President Donald Trump has made his contempt for judges known. But when it comes to his fights with the Democratic members of Congress, the courts and the unhurried wheels of justice have been his ally.
Trump has been able to stall moves against him through multiple lawsuits, including as he refuses to turn over financial documents to the US House and prevents former administration officials from testifying.
His lawyers continue to take advantage of the protracted nature of litigation, especially now, as Democratic House leaders are pressing for an impeachment vote by the end of December. To keep to that timetable, Democrats are forgoing testimony from some officials who have defied requests to appear before House committees.
On Thursday, as Trump’s lawyers asked the Supreme Court to hear arguments in the President’s challenge to a House subpoena for records from his longtime accountants, they urged “deliberate consideration” rather than any “hasty” action on the matter.
House lawyers have asked the justices to permit the subpoena, which was issued to Mazars USA in April, to be enforced. They have argued that delays essentially allow Trump “to dictate the timetable” by which information relevant to an impeachment inquiry would be available. It could be weeks before the nine justices announce whether they will hear Trump’s appeal of a lower court decision upholding the subpoena and reinforcing Congress’ oversight power.
That dispute over records that the House says would shed light on the accuracy of Trump’s financial disclosures is but one example of how the third branch of government is influencing fundamental conflicts between the President and Congress.
And Trump’s entreaties to the courts – certainly the right of any President – have increasingly become a flashpoint in the impeachment controversy.
In an interview with CNN on Thursday, Rep. Francis Rooney criticized Democrats for a “rush to judgment” on impeachment. The Florida Republican contends House Democrats should sue to obtain testimony from firsthand witnesses to Trump’s dealings with Ukraine. Among those who refused to testify before the House Intelligence Committee are former national security adviser John Bolton and his deputy Charles Kupperman.
But House Speaker Nancy Pelosi asserted earlier on Thursday that the House has sufficient grounds to move ahead now on articles of impeachment. She insisted Trump’s efforts to win the intervention of judges in disputes over witnesses and documents only reinforce his defiance of the House.
“When you keep asking why don’t we wait for these court cases,” she said at a news conference, “the President’s action in … taking these things to court and then bumping them up in (a higher) court (on appeal) is an obstruction of justice. We’re not going to be accomplices to his obstruction of justice.”
“We have our constitutional responsibility,” she continued. “We have our facts and we will act upon them. … (A)s the courts come forward with their decisions, whenever that may be, the President will have to be held accountable for that at that time.”
Don McGahn testimony
The House impeachment inquiry has focused on Trump’s dealings with Ukraine, apparently conditioning national security funding on a Ukrainian investigation of former Vice President Joe Biden, a Democratic presidential contender, and Biden’s son Hunter.
That inquiry has moved swiftly since October. But earlier House investigations into Trump administration activities, some arising from special counsel Robert Mueller’s Russian probe, date back months.
Last week, a US district judge ruled that former White House counsel Don McGahn must testify to the House, rejecting the administration’s claim that senior-level aides are absolutely immune from a valid congressional subpoena. House members have been seeking testimony from McGahn as they pursue whether Trump tried to obstruct Mueller’s investigation into Russia’s interference in the 2016 presidential election.
Judge Ketanji Brown Jackson condemned the White House assertion that it could block former, as well as current, employees from testifying to congressional committees. Though the administration has tried to use immunity as a “trump card,” she wrote, it “should, at most, be a raincheck, and not the lifetime pass that (Department of Justice) proposes.”
The Trump administration has said it will appeal that November decision to the US Court of Appeals for the District of Columbia. The next step, after a hearing and decision by that intermediate appeals court, would be the US Supreme Court.
And in the meantime, the judges have put temporary holds on McGahn’s testimony.
Such is the progression through the three-tier federal judiciary. And the adversarial process necessarily requires hearing from both sides at each stage, often in written briefs and oral arguments. Further, cases routinely test not only the merits of a dispute but also procedural matters, such as whether the person or group suing has legal “standing,” that is, some protected interest that could be rectified by a judge.
Long-running case on Trump’s businesses
Standing was an early point of contention in separate long-running litigation over whether Trump has violated a constitutional provision that forbids officials from accepting gifts or other financial benefits from foreign governments. In dispute would be profits from Trump’s hotels and businesses.
The US Court of Appeals for the District of Columbia Circuit will hear a lawsuit Monday that was first filed in June 2017 by congressional Democrats alleging that Trump has violated the Constitution’s emoluments clause. The case to be heard, still in an early phase of the litigation, and the other emolument lawsuits pending, may not be fully resolved by the end of 2020, as Trump’s term is ending.
To be sure, there have been times when federal judges sped up litigation. The Supreme Court resolved the Watergate tapes case within a matter of weeks in 1974. The dispute, US v. Nixon, was heard on July 8. The justices ruled on July 24 that President Richard Nixon had to turn over Oval Office tapes that incriminated him in the cover-up of a burglary of the Democratic National Committee headquarters at the Watergate building. (Nixon, who was facing likely House impeachment at the time, resigned on August 9.)
No such urgency in the current litigation has been pressed by lawyers for Trump or the House.
And more fundamentally, Trump’s lawyers say he has a right to be free of what they consider unprecedented congressional encroachments on his executive authority. His lawyers have asked to the Supreme Court curtail House oversight. In a separate dispute regarding Trump’s tax returns and other documents sought by a New York grand jury, his lawyers have asked the Supreme Court to rule that a President is immune from criminal investigation while in office.
Trump himself has tweeted about the Supreme Court possibly halting the impeachment inquiry.
That cannot happen. While courts may slow down investigators’ attempts to obtain evidence against the President, the House and Senate have “sole” responsibility regarding a presidential impeachment and conviction, according to the Constitution and Supreme Court precedent.
The House may impeach by a majority vote. The Senate then may convict, but only by a vote of two-thirds majority.
The President had a message about impeachment on Thursday, a message that is the opposite of his legal strategy:
Said Trump on Twitter: “If you are going to impeach me, do it now, fast.”