Testimony: Kavanaugh would let “a cancer on the presidency” grow unchecked
On September 4, Fred Guttenberg, a passionate and public gun control advocate since the death of his 14-year-old daughter, Jamie in the Parkland school shooting, tried but failed to shake the hand of Supreme Court nominee Brett Kavanaugh during a break in the confirmation hearing. The White House says security intervened. AP

WASHINGTON—It’s a famous phrase from 45 years ago – “a cancer on the presidency.” And John Dean, the man who first uttered it, now applies it to Donald Trump.

But, Dean said, it’s a different type of cancer now: Not just a Nixonian cover-up of criminal misdeeds, but a view of the presidency, by Trump and especially by his U.S. Supreme Court nominee, federal appellate judge Brett Kavanaugh, that would let such cover-ups go unchecked.

That’s because, unlike Richard Nixon, the current Republican president does not respect the rule of law, Dean adds. And Trump’s nominee, Kavanaugh, vocally and strongly endorses a right-wing theory that puts all power over every facet of government into the presidency alone.

Dean, of course, had been Richard Nixon’s White House Counsel for three years when, on Jan. 21, 1973, he sat Nixon down in the Oval Office and used the “cancer” phrase to describe the Watergate cover-up, including his own role in it, and its threat to Nixon’s presidency.

John Dean | AP

This time, Dean, testifying before the Senate Judiciary Committee on September 7, the fourth and final day of panel hearings on Trump’s nomination of Kavanaugh, agreed when Sen. Richard Blumenthal, D-Conn., repeated the words.

Dean, a former attorney and now author of books on presidential power and presidential administration crimes, was one of a stream of public witnesses that day. As might be expected, GOP-named witnesses lauded Kavanaugh’s personal qualities and his intellect, without mentioning his anti-worker, pro-business and anti-regulation rulings. And they soft-pedaled Kavanaugh’s views of presidential power.

Meanwhile, the Democratic-named witnesses, including the only unionist – Oklahoma City Federation of Teachers (AFT) member Melissa Smith – Aalayah Eastmond, a survivor of the Valentine’s Day gun massacre at Marjory Stoneman Douglas High School, Congressional Black Caucus Chairman Rep. Cedric Redmond, D-La., and Dean, found various reasons to urge senators to reject the judge.

Their reasons ranged from Kavanaugh putting the rights of gun owners over the rights of students to be safe in school – Eastmond’s point – to Kavanaugh’s opposition to workers’ rights (Smith) and civil rights (Richmond) to his votes to overturn 75 federal rules while saying judges, not agencies, should decide issues such as whether we breathe clean air. And judges do so when business complains, but not when the public does, the witnesses said. They toss the public out the courthouse door, instead.

The witnesses also denounced Kavanaugh’s view of presidential power. That was the point from several law professors, and from Dean. He responded to questions from Blumenthal, a former 5-term state attorney general, who repeated the “cancer on the presidency” quote.

“There is now arguably a cancer on the presidency that is as malignant and as metastasizing as there was then,” Blumenthal said, comparing Trump’s actions to the Watergate cover-up. “Correct?” “Yes, I would agree with that,” Dean replied.

“The system is important to those who want to rely on it,” Dean later elaborated. That system, he said, included the courts, Watergate Special Prosecutor Leon Jaworski and his staff, witnesses who told the truth – and revealed Nixon’s taping system – and ultimately, Congress.

The system also included, though neither Dean nor Blumenthal said so, the free press, led by the Washington Post, which led the way in uncovering Nixon’s abuses of power. Trump has spent much of his term trashing and threatening the press. So have his supporters. Nixon threatened the Post in particular but never carried out those threats.

The system even included – to some extent — Richard Nixon, Dean told Blumenthal. Not Trump.

One factor that led Nixon to resign, Dean said, was congressional Republican leaders – Sens. Hugh Scott of Pennsylvania and Barry Goldwater of Arizona and House Minority Leader John Rhodes of Arizona – telling Nixon in August 1974 he would be impeached and convicted.

They acted after the “smoking gun” tape showed Nixon drove the Watergate cover-up. Had the tape not been revealed, Nixon might have stayed and U.S. history would have drastically changed, Dean said. But there was a second reason Nixon left, Dean said.

“Even more basically, I think the man (Nixon) at his core, had a respect for the rule of law. That’s one of the differences I find today. With Mr. Trump, the reason I don’t think he would resign is that he could care less about the rule of law.”

Indeed, Trump and Kavanaugh – the president in his tweets and statements and Kavanaugh in his appellate court rulings and other writings – favor an “unitary executive” theory of the presidency, Dean said. That theory, pushed by the late Justice Antonin Scalia and the right-wing Federalist Society, would give a president virtually unlimited power.

After consulting with constitutional scholars he has worked with in writing his books, that theory and that threat is what brought Dean to D.C. to testify against Kavanaugh, he said.

“If Judge Kavanaugh joins the court, it will be the most presidential powers-friendly Supreme Court in the modern era. Republicans and conservatives, only a few years ago, fought the expansion of presidential powers and executive powers. That’s no longer true.”

“Judge Kavanaugh as a very broad view of presidential power. He would have the Congress immunize a sitting president from both civil and criminal liability,” even in cases, Dean said – using Trump’s own quote – if Trump shot someone down in cold blood in the middle of New York’s Fifth Avenue.

“And it’s not clear to me, listening to the prior testimony” by Kavanaugh “that he really believes U.S. vs Nixon” – the 1974 Watergate tapes case – “was rightly decided.” After all, Dean noted, Kavanaugh called it one of his four most-important Supreme Court cases, without saying which way he would vote.

Whether the testimony from Dean, Richmond, the law professors, Smith, Eastmond or the pro-Kavanaugh witnesses changed any senatorial minds is unlikely. Ditto for the weeks of mass protests inside and outside the Judiciary Committee hearing room against Kavanaugh, and Trump.

Kavanaugh foes, including the AFL-CIO, the Leadership Conference on Civil and Human Rights, the NAACP and other progressive groups, have little time left to lobby senators. Committee Chairman Charles Grassley, R-Iowa, has said he wants the panel, which has a 1-vote GOP majority, to vote on Kavanaugh by September 13, but panel Democrats are entitled to seek a 1-week delay. And Senate Majority Leader Mitch McConnell is now pushing for a final vote by September 27, four days before the High Court starts its new term on October 1.


CONTRIBUTOR

Mark Gruenberg
Mark Gruenberg

Mark Gruenberg is head of the Washington, D.C., bureau of People's World. He is also the editor of Press Associates Inc. (PAI), a union news service in Washington, D.C. that he has headed since 1999. Previously, he worked as Washington correspondent for the Ottaway News Service, as Port Jervis bureau chief for the Middletown, NY Times Herald Record, and as a researcher and writer for Congressional Quarterly. Mark obtained his BA in public policy from the University of Chicago and worked as the University of Chicago correspondent for the Chicago Daily News.

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