The Senate Judiciary Committee on Sept. 28 advanced to the Senate floor for a vote the nomination of Judge Brett Kavanaugh to the Supreme Court.
But, retiring Sen. Jeff Flake (R-Ariz.) did so conditionally, saying he would only support Kavanaugh on the floor if the FBI is ordered by President Donald Trump to conduct another background check on Kavanaugh in a limited period of time no longer than a week.
The Committee then issued a statement saying it “will request that the administration instruct the FBI to conduct a supplemental FBI background investigation with respect to the nomination of Judge Brett Kavanaugh to be an Associate Justice on the Supreme Court. The supplemental FBI background investigation would be limited to current credible allegations against the nominee and must be completed no later than one week from today.”
And then President Donald Trump ordered the additional background investigation, issuing a statement saying, “I’ve ordered the FBI to conduct a supplemental investigation to update Judge Kavanaugh’s file. As the Senate has requested, this update must be limited in scope and completed in less than one week.”
Senate Judiciary Committee Democrats have already staked out this position at the Sept. 27 hearing. In questioning Kavanaugh, Sen. Dick Durbin (D-Ill.) told Kavanaugh to “turn to your left in the front row to Don McGahn, counsel to President Donald Trump, ask him to suspend this hearing and nomination process until the FBI completes its investigation of the charges made by Dr. Ford and others and goes to bring the witnesses forward and provides that information to this hearing.”
Here, the Senate Judiciary Committee, Senate Democrats and Flake are all inadvertently admitting that President Donald Trump under Article II of the Constitution — which clearly states “The executive power shall be vested in a president of the United States of America” — unequivocally has the power to order and conclude FBI investigations, Americans for Limited Government President Rick Manning noted in a statement.
Manning said, “Remember, the FBI announced that they were not going to investigate the unsubstantiated and uncorroborated claims of Christine Blasey Ford beyond including them in the briefing file. The potential re-opening of the investigation for a short time period by order of the President of the United States shows everyone that Donald Trump has the power to open and determine the length of any investigation by the DOJ, FBI or any of their designees. Today’s Pyrrhic win for the Democrats ends, once and for all, any discussion of whether the President had the authority to fire James Comey and whether his alleged comments on the Mike Flynn investigation were legal — the new Christine Ford standard shows that they were.”
Meaning, Trump had the power to fire former FBI Director James Comey for any reason or no reason at all. Or to tell Comey to lay off on any potential investigation of former National Security Advisor Michael Flynn, for that matter.
The primary reason Special Counsel Robert Mueller was appointed by Deputy Attorney General Rod Rosenstein was not to investigate Russian interference in the election, but besides that to look at the Comey firing as some sort of obstruction of justice even though Rosenstein had recommended the firing and even though the President has that power under Article II of the Constitution to conclude investigations and decide who runs the FBI.
Now, with the demands that President Trump revisit the FBI investigation of Kavanaugh, the entire rationale by Rosenstein for the investigation falls apart at the seams. If the President has prosecutorial discretion to order an investigation into Kavanaugh, then he has prosecutorial discretion in any and all investigations.
Either the President has the executive power under the Constitution or else a creature of Congress, the special counsel or the FBI Director, can be more powerful than the President. It’s an unconstitutional absurdity that the framers could have never envisioned.
In the meantime, the FBI background investigation will move forward and in a few short days, the Senate will vote on Kavanaugh. Perhaps it will dawn on Senate Democrats that in their bid to stop Kavanaugh that they inadvertently opened the doors to what will be Trump’s primary defense — that he has the power to order and conclude such investigations.
Naturally, they’re already complaining about the length and scope of the investigation. Tough. You get what you get.
The lesson to Senate Democrats is to be careful what you wish for.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government.
