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How the Mueller probe could complicate Kavanaugh's confirmation

First Read is your briefing from "Meet the Press" and the NBC Political Unit on the day's most important political stories and why they matter.
by Chuck Todd, Mark Murray and Carrie Dann /
Image: US-POLITICS-JUSTICE-TRUMP
Supreme Court nominee Brett Kavanaugh speaks after the announcement of his nomination in the East Room of the White House on July 9.Mandel Ngan / AFP - Getty Images

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WASHINGTON — By making federal appeals court Judge Brett Kavanaugh his Supreme Court pick, President Donald Trump selected someone who already once secured votes from GOP swing Sens. Susan Collins, R-Maine, and Lisa Murkowski, R-Alaska (back in 2006). What’s more, key Democratic red-state senators like Joe Donnelly, D-Ind., Heidi Heitkamp, D-N.D., and Joe Manchin, D-W.V., released statements Monday saying they’d keep an open mind about Kavanaugh.

Add it all up and it’s very possible that, in the current 51-49 Senate, Kavanaugh could match the 54-45 confirmation vote that Neil Gorsuch got in 2017.

But there’s one significant wild card to Trump picking Kavanaugh: the Mueller probe.

And if there’s a big development in the investigation — we haven’t really had one since April, when the FBI raided Trump lawyer Michael Cohen’s offices — then Kavanaugh’s 2009 law review article could be an impediment to confirmation.

In the article, Kavanaugh argues that a sitting president shouldn’t be distracted by civil lawsuits or criminal investigations while in office. “Having seen first-hand how complex and difficult that job [of president] is, I believe it vital that the president be able to focus on his never-ending tasks with as few distractions as possible,” he wrote. “Looking back to the late 1990s, for example, the nation certainly would have been better off if President Clinton could have focused on Osama bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal-investigation offshoots.” And he called for Congress to consider passing a law to defer any civil lawsuit or criminal investigation against a president until after he leaves office.

Notably, Kavanaugh doesn’t pass constitutional judgment on this matter. “The result the Supreme Court reached in Clinton v. Jones — that presidents are not constitutionally entitled to deferral of civil suits — may well have been entirely correct; that is beyond the scope of this inquiry.” But he does make his personal opinion clear: “The indictment and trial of a sitting president, moreover, would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas. Such an outcome would ill serve the public interest, especially in times of financial or national security crisis.”

What’s especially striking about Kavanaugh’s opinion in that 2009 law review article is that it contradicts his work for Ken Starr, who investigated President Bill Clinton in the Whitewater/Lewinsky probes.

As we wrote after Justice Anthony Kennedy announced his retirement late last month, what makes this Supreme Court fight different from the ones during the Bush or Obama years is the Mueller probe. The president's 2016 campaign — and the president himself — is under investigation for its possible ties to Russian interests.

And if there's a significant development in the next month (another indictment, guilty plea, or battle over a subpoena), Democrats could argue that the president shouldn't be able to appoint a justice to the court who will probably have to rule on some aspect of the Mueller probe. And that becomes even more potentially explosive given Kavanaugh’s article in 2009.

Here’s what the swing GOP and Democratic senators said about Kavanaugh’s nomination

As mentioned above, here are the statements that key GOP and Democratic senators released last night on Kavanaugh’s nomination, per NBC’s Frank Thorp, Garrett Haake and Rebecca Shabad:

  • Susan Collins: “Judge Kavanaugh has impressive credentials and extensive experience, having served more than a decade on the D.C. Circuit Court of Appeals. I will conduct a careful, thorough vetting of the President’s nominee to the Supreme Court, as I have done with the five previous Supreme Court Justices whom I have considered.”
  • Lisa Murkowski: “I intend to review Judge Kavanaugh’s decisions on the bench and writings off the bench, and pay careful attention to his responses to questions posed by my colleagues on the Senate Judiciary Committee.”
  • Joe Donnelly: He said before the Kavanaugh pick that he declined an invitation to appear at last night’s White House announcement "so that I can meet first with the nominee in a setting where we can discuss his or her experience and perspectives."
  • Heidi Heitkamp (per a spokeswoman): “She has made clear — as she said to the president in person two weeks ago — that she considers fully vetting Supreme Court nominees one of the most important jobs of any U.S. senator, and she plans to fulfill that critical duty.”
  • Joe Manchin: “I will evaluate Judge Kavanaugh’s record, legal qualifications, judicial philosophy and particularly, his views on healthcare. The Supreme Court will ultimately decide if nearly 800,000 West Virginians with pre-existing conditions will lose their health care. This decision will directly impact almost 40% of my state, so I’m very interested in his position on protecting West Virginians with pre-existing conditions.”

Interest groups plan to spend millions on the confirmation fight

NBC’s Leigh Ann Caldwell: “The Charles Koch-backed organization Americans for Prosperity announced Monday that it will spend "seven figures" on grassroots organizing, paid media and door-to-to door canvassing in the ten states that Democrats are trying to defend in November. And other political interest groups are planning a barrage of campaign ads as well as on-the-ground grassroots activities. Among those Democrats bearing the brunt will be Sens. Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia.”

More: “Before Monday's announcement, those [Democrats] were already the targets of at least $1.4 million worth of advertising from the conservative Judicial Crisis Network, an umbrella organization pushing for the confirmation of Trump’s nominee. The ad says, ‘extremists will lie and attack the nominee. But don’t be fooled.’”

Trump continues to criticize NATO — in a harsher way than he’s ever criticized Vladimir Putin

Before embarking to Brussels, Belgium for the NATO conference, Trump fired off these tweets:

  • “Getting ready to leave for Europe. First meeting - NATO. The U.S. is spending many times more than any other country in order to protect them. Not fair to the U.S. taxpayer. On top of that we lose $151 Billion on Trade with the European Union. Charge us big Tariffs (& Barriers)!”
  • “NATO countries must pay MORE, the United States must pay LESS. Very Unfair!”

This NATO meeting has the potential to be a replay of that G-7 meeting in Canada — after which Trump criticized Canadian Prime Minister Justin Trudeau and refused to sign the joint communique.

“In the past, Europe did not doubt that U.S. interests and values were fundamentally aligned with theirs,” Daniel M. Price, an international economic adviser to President George W. Bush, tells the New York Times. “Now they wonder whether they can count on us in times of crisis without our first checking to see if they are current on their rent or royalty payments. The decline in confidence is palpable.”

And European Council President Donald Tusk said this, per the AP: “Dear America, appreciate your allies, after all you don’t have all that many.”

Another secret recording jolts the Cagle-vs.-Kemp gubernatorial runoff in Georgia

“Lt. Gov. Casey Cagle's campaign was already rocked last month by the release of a secretly recorded conversation in which Cagle said he backed what he called ‘bad public policy’ for political gain. Cagle's runoff opponent, Secretary of State Brian Kemp, released another snippet of that conversation Monday,” the AP writes. “In this 50-second piece, Cagle can be heard candidly discussing the GOP primary's sharp turn to the right, saying the five-man race came down to ‘who had the biggest gun, who had the biggest truck and who could be the craziest.’ Kemp said in a statement to the AP on Monday that the newly released recording ‘exposes Cagle's real opinion of Republican voters in Georgia.’”

The runoff is on July 24, and the winner faces Democrat Stacey Abrams.

Looking at the history of baseball’s All-Star Game in Washington D.C.

Finally, next week brings us Major League Baseball’s All-Star Game, which takes place in D.C. And writing for NBC Washington, Frederic Frommer looks at the history of the All-Star Game in the nation’s capital. “On a hot sticky July day in Washington 81 years ago, President Franklin D. Roosevelt made his way to the tiny ballpark two miles northeast of the White House, escaping a political storm of his own making. On his heels over his unpopular plan to ‘pack’ the U.S. Supreme Court with extra justices to overcome a court that had stymied some of his New Deal legislation, FDR found campaign-style adoration at the 1937 All-Star Game.”

“That afternoon marked the first time Washington hosted the All-Star Game, and it would do so again in 1956, 1962, and 1969, with presidents playing a central role in three of the four games. In July, the Midsummer Classic returns to DC for the first time in nearly a half-century. The White House has not yet said whether President Trump will throw out the first pitch on July 17. If so, he'd be continuing a summer tradition started by FDR, who died a year before Trump was born in 1946.”

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