When the Subpoena Hit the Fan

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Representative Jerry Nadler (D-NY)

The House Judiciary Committee voted to issue a subpoena for the entire report from Special Prosecutor Robert Mueller about his investigation into possibly illegal contacts between Donald Trump’s presidential campaign and Russians in 2016.

This is where the rubber hits the road.

In Watergate, the Judiciary Committee did not issue the subpoena, the special prosecutor, Leon Jaworski, did. Jaworski did not subpoena any report, he issued the subpoena for tapes Nixon recorded in the Oval Office during the period immediately after the break in at the Watergate Hotel that was the cause of the whole imbroglio. Nixon refused to release the tapes, which prompted Jaworski to appeal to the Supreme Court. The Court decided unanimously to order Nixon to turn over the recordings.

Nixon released transcripts of the tapes, which contained definitive evidence of his attempts to stop the FBI investigation into the break in. That was the proverbial “smoking gun” that prompted the House Judiciary Committee to vote out an article of impeachment against Nixon, which would lead him to resign within weeks.

So there are important similarities between the events that led to Nixon’s resignation and current events, but there are also important differences. Given that Trump has now, predictably, reversed his call to release the Mueller report publicly, and that his staff will likely convince him to stonewall, it seems likely that he will tell Barr, who apparently is already so inclined, to refuse to give the report to Congress.

One of the legal arguments Nixon made was that, because the dispute involved the president and a special prosecutor he had appointed, it was “intra-executive” and thus immune to decision by the judicial branch. This is nonsense. The separate branches of our government are not fully separate. They are supposed to check and balance each other, which they can only do if they have some influence over each other. The president must abide by the law as much as anyone else. The judge who issued the subpoena was conducting a trial and relying on well established U.S. law in doing so. Judges decide legal disputes, including disputes that arise within anther branch of the federal government.

Nixon also claimed “executive privilege,” a nebulous, roving concept that is inherently suspect, if not invalid, in its enormous potential to hand to the president a cheap excuse to refuse to abide by any law at all. The decisions of federal judges must bind all parties.

We do not know now what legal arguments Trump will offer to support his refusal to comply with the subpoena. The “intra-executive” argument obviously does not apply, obviously, since this subpoena came from the House of Representatives, not the special prosecutor.

Republicans are always big fans of a strong executive, as long as that executive is a Republican. They start whining about abuse of power by the president very quickly when the president is a Democrat, of course, since partisanship is their life blood. So they will likely whip out their “executive privilege” argument.

We also do not know how the Supreme Court will decide the question. The claim to “executive privilege” is legally very dubious. They have a very strong, directly relevant precedent, decided unanimously. In Nixon’s case, Justice Rehnquist recused himself because of his recent involvement in other cases as part of the Nixon administration. In principle, both Gorsuch and Kavanaugh, as Trump appointees, should also recuse themselves, although we know Republicans are not very scrupulous about abiding by ethics rules, so we do not know if they will.

Chief Justice Roberts has long stated his concern about the perception of partisanship by the Supreme Court, and it seems obvious that Republican justices voting to let a Republican president keep confidential a report from a Republican special prosecutor would look highly partisan.

Written by

Uppity gay, Buddhist, author, historian.

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