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Solomon Wisenberg On His Time Working With Kavanaugh

DAVID GREENE, HOST:

President Trump's second Supreme Court nominee, Brett Kavanaugh, will face questions in his confirmation hearing this week. And one issue Democrats are really eager to focus on is whether a sitting president can be indicted or investigated for possible crimes. Kavanaugh suggested the answer to that is no in a law review article about a decade ago, which seems unexpected given Kavanaugh was part of a team that aggressively investigated a president - Bill Clinton. He worked for independent counsel Kenneth Starr.

And so did Solomon Wisenberg, who was Starr's deputy independent counsel. He and Kavanaugh got to know each other in those days. And Mr. Wisenberg joins us on the program this morning. Welcome.

SOLOMON WISENBERG: Thank you.

GREENE: So you and Brett Kavanaugh investigated Bill Clinton, and he has since written that presidents should not be subject in a criminal investigation while in office. Can you make sense of that?

WISENBERG: Well, absolutely. The article you're talking about was written in 2009, and there were a series of suggestions for legislation that could be enacted that Brett thought would be beneficial, and that was one of them. And it doesn't at all say what he would do if he was on the Supreme Court. There's a difference between what you think the Constitution says and what you think is a legislative fix for a problem.

GREENE: Although there was this video that has also come up from back in 1998 at a panel at Georgetown Law where he raised his hand, being asked as a matter of law if he thinks a sitting president should not be indicted. I guess I just wonder. Is this an area where you think Democrats - it's sort of fair game for them to really dig in this week?

WISENBERG: Well, you know, anything's fair game in a Senate Judiciary Committee hearing. But the idea that the president - that a sitting president cannot be indicted is an overwhelmingly mainstream position in American constitutional law. I happen to disagree with it, but I'm in the decided minority. So there's nothing unusual if he, at a panel 15 years ago or 10 years ago or five years ago, held that position.

GREENE: So, I mean, it sounds like Democrats are really going to pepper him with questions about this topic. And step back for me and talk to me about what you think makes, you know, constructive questioning during hearings like this and what could potentially, you know, begin to border on politics.

WISENBERG: Oh, it's all politics. It's all theater. It's all about getting to that gotcha moment. I think any senator has the right and the duty to vote against somebody who's been nominated for the Supreme Court if you profoundly disagree with that person's constitutional philosophy and if that philosophy is not the same as yours if you're sitting there as a senator. But unfortunately, nobody's honest about that, and that's not what goes on what goes on. What goes on ever since the Robert Bork nomination is let's see how we can destroy the character of this person.

GREENE: But isn't the question of whether a sitting president could be indicted or investigated - isn't that a matter of constitutional philosophy?

WISENBERG: Oh, it is. I'm not saying you wouldn't ask about that. The recent tradition is the nominees are not going to answer any question that might come before them. They speak in relatively vague generalities.

GREENE: OK. You weren't saying that that's the...

WISENBERG: But it's a totally...

GREENE: ...Kind of gotcha moment.

WISENBERG: ...It's a totally legitimate question. Sorry to talk over you there.

GREENE: Chuck Schumer, the Senate minority leader, tweeted that the White House's decision to withhold pages and pages of documents about Kavanaugh's record has all the makings of a cover-up. Those are the words of Chuck Schumer. Do you think those documents should be released to give senators a better idea of his record?

WISENBERG: Not if it will delay his nomination to the point that we go beyond the midterms, no. And I think that's what's going on there. Look; if there's anybody who's a known quantity, it's Brett Kavanaugh. He's been on the bench about 12 years. He has hundreds of opinions, very outstanding opinions, outstandingly written opinions. He has broad support among a broad spectrum of politics and law. So I don't think there - it's all again looking for the gotcha moment, and that's what they think they're going to have in those papers.

GREENE: Talk to me about how, if you are Brett Kavanaugh, how you are preparing for a hearing like this. I mean, you are going to be sitting there for hours taking questions. What do you do to get in a mental space if you're a lawyer like Brett Kavanaugh to be ready for this big week?

WISENBERG: It's like preparing for an - your first argument in front of the Supreme Court. I'm sure they've gone through several practice sessions. And he's a very, very well-prepared, studious fellow and a careful fellow and has always been that way. He was that way when I worked with him. And it was one of the impressive things about him.

GREENE: Tell me anything that you learned about him in working alongside him in Kenneth Starr's team that might tell us something about what kind of Supreme Court justice he would be.

WISENBERG: Well, he was very mature. You got to remember he was a young guy. But he had a lot of - we had a lot of respect for him because Ken had chosen him to really head up the litigation team, the brain trust. And like I said, I thought he was wise beyond his years, quiet with a wry sense of humor. He had a great sense of humor. He laughed at every one of my jokes. And to me that's the really - the No. 1 indicator of a person's sense of humor. But...

GREENE: (Laughing) So maybe that's...

WISENBERG: But when the situation called for him to be serious, he could be quite serious.

GREENE: Solomon Wisenberg is a partner at Nelson Mullins law office in Washington, D.C., and worked on Kenneth Starr's team alongside Brett Kavanaugh, who will be in his confirmation hearings this week. Thanks so much. We appreciate it.

WISENBERG: Thank you. My pleasure. Transcript provided by NPR, Copyright NPR.