Donald Trump’s water carriers, including Mitch McConnell, absurdly contend that the Senate doesn’t need to hear from the president’s closest advisers before voting on his removal, because the House purportedly failed to do all it could to obtain court rulings rebuking Trump for his systematic stonewalling of congressional subpoenas.
The GOP’s argument that Congress should have devoted more effort to litigation is all the weaker because the Department of Justice is contending that the federal courts should not enforce Congress’s impeachment subpoenas regardless of their legal validity. Therefore, if Attorney General William Barr gets his way, Congress’ sole recourse to obtain the testimony of the missing Trump Administration witnesses will be to arrest them itself, and jail them until they talk.
The claim that Congress has not diligently pursued its arguments in the courts is the reddest of herrings. When the impeachment investigation began, Trump’s White House counsel Pat Cipollone declared the inquiry to be constitutionally “illegitimate,” and Trump instructed federal government officials to reject all Congressional demands for information and testimony; every current and former official who testified before the House in the impeachment inquiry did so in defiance of this presidential directive.
While Trump has not advanced remotely cogent arguments for his embargoing of witnesses and evidence, Congress went to court to challenge each legal argument he has made, before and after the impeachment process began, and Congress has won each time. Two different sets of federal trial and appellate courts upheld congressional demands for Trump’s financial records; and those cases are now before the Supreme Court. Congress has had similar success since it commenced its impeachment investigation. While Trump has asserted that White House advisers—like Acting OMB Director Mick Mulvaney and former National Security Adviser John Bolton—are absolutely immune from congressional subpoenas, that argument was rejected in a case involving former White House Counsel Donald McGahn. Another trial court rejected the DOJ’s effort to prevent Congress from reviewing the underlying evidence obtained by a grand jury convened by Robert Mueller.
Given the president’s continued defiance (which is the basis for one of the House’s two articles of impeachment), it would have been entirely futile for Congress to issue yet more subpoenas to additional witnesses, including Mulvaney and Bolton, until the pending appeals are resolved. The only way to break the logjam would be for the Senate to subpoena the president’s advisers in connection with the upcoming trial. That would inevitably lead either to their compliance or to litigation that could end up in the Supreme Court in the same rapid fashion as the cases involving the Pentagon Papers and the Nixon White House tapes. No wonder McConnell is determined not to take that step.
The GOP argument that the House should have issued, and then gone to court to enforce, additional subpoenas is rendered all the more absurd by recent arguments that the DOJ has made in a pending appeal of a House victory in enforcing an impeachment-related subpoena.
In the McGahn case, the DOJ has asserted that Congress lacks “standing,” that is the basis to be heard at all in court, in order to enforce its impeachment-related subpoenas for testimony. The DOJ’s extreme position is of a piece with a speech Attorney General Barr gave in November before the right-wing Federalist Society, in which he argued that courts should simply refuse to decide many disputes between Congress and the president. Soon thereafter, during a hearing in the grand jury case, Judge Neomi Rao—a former Trump administration official—expressed sympathy with Barr’s argument.
In a filing on Monday, the DOJ doubled down on that position, asserting, among other things, that, because Congress impeached Trump in part for his categorical refusal of virtually all of Congress’ demands for testimony, it would be improper for the courts to issue a decision on whether any part of his stonewalling is illegal.
The absurdity of this argument is obvious.
If a president can avoid compliance with his legal obligations by getting impeached, then he would have a strong incentive to solicit impeachment by the House of Representatives in order to gain, quite literally, a license to break the law without recourse.
While the DOJ has not challenged Congress’ standing in the grand jury evidence case, for technical reasons related to the grand jury secrecy rules at issue, it nonetheless argued, in a brief also filed on Monday, that Congress has no further investigatory need for the materials because the articles of impeachment have been passed, an argument the House easily rebutted by noting that its investigation continues, and could lead to passage of additional articles.
There is more than a little irony to Barr’s argument that the courts should largely absent themselves from enforcing the law once an impeachment proceeding begins, because it would amount to the federal courts giving up the very power and authority that led Donald Trump to determinedly seek to pack the federal courts with extreme right-wing jurists. In the Supreme Court’s 1803 decision Marbury v. Madison, Chief Justice Marshall declared that the federal courts, and thus ultimately the Supreme Court, have the exclusive power to decide the meaning of the Constitution and laws enacted by Congress.
The Supreme Court has jealously guarded that power and authority for hundreds of years since, and has exercised it—often for ill, and sometimes for good—in times of national crisis and conflict. For example, in the Dred Scott decision, the Court decided that Congress could not outlaw slavery in any state and that African-Americans were not citizens of the nation, a ruling that played a key role in the events leading to the Civil War; and, after that war, in Plessy v Ferguson, the Court held that racial segregation laws did not violate the 14th Amendment’s equal protection guarantee. On the other hand, decades later, in Brown v. Board of Education, the Court overruled Plessy and declared that segregated schools violate the Constitution. And, in Bush v. Gore, the Court declared that the Constitution somehow required Florida to stop counting votes in a virtually tied presidential election, and decreed the installation of George W. Bush as president, a decision defenders of the court have justified by the need for finality, and the avoidance of potentially catastrophic internecine conflict in the nation.
Barr’s contention that the courts should refuse to decide whether Congress’ impeachment subpoenas are valid is not only at odds with the courts’ central role in resolving national crises arising from legal disputes, it also invites the very kind of conflict the Supreme Court has previously intervened to prevent. If the courts refuse to act as Barr suggests, then Congress will have no option other than to exercise its long recognized—but now dormant—power of “inherent contempt,” whereby the House may imprison executive branch officials who have defied its subpoenas, and hold them in jail until, and if, they comply.
It is hard to imagine a greater recipe for national conflict than if the sergeant-at-arms of the Congress is battling it out with the secret service on the streets of Washington, D.C., as Congress attempts to arrest the highest-level members of the Trump administration, or possibly the president himself. And it is also difficult to imagine a more irresponsible abdication by the nation’s courts than that which William Barr is seeking.