Taking a Knife to a Gun Fight

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Rep. Jerry Nadler, D-NY

Democrats in the House finally started to show some fight, although they’re doing it really badly.

The House Judiciary Committee authorized subpoenas for twelve witnesses who gave testimony to Robert Mueller during his investigation. Exactly why they did this is not at all clear. Mueller has already come as close as he’s going to come to telling them to impeach Trump, a message they refuse to hear for unknown reasons.

Since Trump has been very consistent so far, the mostly likely response from all of these witnesses is that they will refuse to comply with the subpoenas.

The likely refusal of Trump toadies to comply with the subpoenas will set up a legal battle very similar to the one that brought Richard Nixon to resign from office. Trump is too stupid to resign, so that likely will not happen.

The facts are different in some ways, but the key point is whether the president can refuse to comply with an otherwise valid subpoena. Trump’s lackeys may come up with some new theory, but it is hard to imagine what that might be.

When Nixon refused to comply with a subpoena, the special prosecutor who had issued that subpoena went quickly to the Supreme Court, which held unanimously that the president must comply with the subpoena.

Here the question of how serious Chief Justice John Roberts is about avoiding the appearance of partisanship by the Supreme Court becomes critical. Both of Trump’s appointees to the Court should recuse themselves, but being good “conservatives” and thus having no principles, they likely will not. Roberts may end up being the deciding vote in any dispute between Trump and the House.

Complicating matters is the decision in the case where Trump sought to block a subpoena the Committee on Oversight and Reform issued to Mazar’s, an accounting firm Trump has used, for Trump’s financial records. The trial judge held that it was not the judiciary’s business to ask questions about why either House of Congress wants information it seeks, so long as they are not obviously infringing on anyone’s rights with their inquiry, which he found the House committee clearly was not doing in this instance. This was just a trial court opinion that is currently under appeal, so the Supreme Court may ignore it if they wish, but the legal reasoning is still there for the House to point to.

So that’s two strikes in favor of the House.

But the House would still be on the strongest ground possible if it were explicitly pursuing an impeachment investigation.

In 1993, the Supreme Court heard a case by a federal judge who underwent impeachment after conviction and imprisonment. He challenged the procedure the Senate used to try him (remember that “to impeach” only means to allege the crime, which the House has the “sole” power to do; the Senate has the “sole power to try all impeachments”). The Court, again unanimously, held that the question was “nonjusticiable,” which is their term for a question the Court may not decide. They noted that the Constitution only uses the term, “sole,” in two places, both in defining the procedure for impeachment. They also noted that allowing judicial review of impeachment decisions risked leaving the nation subject to long periods of political paralysis, especially in an impeachment of a president, if that person could appeal a conviction to the courts.

We may get to find out fairly soon how the Supreme Court in its current configuration chooses to handle the delicate question of whether a president may defy a subpoena from Congress. Much as everyone seems to love to bleat that we face a “constitutional crisis,” we are not there yet. If the Supreme Court lets Trump get away with obstruction of justice in the open, we may well be.

The House should impeach.

Written by

Uppity gay, Buddhist, author, historian.

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