Trump's next Supreme Court pick could be asked to issue rulings that will determine the course of the Russia investigation.
With Justice Anthony Kennedy retiring, Trump is now in a position to nominate the next Supreme Court justice — and the person he chooses could ultimately shape the outcome of the Russia investigation.
It’s already an unprecedented scandal that Trump got to appoint Neil Gorsuch to fill the Supreme Court seat that Republicans stole from President Barack Obama.
It’s every bit as much of an unprecedented scandal that Trump got to appoint a justice to the highest court in the land while he was under investigation for potentially working with a hostile foreign power to win the presidency.
Trump is still under investigation now, as part of an ongoing criminal and counterintelligence probe, and his next pick for the Supreme Court could very well determine how the rest of that investigation plays out.
Legal scholars say it’s not only possible, but probable, that critical questions related to the Russia probe will end up before the Supreme Court.
For example, if special counsel Robert Mueller seeks to compel Trump’s testimony with a subpoena, the issue will almost certainly head to the Supreme Court for the justices to decide on.
“I think everybody would agree, regardless of their position, that it would ultimately be resolved by the Supreme Court,” said New York University law professor Ryan Goodman.
Citing a 1974 Supreme Court ruling in which then-President Richard Nixon was compelled to turn over tape recordings related to the Watergate investigation, Goodman said he believes a sitting president can, indeed, be compelled to testify.
Another issue that could come before the Supreme Court is the question of whether a sitting president can be indicted. While it’s unclear yet whether Mueller will seek to issue an indictment against Trump, the issue has been raised repeatedly in recent months.
Rudy Giuliani, Trump’s lead attorney in the Russia investigation, said in April that he believes the indictment or criminal prosecution of a sitting president would be unconstitutional — signaling that Trump’s legal team would likely try to send the issue to the Supreme Court to be decided on.
The Supreme Court could also be asked to rule on whether there are limits to the lawfulness of the use of presidential pardon power.
While it’s accepted that the president has wide authority to issue pardons, Trump is testing the boundaries of that authority by hinting that he may pardon people who are charged in the Russia investigation. He has even floated the idea of pardoning himself, saying he has the “absolute power” to do so if he chooses.
Giuliani has also expressed his belief that Trump has the authority to issue a self-pardon.
The question of whether it is lawful for a president to use the power of the pardon to obstruct an investigation could very well come before the Supreme Court in the next year. And if it does, the person nominated by Trump as the next Supreme Court justice will help decide on that ruling.
Perhaps the most contentious issue that could end up being fought out in the highest court is the question of whether Trump can fire Mueller.
While he can’t directly fire the special counsel, he could call on Deputy Attorney General Rod Rosenstein to do it for him. If Rosenstein refused and Trump fired him, the next person in the chain of command at the Justice Department is Solicitor General Noel Francisco.
As Vice News explained in April, “Francisco hasn’t addressed whether he’d fire Mueller, but he’s a Republican Trump appointee who’s already accused the FBI of overreaching.”
But far more troubling is the line of reasoning Francisco presented to the Supreme Court in a case heard earlier this year.
While the case did not pertain to the Russia probe, Francisco’s central argument was that the president should be able to fire officers of the court for virtually any reason at all — an argument that could serve as the foundation for a future attempt to fire Mueller.
“The president’s constitutional responsibility to faithfully execute the laws requires adequate authority to remove subordinate officers,” Francisco wrote in his Supreme Court brief, according to Vice.
That would include the special counsel, Vice noted.
Francisco also argued that Congress does not have the constitutional authority to place limits on the power of the president or any of his appointees to fire judges and officers of the court — like Mueller.
“[L]egal experts called his argument ‘very unusual,’ and even potentially ‘sinister,'” Vice reported. “They worry an analogous decision would give support to Rosenstein’s successor — who’s almost certainly Francisco himself — or Trump to fire the special counsel.”
We don’t know yet if these questions will arise — but if they do, there’s a high likelihood that they will end up being decided by the Supreme Court.
That presents a glaring and unprecedented conflict of interest for both Trump and the person he taps as the next Supreme Court justice.
There is nothing stopping Trump from seeking out and selecting a nominee who he knows will rule in his favor on these issues — and the Republican-led Congress has already proven that they’re not willing to stop such abuses of power.
Any Supreme Court ruling related to the Russia investigation would have the appearance of bias if it favors Trump, since there’s no way of knowing whether the Trump-appointed justice was acting out of good faith or out of loyalty to the president who selected him or her to serve on the court.
Trump has shown repeatedly that he will stop at nothing to obstruct the investigation — so what’s to stop him from using the highest court in America to do so?
Published with permission of The American Independent.