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‘cory A. nooKeR sun. Anited States Senate July 20,2018 Judge Brett M. Kavanaugh United States Court of Appeals for the D.C. Circuit 333 Constitution Avenue, N.W, Washington, D.C, 20001 Dear Judge Kavanaugh: ‘Before the Senate can fuirly consider your nomination to be an Associate Justice, the American public must have a full understanding of the cases that you will potentially heat, and the cases ‘rom which you will properly recuse yourself, ‘Lam deeply concerned that President Trump has selected you in part because ofthe specific views you have expressed about presidential power and authority, which could affect hw the Supreme Court decides any future cases involving the Special Counsel's investigation. As you tre no doubt aware, I oppose your nomination based on these and other significant concems. But 1s a Senator and as a member of the Senate Judiciary Committe, Ihave a duty to not only Carol D. Leong & Robot Costa, Muclr Told Taps Aarne the Prasidem Reming Unde vestigation But Nor Cavey a Criminal Target, WASi.POSt, Ap. 3, 2018, lps: washington. compolies miler told-trmps-atomeys-the peste omais-undcr-avestiation baat curetya-erininalargel201 0403 1o7e2efD-el-Teacds3Seue2500514 sa bn * Eg, Donal J. Trump (@realDonald rnp), TwrtTeR une 4, 2018, 8:35 A.M), ptt com ‘really 1036161092014 7841 (*As has been stated by nomeroa egal shor | have the shsolte ight o PARDON msl bat why would do that whea Thave done nthing won”). Sg Donald). Tunp (@ren!DonaldTramp), TWITER Ge 4, 2018, 1001 AM, pete con ‘relBenalrupstts 10036379 16919820577 ("The applica ofthe Special Counsel iseally UNCONSTITUTIONAL), Eg, Donal J. Trump (@ealDonal Trump), TWIT (Apr: 11,2018, 6:0 A.M), pit. com ‘ealdoaldvanptats984083540742067713 (Mule i mast confit of al (xcept Rovenstin who signed FISA & Comey lotr)" 2c ale, Jeremy Disnond Tramp Slams FI for Rold of Hix Parana torn ‘Offi, CNN (Ap 9, 2018, pan om/20180409 polite dnp michal coed Ml (Why dn’ ste Mier? Wel think i's disgrace what's going on. We'l see what happens.” "jg, Donald. Tramp (@renIDonldTramp), TwrT¥= (Ape 10,2018, 408 AM), petite com ‘ncaldoaltrampatn983682953994456864(°A TOTAL WITCH HUNTII"); Donal. Tum (GreatDonaldTrump),THIT=ER (May 2,2018,7245 A.M), htpAwitercom/eaDonld Tran tatus 991644736995434736 Thee wos no Cllsion (it tsa Horn) and hee fno Obstuton of lus that sup ‘& tap); Donal J. Tramp (arelDonal Trump), Twit (May 20, 2018, 611 AM), hipster com ‘reaDovalTrumpstus898189366844889360 At what poi dos his sono be $0.00 000 Wieh Hn, capac (13 Angry and Henily Conte Democrats and two poope who have worked for Oba fr 8 years STOP?) rg dames Comey, Statement forte Record Before the Sense Select Commit on ltligence ane 8, 2018), hipe//warwneligene seat govt efauleldocunetslo come 6087 pa (1 aed that was ‘ot on anybody’ se politely and culd nat be counted on inthe radon poli sense, a stance sid wes Tibet intrest asthe President few moment tr the President sid, I ned loyalty expect aya”) se ‘alae Ellen Nekashins, Josh Davey & Devlin Bare, Trump Ased the Acting FBI Director How He Voted During Oval Ofce Meeing, Wasi, Post (an 23, 2018), bps wshingonposcom/world/atonl- Ssceuriyrumpaske the-ating-Pdeorbom be-vote-forduringova-ofice-mecting201801/5/2¢b50818- (073-1Te.tac-a991 367494 str hi. that he “would have quickly picked someone else” had he known that Attorney General Sessions ‘would reeuse himsel? Based on your prior statements and writings, it is apparent you have reached legal conclusions bout several ofthe issues listed above, For instance, in 1998, you paticipated in a panel discussion atthe Georgetown University Law Center on the future ofthe independent counsel statute." During the discussion the moderator asked the panel, “How many of you believe, as a ‘matter of aw, that a siting President cannot be indicted during the term of office?” In response to this query, your hand weat up, along with those of several other members of the panel, Next, the moderator asked you, “What i the implication, Brett, of your point if in facta siting President cannot be indicted during a term of office?” You replied: ‘The implication is that that Congress has to take responsibility for ‘overseeing the conduct of the President in the first instance. That's the role I believe the Framers envisioned, and that's the role that makes sense if you just look at the lst 20 years, It makes no sense at all fo have an independent counsel looking at the conduct of the President." Based on this statement and others it is clear that you believe thatthe Constitution does not allow fora sitting President to be cviminlly indicted or even investigate, More recently, on March 31,2016, you appeared atthe American Enterprise Institut to talk about the federal judiciary, the theory of originalism, the nomination of Chief Judge Merrick Garland to the Supreme Court, and other topics." During the discussion, an audience member asked you, “What is your opinion as to when the Supreme Court Justies should overrule stare decisis?" You stated: ‘Right, so I think Justices ofall stripes agree that stare decisis is ‘important, but not an inexorable command, It's nt inflexible, W's not absolute. And if t were, you would have some horrible decisions still on the books-—Plessy v. Ferguson, overruled in * Donald, Thump (@realDonalTramp), TWITTER (ane $,2018, 4:31 A.M), pewter cone DonakTrump sus/10039628H4352030720 (The Russian With Hort Hoax continues because Jf Sessions did’ me ho was going o reuse inset. woul ave quickly picked someone el. So mh ine and any wasted, 0 many lives ulna Sessions nw hts han met he ene Nn also): ee bee, Mia! 3 Schmit Jue Hischtel Davis, Tramp dated Sessions To Retain Cantal of assis Iguy Aer i Recs, NY. Des (May 29,2018), hpi ste om201805/9hpoiiestnump sessions dbsrcton fm Tramp, wh had ld ides that he node loyal overseing the ny, trad Mr Sessions nd tol hm be soeld evens recs] decison an unusual and potty insppropria request ME. Sessions esd") * independen Counsel Statue Future, SPAN (Fe. 19, 1998), hg wwe- spare vida? 1010S. independent counsel sate-futre. we "1 (emphasis added, © Federal Cours and Public Policy, C-SPAN (Mt 31,2016), p/w. span.g vio 40749 \seusionpoiicssupreme-cout a Brown v, Board, and many others. So the Court—iti appropriate ‘that the Court overrule precedent in certain citcumstances."” ‘Asa follow-up, the moderator asked you, “Can you think ofa case that deserves to be overturned?” You simply replied, “Yes.”"” The moderator then asked you whether you would ‘olunteer a case. At fist you demurred, but then you said, “Actually, I'm going to say one, ‘Morrison v. Olson”*—in which the Supreme Court found that the law authorizing the ‘appointment of an independent counsel to investigate and prosecute high-level government officials was constitutional. “I's been effectively overruled, but | would put the final nil in.” ‘You have also writen several times about presidental power and authority. In syrote article you ‘The Constitution ofthe United States contemplated, atleast by implication, what modern practice has shown tobe the inevitable result. The Framers this appeared to anticipate that a President ‘who commits serious wrongdoing should be impeached by the House and removed from office by the Senate—and then prosecuted thereafter. The Constitution itself seems to dictate, in addition, that congressional investigation must take place in lieu of eriminal investigation when the President isthe subject ‘of investigation, and that criminal prosecution can occur only after the President has left office." ‘The clear import of your writings and statements is that you have already determined that sitting President cannot be criminally indicted, or even be investigated. a "ta on via on 2" Bratt M, Kavanaugh, The Presiden andthe independent Comte, 8 Ge0.LJ.2133,2158 (1998) (emphasis ded); eas, a 2139 (Thus a5 dhe Constr suggests, the decision about the President wail be tice should be made wheal eet ation pital omens in or caus should be made-—in the Congress ‘ofthe United States.” (emphasi de); Bret Ml. Kavanaugh partion of Pavers Dring he Fart Fourth Dresden and Bayond 99 NA L- REV. 1454, 1461-62 & 0.38 2009) (The intent ad tril of siting Pratt mens wrlerple he esera prveren, endeving it ial anu ith eet In ether the international or dames nna. Ifthe President doc somthing dara the impeachment proves lable No sive poser, judge oe uy shold be able accomplish what the Conttaton avin othe Congres... Insoe, the Canin extablishes a lear mechanism fo dtr executive mafesance, we should at urn ating Preside with clu, criminal isesiations, or eriminlprsecutons. tik he Temporary deer ls shoud excuse the resign rom depositions or questioning in civ itgon a nina investigations” npharis added) Bret M, Kavanaugh & Robert. Bittan, Iden fan Br-Presdet, ‘Wasi Post, Aug 3, 1999, tA12, ofa of hp juste orgupcanesuplad/20 1807 Kavanaughvndcmentof ant Presiden Washington-Pos 999 pal (‘During the peace rd, the president's congressional supporters and foes agreed—cansstem with he Contin wich appears to preclude Dncimen fa siting president the goverment should consider indicting Bil Clinton after he eaves os” (enpasis added), 4 ‘To be clear, the reason Tam requesting your recusal isnot that you have expressed particular substantive views on legal issues. Rather, the need for your recusal is prounded ina reasonable ‘concern that President Trump has nominated you to serve on the Supreme Court at leat partly because you have expressed these particular views—which could affect the Supreme Court's disposition of a case arising from the Special Counsel's investigation as it pertains to President Trump or his associates. Ths is @ unique situation: President Trump could effectively be ‘choosing his own judge, contrary to basie principles ofthe rule of law. Your recusal would «eliminate that possibility Given that you are President Trump's nominee to the Supreme Court, that he is subject ofa ‘criminal investigation, tht he has demanded “loyalty” of a number of top law enforcement officials, that you have repeatedly communicated legal opinions that a sitting President cannot be ‘criminally indicted or investigated, that issues related tothe investigation may end up before the ‘Court, and that President Trump and his team understand how your expressed views could affect the outcome of such cases ifyou were confirmed, I request that you provide the Senate with a letter pledging your recusal from any case that pertains tothe Special Counsel's investigation or ‘that otherwise may immediately impact the President and his associates asi relates to the ‘ongoing criminal investigation. Thank you for your altention to this important matter. Sincerely, Cory A. Booker United States Senator