By all reports, Judge Brett Kavanaugh, who President Trump has nominated to the Supreme Court, is exceptionally bright, has a prodigious work ethic and is well-regarded by his colleagues as having a most collegial temperament. But he should not be confirmed as a justice.
There are many concerning aspects to what we already know about Kavanaugh’s professional background and record of jurisprudence. These will be further elucidated as the vetting process goes forward. But whatever more we learn about this judge, we know one thing now that should make this nomination a non-starter: it is the fruit of the poisonous tree and therefore also toxic.
In the law, the ‘fruit of the poisonous tree’ doctrine stands for the proposition that evidence produced as a result of illegal law enforcement activity is inadmissible at trial. There are exceptions to the doctrine, but the animating idea is that if the source of the evidence or the evidence itself is tainted, then any evidence obtained therefrom is tainted as well.
I use the expression metaphorically. Here, if the person lawfully authorized to make the nomination has obtained his position by illegal action, then the nomination itself would seem to lack legitimacy. We know that Mr. Trump is under investigation for obstructing justice, conspiring with a foreign foe to rig our national election in his favor, and – possibly – other serious crimes. Unless and until the Special Counsel’s report is completed, made public and acted upon by Congress, the president’s legitimacy as president is very much in doubt.
At the end of last week, the Deputy Attorney General announced an Indictment against twelve Russians charging them with Conspiracy to Commit an Offense against the United States. Given the specific factual allegations contained in the Indictment, it is not a reach to think that a future Indictment could name the president as a co-conspirator. A Department of Justice memorandum written during the Nixon era concluded that presidents may not be indicted during their tenure in office, but the proposition has never been ruled on by the courts. The Special Counsel may decide to litigate the issue, or he may decide to side-step it by naming the president as an unindicted co-conspirator. Perhaps, at the end of the day, the facts adduced will exonerate the president altogether; but information currently in the public domain strongly suggests otherwise.
If the Special Counsel were to name Trump an unindicted co-conspirator, impeachment by the House should follow. A Senate trial as to the president’s guilt or innocence would resolve the matter. But if, as the American people have ever-more reason to believe, the president was in cahoots with Russia, obstructed justice or otherwise broke the law, his presidency is a poisonous tree and Judge Kavanaugh’s nomination is the fruit thereof.
Indeed, if Trump is shown to be an illegitimate president, then logic, a sense of justice, and concerns for basic fairness would seem to require that every executive order and action taken under his direction be erased from the books. But we don’t have a constitutional roadmap setting forth a remedy, and we’ve never faced this bizarre situation before. Our founding fathers can be forgiven for not anticipating this truly incredible scenario.
As a practical matter, the relief as to most presidential actions will have to be prospective and undertaken at the ballot box. But the nomination of an Associate Justice to the Supreme Court is a life-time appointment to the highest court in the land, one from which there is no appeal. For that reason, it is in a class by itself. We can’t have a “do-over” on the nomination of Justice Gorsuch, but until we know the extent – if any – of the president’s complicity in Russia’s hacking of the 2016 election, the Senate can – and should – put the brakes on Judge Kavanaugh’s nomination.