Supreme Court Chief Justice John Roberts, who gained his appointment from Republican George W. Bush, is on record as publicly hoping to avoid the public perception that the Supreme Court is a partisan institution. Of course, the Supreme Court should not be partisan. In good Republican fashion, unsurprisingly, Roberts used his desire to avoid the appearance of partisanship to refuse to decide a case in favor of Democrats.
The Constitution gives to the House the “sole power of impeachment.” Nothing can immunize actions of either of the other branches to review by the judiciary, but, since the Constitution only uses “sole” in defining the impeachment process, that strongly suggests that judicial interference in the actions of the House should be minimal when the House is pursuing its power of impeachment, especially when they use well established, otherwise uncontroversial legal mechanisms and are in no way violating the rights of any individual.
Now Donald Trump, playing at being president, has served up two issues, either or both of which may test Roberts’ commitment to non-partisan legal decisions. A former Trump lackey, Carl Kline, recently failed to appear for a deposition before the House Oversight Committee, which wants to know more about the claim of one of Kline’s subordinates in the office that approves security clearances that Trump overrode the decisions of that office and granted security clearances to people who did not qualify for them according to existing standards. The Chair of that Committee, Rep. Elijah Cummings, (D-NY) is discussing the possibility of holding Kline in contempt of Congress. Cummings said, correctly, that Trump believes that the Constitution does not apply to his office and that he may defy the oversight powers of Congress with impunity.
Depending on how this plays out, the issue could easily end up before the Supreme Court, the only place to take disputes between Congress and the president as branches of government. It might start out in a federal trial court, but either side will likely appeal that decision, and the Supreme Court is free to take the case from there if it sees fit.
At the same time, Steve Mnuchin, Secretary of the Treasury, missed a second deadline to submit to the House Ways and Means Committee copies of Trump’s tax returns for a specific set of years. Mnuchin claims that he is consulting with the Department of Justice over the alleged constitutional and privacy issues the request poses. Like his counterpart, Rep. Cummings, the Chair of the Ways and Means Committee, Richard Neal (D-MA), is considering what his next step might be. The options include a subpoena for the documents in question.
This issue may also end up in front of the Supreme Court.
Both issues are obviously highly partisan, as is everything in our national politics since the days of bomb throwing Newt Ginrich, who pushed the hyper partisan impeachment of Bill Clinton. These events are only occurring because the Democrats gained control of the House of Representatives in the 2018 election, which saw record turnout and is hard to understand as anything but a wholesale repudiation of the Trump regime.
As a legal question, the Constitution plainly divides the powers of government among three branches, the legislative, the executive, and the judicial, which appear in order of their importance. The job of the executive is to enforce laws and the job of the judiciary is to interpret laws, meaning that neither would have anything to do without laws, which only Congress can pass in the strict sense of statutes that bind every person who acts under the jurisdiction of the Constitution.
The point of distributing the powers of government is to ensure that none of the branches, or any individual operating within one of the branches, becomes too powerful. On those grounds alone, either of the disputes above should bring, from the Supreme Court, an easy decision in favor of Congress. At the moment, plainly, as the result of decades of historical accretion, capped by a stupid, reckless president who has zero understanding of the rule of law, the executive branch is in danger of becoming too powerful.
Again, looking at the specific terms of the Constitution, it uses the term, “sole,” only twice, both in defining the procedure for impeachment, which the president is expressly susceptible to. We should, strictly, say, “removal through impeachment,” which is apparently what most people mean when they say, “impeach,” but the meaning is usually clear from the context. People call to “impeach Trump” because we want to remove him from office. But the concept of the separation of powers precisely is that the separation is only partial, with each branch playing some role in the proper operation of the other two. The only place where the Constitution, on its face, departs from this scheme, is in assigning to Congress the “sole” power over impeachment. Judicial review of impeachment activities of Congress should be severely limited.
The second use of “sole” comes when the Constitution states that “The Senate shall have the sole power to try all impeachments.” This is literally akin to a criminal trial, in which the Senators play the role of jurors, with two thirds majority required to remove an official.
The first use of “sole” in the Constitution, as we have seen, comes where it states that “The House of Representatives….shall have the sole power of impeachment,” which means to level the charge that the official will stand trial for in the Senate.
To repeat, the House should declare that it is conducting an impeachment investigation to provide a stronger legal position relative to the executive branch in the two disputes above, and in any others that may arise until either Trump leaves office, or the 2020 election occurs. The Constitution always constrains government, and it is not impossible to imagine actions by the House that would violate its principles in conducting an impeachment inquiry, but so far the issues involved — subpoenas and possible findings of contempt — are entirely ordinary legal mechanisms that judges and law enforcement officers use routinely in conducting investigations, so the issue boils down quite nakedly to a competition between the House, investigating possible crimes by the president, and the president, who is actively obstructing their legitimate investigation.
In partisan terms, the Court currently has four justices who received their appointments from Democratic presidents, Breyer, Ginsberg, Kagan, and Sotomayor. It has five justices who received their appointments from Republican presidents, Alito, Gorsuch, Kavanaugh, Roberts, and Thomas.
The decision in U.S. v. Nixon, the most obviously relevant case on its face, in which President Nixon refused to submit recordings of Oval Office conversations to the special prosecutor, was unanimous. The Court ordered Nixon to comply with the subpoena and surrender the recordings. Justice Rehnquist recused himself because of his connections to the Nixon administration. Both Kavanaugh and Gorsuch should also recuse themselves, but being good “conservatives” and Trump lackeys, they may well not.
The correct legal answer, again, at this juncture, seems clearly to be that the House should prevail over the president. This should not be a partisan issue at all.
Insofar as Republicans choose to make it a partisan issue, as they undoubtedly will, Roberts will have little choice but to vote with the Democrats if he hopes to preserve the reputation of the Court.