Supreme Court nominee Brett Kavanaugh faces tough questions on the power of the presidency

  • President Donald Trump's Supreme Court nominee Brett Kavanaugh faced a grilling from senators on the Judiciary Committee Wednesday over his views on the president's executive authority.
  • Asked by the panel's top Democrat, Sen. Dianne Feinstein of California, whether a president is required to respond to a subpoena, Kavanaugh demurred, saying he won't answer the "hypothetical" question.
  • Democrats have criticized Kavanaugh as being deferential to presidential authority and expressed concern that he could protect Trump from any legal woes brought by special counsel Robert Mueller or prosecutors in New York.
U.S. Supreme Court nominee judge Brett Kavanaugh testifies during his Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, September 5, 2018. 
Chris Wattie | Reuters
U.S. Supreme Court nominee judge Brett Kavanaugh testifies during his Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, September 5, 2018. 

President Donald Trump's Supreme Court nominee Brett Kavanaugh faced a grilling from senators on the Judiciary Committee Wednesday over his views on the president's executive authority.

Asked by the panel's top Democrat, Sen. Dianne Feinstein of California, whether a president could be forced to respond to a subpoena, Kavanaugh demurred, saying he would not answer the "hypothetical" question.

Separately, Kavanaugh said Wednesday that the 1974 Supreme Court case that forced Nixon to turn over White House tapes in response to a subpoena was "one of the greatest moments in American judicial history." Two decades ago, Kavanaugh said the case may have been wrongly decided.

Kavanaugh, whom Trump named to replace the retired Justice Anthony Kennedy, could prove influential in future cases regarding the president, including any brought by special counsel Robert Mueller. Experts have said it is likely that Mueller will issue a subpoena to Trump in the course of his Russia probe if the president's attorneys do not agree to Mueller's terms for an interview.

Democrats on the Judiciary Committee also sought to get Kavanaugh on the record on the president's pardon authority. Sen. Patrick Leahy, D-Vt., asked Kavanaugh about whether Trump could pardon himself.

"The question of self-pardons is something I have never analyzed. It's a question I have not written about," Kavanaugh responded. "It's a question that, therefore, is a hypothetical that I can't begin to answer in this context as a sitting judge and nominee to the Supreme Court."

Kavanaugh also declined to discuss his view on whether a president can pardon someone in exchange for a promise or bribe, saying the question has been "litigated before."

Experts generally agree that the president faces few limits to his pardon authority, though there is some debate over whether he could pardon himself.

One of Trump's attorneys raised the possibility of pardoning Trump's ex-campaign chief Paul Manafort last year before Manafort was indicted for a number of bank and tax crimes, The New York Times reported in March. Manafort was convicted by a federal jury in Virginia last month and faces another trial in Washington, D.C.

The attorney who raised the possibility with Manafort's team, John Dowd, has denied raising the possibility of pardons and is no longer working at the White House.

Democrats have criticized Kavanaugh as being deferential to presidential authority and expressed concern that he could protect Trump from any legal woes brought by Mueller or prosecutors in New York.

Senate Minority Leader Chuck Schumer of New York has said it would be "unseemly" for the president to nominate a Supreme Court justice, saying the nominee would likely be a "juror in a case involving the president himself."

Kavanaugh, who worked on Kenneth Starr's investigation of President Bill Clinton in the 1990s, has said that he does not believe a president should be prosecuted while in office. That is also the official opinion of the Department of Justice.

But, pushing back on criticism that he would be a stooge for the president, he praised judicial independence Wednesday, noting that "no one is above the law."

The comment, however, didn't seem to win Democrats over.

"If Brett Kavanaugh truly believes the president isn't above the law, he should have said the president must comply with a subpoena," Feinstein said in a post on Twitter. "There's no reason Brett Kavanaugh couldn't have given a straight answer."

This is breaking news and will be updated.