TRUMP WINS --UNLESS ... .
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First, I need to pat myself
in the back. On 20 March, 2019, one month before Mueller submitted his report,
I posted my blog opinion on how Trump would try to scotch Mueller. I wrote that
Trump has come up with "Plan B" -- block everything in the Mueller report
because it is "subject to Executive Privilege."
And now, after earlier
telling McGahn not to testify, Trump has gone whole hog and iced the entire
report on those grounds. The result? Barr skipped his testimony before the
house, and private citizen McGahn says he will obey Trump and he won't show up
either.
Trump makes contradictory
statements every hour, but the major tactic of delay, delay, delay remains the
core of his plan.
So what will happen?
The House will hold Barr and
McGahn in contempt of Congress, the US Attorney will refuse to prosecute, (they
almost always do, and besides, if he did, Trump would pardon the defendant),
and Congress will be left with one realistic remedy: seek a court order
directing McGahn and Barr to testify and produce the subpoenaed documents. If
Nadler could win such an order, the respondents would have to obey or be guilty
of civil contempt of court, and be
subject to jail until they complied. That is not a criminal conviction and
Trump has no power to pardon. I'm guessing Barr does not look good in orange, he
does not wish to be in a jail cell adjacent to contemnor Chelsea Manning, and he will fold.
This produces two questions:
1. Will the courts require
compliance with the House subpoenas? Most lawyers who are not on Trump's
payroll agree that Trump's claim of Executive Privilege is meritless. I mean real lawyers, not Giulianies. Real lawyers, the kind who take notes, not the Roy Cohns.
But ... .
Ahh, the "but."
Let's assume the District Court and the Court of Appeals each rule in favor of
Congress. Then, for sure, the case will go to the Supremes, where this President may
be playing on his home turf. After all, he has a majority of conservatives -- two
of whom are his appointees, Neil Gorsuch and Brett Kavanaugh, and the latter earned
in his nomination by his ardent advocacy of Executive Power.
What do the other Justices
think about the issue of Congressional subpoena power vs. President's claim of Executive
Privilege? A unanimous Supreme Court ruled against Richard Nixon's claim of executive
privilege regarding a grand jury subpoena in 1973, but none of those Justices
are on the Court today, and these facts are a lot different.
That is not to say the Executive
Privilege vs. Congressional subpoena question has not been before the courts. There
are a number of cases, and virtually all support Congress. But the most
significant one today may be the case decided in 1981. Here's that story:
President Ronald Reagan, who
campaigned on a promise to pare down the size of the government, appointed a Colorado
lawyer/politician named Anne Burford as Administrator of the Environmental
Protection Agency. Her brief tenure was a disaster. As described by The NY
Times, she "inherited one of the most efficient and capable agencies in
the United States government and turned it into an Augean stable, reeking of
cynicism, mismanagement, and decay."
One of the great scandals of
the day was the mismanagement of the Superfund designed to ameliorate serious toxic
waste hot spots. The House subpoenaed Ms. Burford to produce documents related
to that subject, and Reagan asserted Executive Privilege and directed Burford to
refuse to comply. The result was she became the first cabinet member ever to be
found in contempt of congress. The vote was not close: 259-105. But before the
House could send the document certifying her contempt to the U.S. Attorney for
prosecution as a criminal contempt, the Department of Justice obtained a
temporary injunction barring that transmission.
The District Court dismissed
the DOJ's suit as meritless, the White House folded and coughed up the
documents. Burford quit and bitterly complained about the Congressional
investigation and the whole experience.
Oh yeah, Anne Burford was
formally known as
Anne Gorsuch Burford. Yes, that Gorsuch. She was Justice Neil Gorsuch's mom.
If and when the Barr contempt
citation reaches the Supreme Court, will Justice Gorsuch recuse? As I am wont
to ask, does a bear poop in a tree?
2. The second question is how
long will this take? The answer: It depends.
The Burford contempt issue
was resolved in less than a year, because the parties settled after Burford
lost in the District Court. But even in the event of a District Court victory, can
this House overcome Trump's stonewalling strategy and get the testimony and documents
before the end of the 2020 campaign?
The next White House
contemnor was Harriet Miers, President Bush's former White House Counsel. She
was found to be in contempt of Congress in connection with the House
investigation regarding the Bush firing of nine U.S. Attorneys. When she
refused to obey a subpoena, the House sued on March 10, 2008, and it took the
District Court five months to decide, in favor of congress.
The government of course then appealed the decision to the Circuit Court of
Appeals, which refused to expedite the case. Ultimately, the court concluded the case was
moot because Congress expired in January 2009!
Next up was Attorney General
Eric Holder who battled with Congress over the "Fast and Furious" investigation.
When negotiations failed, he complied with President Obama's assertion of
Executive Privilege and refused to produce the documents in question. Holder was
found in contempt of Congress on June, 2012. The chronology of that case is
an appalling model for the success of stonewalling:
The House commenced a civil action in August
2012, and the government's motion to dismiss the House suit was denied more
than a year later, on September 30, 2013. The parties' motions for summary
judgment were decided in another year, on August 2014. It took yet another year and
a half before the House to win a court order, in January 2016, directing Holder
to produce documents. No surprise, Holder appealed and in January 2017, the
court held the matter in abeyance pending settlement negotiations with the
Trump administration! Time elapsed: 4.5+ years.
On the other hand, in 1973, when
Judge Sirica rejected President Nixon's Executive Privilege defense and ordered
him to turn over the tapes, the President's appeal to the Circuit Court went
directly to the Supremes via some legal rule I don't dare try to explain, and
the historic decision that led to Nixon's resignation was rendered within 90 days of the District Court decision.
Conclusion: The judicial
remedy for Trump's stonewalling is available and it can be accomplished
expeditiously. Both sides have obviously prepared for this battle, and could file briefs tomorrow. There is no good reason for litigation delay. If the courts fail us, Trump's delay tactics will have proved to be a winning
strategy, and the Constitution will have incurred a major dent.
Will the judiciary act act apolitically and efficiently? I have my fears and my doubts.
A more succinct version of
this rant has just been published in Time.com
A bientot.
........................
As my regular readers know, there
is no fixed schedule for these posts. If you want a notice of each new posting,
send me an email and I will add you to the notice list.
mlondon34@gmail.com
posted by marty at 1:10 PM
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