One of the more compelling arguments against Donald Trump being able to fill the upcoming Supreme Court vacancy is the president’s possible conflict of interest: Trump is currently the subject of a criminal investigation, and there are key questions associated with the probe that the high court may soon adjudicate.
Sen. Cory Booker (D-N.J.), among others, has made a persuasive case that until the special counsel’s investigation into Trump has been resolved, the responsible course for the Senate would be to wait. The alternative would be to allow a president facing an ongoing federal probe to choose a justice who may decide his own legal fate.
I’ve been eager to hear the Republican response to the argument, and on CBS’s “Face the Nation” yesterday, Sen. Pat Toomey (R-Pa.) presented the GOP’s case.
“I think that is a ridiculous argument that is made as just an attempt to make way for their real position, which is that President Trump should never be able to confirm a vacancy.
“Look, I don’t remember hearing the Democrats making that argument when President Bill Clinton was in fact personally under investigation when a vacancy occurred.
“My understanding is that President Trump is not himself personally the subject of the investigation even. So, I think that is a non-argument. And we needn’t pay any attention to it.”
It was an interesting response — which Toomey likely prepared in advance — so let’s unpack it a bit.
First, when Bill Clinton filled Supreme Court vacancies in his first term, the investigation at the time was into a small Whitewater land deal in which he lost money. Trump, meanwhile, is being investigated for obstruction of justice and for possibly having cooperated with a foreign adversary during its attack against the United States.
If Pat Toomey sees these two as roughly parallel, I’d suggest he take another look.
Second, the Pennsylvania Republican said it’s his “understanding” that Trump is not the subject of Special Counsel Robert Mueller’s investigation. Again, Toomey apparently isn’t paying close enough attention to current events: Mueller notified the president’s lawyers months ago that Trump is, in fact, a subject of the investigation.
Given the fact that he’s mistaken about this key detail, perhaps Toomey might want to reconsider his position on the issue?
As for this being “a non-argument” that Americans “needn’t pay any attention to,” I was glad to see the New York Times publish this piece from Paul Schiff Berman. a professor at George Washington University Law School, which made the opposite case. Berman explained, “People under the cloud of investigation do not get to pick the judges who may preside over their cases.”
Indeed, legal experts are already debating several knotty constitutional questions that involve the president and may one day soon have to be decided by the court. Can the president pardon himself or others specifically to extricate himself from criminal investigation? Can the president be compelled to testify before a grand jury? Can a sitting president be criminally indicted?
Did the appointment of the special counsel somehow violate the Appointments Clause of the Constitution, as some conservatives implausibly insist? Can a president ever obstruct justice? What is the proper legal remedy for Mr. Trump’s repeated violations of the Emoluments Clause? It is no exaggeration to say that never before has the selection of a Supreme Court nominee been so thoroughly compromised by the president’s profound personal interest in appointing a judge he can count on to protect him.
For more along these lines, I hope everyone saw Rachel’s interview on Friday with Cory Booker.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."