TICK, TOCK, THE MOUSE RAN OUT THE CLOCK,...OR TRIED TO

President Trump has unabashedly announced a policy of stonewalling Congress on its demands for documents and testimony covering any subject, whether it is Russia, obstruction of justice, violation of the Emoluments Clause of the Constitution, ethical violations of fed statutes, financial fraud before and during his incumbency, whatever.

Congress has responded with subpoenas to protect and enforce its Constitutional right and obligation to monitor the Executive, learn facts necessary to enact legislation, and perhaps impeach the President or any other Article II "Officer."

Without writing an extensive legal brief here, I suggest the law is overwhelmingly clear that Trump's tactic will ultimately fail, unless the Supreme Court disgraces itself with a political ruling that rivals Bush v Gore for its abandonment of accepted legal principles.

The question is how soon will the dispute(s) be resolved. When will Congress get to expose the guts of Trump's disgraceful and arguably criminal conduct? Trump pushes for November 5, 2020, and the Democratic-controlled House pushes for tomorrow. Trump's risk is he wins early battles, but loses the war, i.e., he gains delay of the testimony and document production by McGahn, Mueller, Deutsche Bank, Trump's accountants, and the IRS production of Trump tax returns to June, 2019, only to see the dam burst in June 2020. Methinks Ms. Pelosi et al would accept that result.

But the law can drag. The rules designed to give litigants time to prepare and prove their cases, their adversaries time to respond, the judge's (and sometimes Juries') time to decide, and then the appellate courts  time to review lower court rulings, can take years

Are the courts up to the challenge? The judiciary system worked with great efficiency when it took but ninety days for the Supreme Court to affirm a District Court order directing President Richard Nixon to turn over tapes that ended his presidency, but a court dispute over a congressional subpoena served on Attorney General Eric Holder was resolved only after seven years of court and party foot-dragging.

We are off to a good start. There are two subpoena enforcement cases pending now.

I.

Chairman Elijah Cummings of the House Oversight Committee, served a subpoena on Trump's accounting firm, seeking documents, tax returns, etc. On April 22, 2019, Trump sued to prevent compliance, and asked for a temporary injunction. That is, he asked D.C. District judge Amit Mehta. to block the firm from transmitting the documents to Congress until after the trial, when the validity of the subpoena would have been finally decided on the merits. The parties agreed the accountants could delay production until seven days after the District Court's final ruling.

The issue? Trump argued there was no valid "legislative purpose" supporting the subpoena. The House responded that Cohen's testimony and other information it had received raised legitimate questions whether Trump

i) Engaged in illegal conduct before and/or after his inauguration,

ii) Had undisclosed conflicts of interest that might motivate official conduct

iii) Complied with the Emoluments clause in the

Constitution

iv) Accurately reported his finances as required by the Ethics Act of 1998.

The House argued it legitimately needed information about those subjects so that it might pass necessary curative legislation, and make impeachment decisions about the President's possibly illegal conduct before inauguration (Clinton investigation) and after inauguration (Nixon investigation.)

The District Court ruled that the House demands for information (which were consistent with House Rules extant in both Republican and Democratic majority Houses) were "facially legislative in character," consistent with legislative and judicial precedent. Therefore he was neither empowered nor inclined to second guess the Congress.  Citing precedent, he wrote: "This court is not going to roll back the tide of history."  Bottom line: the court ordered the accountants to give the documents to Congress.

Now for some technical but important legal stuff. The court did what, I am proud to say, I predicted it should:

1. Because there is no discovery available to the plaintiff because of the Speech and Debate clause, and given applicable legal principles, the court used a provision of the Federal Rules of Civil Procedure to consolidate the preliminary injunction hearing with the final trial on the merits, and entered Summary Judgment dismissing Trump's claim on the merits.

2. Trump immediately moved for a stay pending appeal. The District Court denied the stay principally because of the requirement  that the applicant for a stay must demonstrate he is "likely to succeed on the merits," and Trump failed that test.

Now we will see if the D.C. Circuit Court grants a stay and expedites the appeal, or if courts employ the same procedure they did in the Nixon case and move the case directly to the Supremes.

II.

The second pending case is in the Southern District of New York, pending before Judge Edgado Ramos. In that case, Trump and his family sued to block compliance with a House subpoena seeking Trump documents from Deutsche Bank . The Trump complaint was filed on April 29, and this court too moved with a sense of urgency. The normal timetables were scrapped, and pursuant to a scheduling order signed by the judge, plaintiffs moved for a preliminary injunction four days after filing their complaint, on May 3; the defendants responded a week later on May 10, plaintiffs' replied five days later, on May 15, and the court set the matter down for hearing for tomorrow, May 22. Obviously, the Mehta decision --41 pages of legal analysis -- will be of some influence.

Question: will the appellate courts act with comparable attentiveness? Assuming Judge Ramos acts with speed and efficiency equal to Judge Mehta, no matter which way Ramos decides, will the appellate tribunals act expediently? Ideally, will they consolidate these cases for appellate purposes so that they are taken up by the Supremes no later than the October 2019 term?

Once upon a time a unanimous Supreme Court scorched a Republican President because that's what the law required. Have today's tribal politics "trumped" the rule of law, and infected our judicial system?

Our respect for the third branch of government hangs in the balance.

A bientot!

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