IT’S BEEN CONFIRMED: A New Normal  

Guest column by Brad Molnar

It is kinda-sorta over. The confirmation of Judge Bret Kavanaugh has soared to a new record of low. President Trump nominated Bret Kavanaugh for Supreme Court Justice on 7/9/19. Chuck Schumer, the democratic boss of the U.S. Senate, responded that he’d oppose President Trump’s nomination “with "everything I've got" on 7/9/19.

This was the “strict constructionist” vs “the Constitution is a living and breathing document” drama that unfolds every time there is a judicial appointment. This time it was thinly disguised as concerns over allegations that a 17 year old boy had attempted to forcefully grope a 15 year old girl. Senator Jeff Flake (R) Arizona was correct when he said we needed a supplemental FBI investigation because the allegations/process had “split the nation apart”.

Now what?

When Dr. Ford was asked why she had not accepted the offer for the Senate Judiciary Committee to travel to California to take her testimony she looked at her attorney and said because she had not been “informed”. The attorney that received the invitation should be dis-barred if Fords answer is proven. If Ms. Ford lied about not being informed of the offer she should be charged with a felony. Taking action, or not taking action, sets the stage for the next confirmation hearing.

When Steve Daines was on the radio talk show Montana Talks I asked why Senator Feinstein should not be censured for withholding Dr. Ford’s allegations from the committee.  Daines answered that there would be an investigation into the letter being leaked.

Censure

The Constitution grants the right of expulsion (impeachment) to Congress. Censure is a congressional invention to fit between a simple rebuke and impeachment. Impeachment is constitutional and requires a super-majority of votes. A reprimand may be just a letter. Censure requires a simple majority. There are no legal ramifications to censure. Though the censured must give up their committee chair, if they have one, they can still vote. The censured must stand in shame in the well of the senate and listen as the censure is read aloud.

Not Our First Rodeo

Andrew Jackson was censured for unconstitutional activities when he refused to turn over federal banking records to the Senate.

Of the nine Senators that have been censured most did not seek re-election. Those that did were defeated.  First senator to be censured was Thomas Pickering (Federalist) for releasing confidential documents on the Senate floor. The second censure was Benjamin Tappan (D) for leaking a scheduled presidential address to the New York Evening Post.

At a minimum Senator Feinstein should be investigated for any collusion in the leaking of the papers of Doctor Ford, just like Tappan was. Senator Feinstein has not denied that she withheld those papers until they would cause the most damage to the national fabric. Had they been disclosed, in confidentially, to the senate committee twenty days earlier the FBI supplemental investigation would not have been brinksmanship. Feinstein’s only interest should have been truth. That is “Action Unbecoming of a Senator” a censurable offense.

Senator Cory Booker (D) announced he would accept the consequences of releasing Kavanaugh’s confidential emails and then released them on the senate floor. Unfortunately there probably are not 60 votes to expel Booker. If not, why not? There is no question of guilt, intent, or process. It is Pickering all over again so, censure at a minimum?.

The rule in question: Any Senator of employee of the Senate who shall disclose the secret or confidential business or proceedings of the Senate, including the business of the committees, subcommittees and offices of the Senate, shall be liable if a Senator - to suffer expulsion from the body.

Never Ending Road

House Minority Leader Nancy Pelosi has filed a Freedom of Information request to see if President Trump or Republican leadership improperly influenced the FBI in the supplemental investigation. If the FBI indicated witness tampering by pressuring Dr. Fords friend, Monica McLean, is included, then good deal.

Congressman Jerrold Nadler (D) New York has promised a new investigation into Kavanaugh if Democrats win the House. Nadler will chair the House Judiciary if Nancy Pelosi is the new Speaker of the House. With that much on the line shouldn’t the possibility of collusion between Pelosi and Feinstein before the release of Ford’s allegation be investigated?

Epilogue

ANY that would conspire to interfere with the senate’s duty to “advise and consent” (U.S. Constitution Article II, Section 2, Clause 2) should be exposed and punished to the full extent of law. The Constitution does not recognize party loyalty.

Brad Molnar served 6 years on the Montana Legislature’s House Judiciary Committee