hours before the Senate Judiciary Committee, and many observers believed her to be credible. She told the panel, “I am here today not because I want to be. I am terrified. I am here because I believe it is my civic duty to tell you what happened to me while Brett Kavanaugh and I were in high school.”
Further allegations against Kavanaugh were brought by two other women, Deborah Ramirez (a Yale classmate) and Julie Swetnick (whose allegations also involved parties during Kavanaugh’s years at Georgetown Prep when she was in high school).
At this point the appropriate course of action for the White House was to do what the George H. W. Bush White House had done when allegations were made against Judge Clarence Thomas during his confirmation hearing in 1991. That was to have the FBI thoroughly investigate the allegations so a report could be made to the Senate before a vote on the nomination. Although the Trump White House eventually relented and asked the FBI to conduct the investigation, it took weeks to begin because the White House, its allies in the media, and several senators, most notably Lindsey Graham, decried the need for an investigation claiming that this was yet another “witch hunt.”
Whether it was Trump’s hatred of FBI investigations or his desire to ram through the Kavanaugh nomination at any cost, this stubborn refusal even to investigate made the situation even worse. In the end the FBI investigation took less than a week, a fraction of the time spent arguing about whether there should be an investigation.
Kavanaugh’s response to Blasey Ford’s story was angry and defiant. He blamed the Democrats.
“You sowed the wind for decades to come,” he said. “I fear that the whole country will reap the whirlwind.”
His face showing his rage, he told the committee, “This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election. Fear that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons, and millions of dollars of money from outside left-wing opposition groups.”
If Trump had ever considered pulling the nomination, this testimony no doubt made Kavanaugh an even more attractive Supreme Court justice in Trump’s eyes. Having been on the receiving end of an investigation—or “witch hunt”—Kavanaugh would be virtually certain to sympathize with Trump in his own predicament. And Kavanaugh had even mentioned in his testimony Trump’s favorite targets of denunciation—the Clintons! He was the perfect Trump Supreme Court justice.
This was fantasy straight out of the Salem witch trials. When accused of something, simply turn the tables and accuse your accuser, someone who supports your accuser, or someone else.
Kavanaugh’s speech got rave reviews in the right-wing media. One conservative pundit with no hint of irony even called it a “Churchillian” moment.
Senator Lindsey Graham bolstered Kavanaugh’s absurd claim of a left-wing conspiracy when he said that the Democratic handling of Blasey Ford’s claims was an “unethical sham” and “the most despicable thing I have seen in my time in politics.”
Whether or not one believed Blasey Ford’s recollection of events thirty-five years earlier, or of the identity of her attacker at that party, it is absurd to attack a witness in this manner. Even a vote to confirm Kavanaugh in the face of this factual uncertainty did not require such a denunciation of Blasey Ford or of the Democrats who wanted to give her testimony a fair hearing. But for Trump and Lindsey Graham, the battle was to be won at all costs, even if that required denunciation of the confirmation process itself and of anyone who participated in it.
After the confirmation of Justice Kavanaugh, Trump continued to do everything possible to obstruct the Mueller investigation and now is doing everything possible to obstruct subsequent investigations by Congress, including the House Judiciary Committee investigation that by 2019 had clearly become an impeachment investigation.
The Trump administration thus far has ignored many of the House of Representatives’ subpoenas, refusing to turn over the president’s tax returns, the redacted portions of the Mueller Report, and other critical information. If any cases related to those investigations ever reach the Supreme Court, Trump hopes that he has two new justices on his side.
One thing America learned from the Mueller investigation—and the Kavanaugh hearing—was not only how much Trump and his allies hated thorough investigations of credible evidence of wrongdoing, but the lengths that they were willing to go to stop an investigation—and to personally attack anyone who dared say that allegations of any sort should be taken seriously.