According to Brett Kavanaugh, the Supreme Court decision ordering Richard Nixon to turn over the tapes that ultimately forced him from office was among the “greatest moments in American judicial history, when judges stood up to the other branches, were not cowed, and enforced the law.” Donald Trump, however, prefers judges who cower before him, particularly when he is trying to hide evidence.
Trump got his way last week when an appellate court ruled that Congress can’t enforce a plainly meritorious subpoena seeking testimony about Trump’s own potentially criminal conduct. That ruling could soon be before Kavanaugh, and we will see if he and his fellow Justices choose to enforce the law, or are cowed by a lawless president.
The White House instructed former White House Counsel Don McGahn to flatly refuse to comply with Congress’ subpoena for testimony about Trump’s efforts to obstruct the Mueller investigation, including by attempting to fire Special Counsel Mueller himself. The White House relied on a claim of “absolute immunity,” which purportedly allows the president to insulate his close advisers from any and all congressional subpoenas, even those directed at uncovering presidential criminality.
No court has ever recognized the absolute immunity doctrine; but in a 2-1 decision on Friday, a three-judge appellate panel in Washington ruled in Trump’s favor without addressing the merits of his immunity claim. The two judges in the majority ruled that the Congress lacks constitutional “standing” to enforce its own subpoenas to the president and other executive branch officials in court—meaning that any president who, like Trump, chooses to stonewall Congress’s demands for information cannot be ordered to comply by the courts, no matter how lawless and overreaching their defiance of Congress may be.
The majority’s reasoning was dubious, and even careless. For example, in his majority opinion, Judge Thomas Griffith emphasized that Congress was purportedly seeking to enforce a subpoena upon a member of the executive branch, and stated that “we do not address whether a chamber of Congress may bring a suit against private citizens to enforce a subpoena.” Yet, as Marty Lederman noted, McGahn is a private person; he left the White House in 2018. Furthermore, the court grounded its decision on a Supreme Court ruling that individual members of Congress lacked standing to litigate the constitutionality of a statute; yet that decision hardly compelled a conclusion that a congressional Committee—acting with the express authority of the entire House—is unable to petition the courts to enforce that legislative body’s duly issued subpoenas.
Judge Karen Henderson devoted much of her concurring opinion to explaining that Trump’s absolute immunity claim was overreaching, and very likely legally defective. Yet because Henderson also concluded that Congress lacked standing to enforce its subpoena, her discussion of the lawlessness of Trump’s immunity claim was entirely pointless. Indeed, it underlined the fact that the court was effectively granting Trump a license to break the law, and thumb his nose at both the Congress and the law, without consequence.
Griffith and Henderson emphasized that courts have generally sought to avoid deciding disputes between the Congress and the president, when possible, so as to allow the two branches to seek to reach consensual accommodations through negotiation. Yet Trump publicly declared during the impeachment investigation that he had no interest in reaching accommodations with Congress, and was determined to stonewall all subpoenas.
Indeed, as Judge Judith Rogers wrote in her dissent, by ruling that Congress’s subpoenas cannot be enforced, the court effectively “dismantle[d] the [very] accommodation process” that it purported to endorse: “[T]he court removes any incentive for the executive branch to engage in the negotiation process seeking accommodation, all but assures future presidential stonewalling of Congress, and further impairs the House’s ability to perform its constitutional duties.”
Judge Griffith contended that Congress should make use of extra-judicial mechanisms to pressure the president. For example, he argued that Congress could respond to a president’s refusal to respond to a subpoena by “derail[ing] his legislative agenda.”
During the oral argument on a companion case, concerning a congressional subpoena for documents obtained by Mueller’s grand jury, Judge Neomi Rao, a former Trump administration official, offered another option, helpfully suggesting that Congress might send officers to wrest subpoenaed materials from recalcitrant government officials instead of involving the judicial branch in the dispute.
While Congress has, in recent years, shut down the government to pressure presidents (and President Trump attempted the same gambit to pressure Congress), those incidents have never ended well, to say the least. Congress also does indeed have an “inherent contempt” authority that would empower it to arrest and jail members of the president’s cabinet in order to pressure them to comply with subpoenas. But it is hard to imagine that the nation’s already contentious political atmosphere would be improved by scenes of armed battles between the branches of government on the streets of Washington, D.C.
That is why Congress went to court. Courts have been the final arbiters of the meaning of the Constitution since the Marbury v. Madison decision in 1803. Indeed, during Trump’s impeachment trial, Republicans chided the House for failing to fully litigate its challenges to Trump’s stonewalling in the courts before impeaching the president, arguing that “That is why we have courts. That is why we have a federal judiciary.”
As the House Managers explained at the time, Trump’s argument was disingenuous, given that he was urging the courts to refuse to make such determinations. But as Representative Adam Schiff observed, in the wake of last week’s ruling, Trump’s position appears positively duplicitous.
Indeed, as Judge Henderson explained, if the decision stands, the courts will effectively be granting Congress and the president license to ignore the law, and even effectively overrule court rulings, since the coordinate branches will face no consequences for engaging in lawless conduct towards one another.
At the end of the day, the actual danger does not lie in the courts stepping in to decide important legal questions that arise in the context of political disputes between Congress and the president; rather the danger arises from the courts refusing to rule and thereby—in Kavanaugh’s formulation—cowering in the face of their constitutionally assigned duty to decide what the law and Constitution require. That is what the appellate court did last Friday.
Justice Kavanaugh and his colleagues likely will ultimately be called upon to decide if that decision will stand.