Even without protesters and senators rocking the floor, Supreme Court nominee Brett Kavanaugh's ongoing confirmation hearing was sure to be complicated. On Wednesday, the second day of Kavanaugh's confirmation hearing, Sen. Dianne Feinstein (D-Calif.) asked the nominee whether "a sitting president [would] be required to respond to a subpoena." Kavanaugh's views on the issue have been hotly debated as legal troubles swirl around President Trump.
Kavanaugh, pleading the "Justice Ginsburg principle," said he couldn't answer Feinstein's "hypothetical question." But he did discuss the U.S. v Nixon ruling, saying the Supreme Court — including former President Richard Nixon's own nominee to the bench — unanimously mandated that Nixon release his secret recordings specifically "in response to a criminal trial subpoena." It's "an important precedent of the Supreme Court," Kavanaugh said, but as a "sitting judge and a nominee," he couldn't say how it would apply in the future.
Sen. Feinstein: "Can a sitting president be required to respond to a subpoena?"
Supreme Court nominee Kavanaugh: "That's a hypothetical question ... As a matter of the canons of judicial independence, I can't give you an answer on that hypothetical question." pic.twitter.com/tQp1VHu4GT
— NBC News (@NBCNews) September 5, 2018
With Special Counsel Robert Mueller currently investigating the Trump campaign and some top Trump associates, several legal experts have questioned whether a sitting president could be subjected to a subpoena. In the past, at least, Kavanaugh has opined that Nixon "may have been wrongly decided," but while working on former President Bill Clinton's investigation in 1995, Kavanaugh wrote it would be "weak" to protect a president from testifying to a grand jury. He seemingly reversed his opinion again in 2009, writing in a Minnesota Law Review article that "the president should be excused" from "burdens" like criminal investigations. Kathryn Krawczyk