A former boss and political ally of Brett Kavanaugh, pushing back on a mounting rallying cry of Senate Democrats, said it is “preposterous” to suggest that the Supreme Court nominee should recuse himself from cases involving Robert Mueller’s investigation into President Trump’s ties to Russia, because there is no evidence Kavanaugh and the president made a “deal” about the issue.
“I don’t see the basis for a recusal,” Timothy Flanigan, who served as deputy White House counsel during the early years of the George W. Bush administration, said in an interview for the Yahoo News podcast “Skullduggery.”
When it was pointed out that Trump had nominated Kavanaugh while under investigation by Mueller — and facing a potential subpoena for his testimony — Flanigan replied, “I’m not sure I see the relevance of that.” He added that “unless there was a credible suggestion that … there’s some kind of deal that Brett would vote against [upholding a subpoena to the president], I frankly find that preposterous.”
Since President Trump announced Kavanaugh’s nomination Monday night, a number of Democrats have demanded that Kavanaugh commit to recusing himself from any issues involving the Mueller probe that could end up before the court. They have argued that it would be a conflict of interest for him to rule on issues such as a potential subpoena for Trump’s testimony or whether the president can be indicted — and that his vote on a divided court could be decisive, ultimately determining the fate of Trump’s presidency.
“I don’t think he should be on the court, and you can be sure that me and my colleagues on the Democratic side are going to be asking if he will recuse himself, should he be confirmed,” Sen. Cory Booker, D-N.J., told reporters.
Flanigan pointed out that the Supreme Court justice he clerked for — the late Chief Justice Warren Burger — was appointed by President Richard Nixon and did not recuse himself when the case involving Watergate special prosecutor Leon Jaworski’s subpoena for the White House tapes came before the court. In fact, Flanigan noted, Burger wrote the majority opinion upholding Jaworski’s subpoena — a decision that led to Nixon’s resignation.
Nixon nominated Burger to the court in 1969, four years before the first Watergate special prosecutor, Archibald Cox, was appointed and the investigation began to focus on the president’s role in a cover-up.
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As deputy White House counsel during Bush’s first term, Flanigan was a direct supervisor of Kavanaugh, who was then a young lawyer in the White House counsel’s office. During that time, Flanigan said, Kavanaugh primarily worked on judicial selections and handled matters involving congressional subpoenas for White House documents. While Kavanaugh was unquestionably conservative, Flanigan said, he was a thoughtful lawyer open to accommodation, distinguishing him from the confrontational stands often taken by David Addington, the hardline executive power advocate who served as Vice President Dick Cheney’s chief counsel.
Democrats and liberal advocacy groups, who are gearing up to fight the nomination, have said they intend to pore over hundreds of thousands of pages of documents from Kavanaugh’s White House years. Among other things, they’re looking for evidence that as a lawyer in the counsel’s office and later as White House staff secretary, Kavanaugh may have played a role in such controversial policies as the approval of enhanced interrogation techniques of terror suspects, the indefinite detention of detainees at Guantanamo and warrantless wiretapping. But it could be a futile search, according to Flanigan.
“I don’t recall Brett having any involvement in those issues relating to the war on terror,” Flanigan said. “He was helping on other matters that were related to the aftermath of 9/11, but he was not central to the discussions regarding the war on terror or enhanced interrogation and so forth. He may have had, at some point, some role in reviewing someone else’s work in that regard, but try as I can, I can’t recall him having a central role there.”
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