In an earlier post, I outlined how the Republican party currently denies Democrats any political legitimacy. Trump and the GOP are, in a far more subtle way, taking the same approach with our judicial system, using a variety of tactics to inoculate themselves from oversight and restraint. Those tactics can involve any combination of delay, deceit, and defiance.
One method for neutering the judicial system that the Trump administration particularly favors is to stake out a maximalist position and then litigate the issue for as long as possible. When that effort reaches its completion, usually failure, the administration then stakes out a slightly less maximalist position and the whole process begins again. It is just one long delaying tactic.
It is a pretty sad commentary on the current state of the our democracy that a judicial opinion in this day and age still needs to simply state “the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings” and that “absolute immunity from compelled congressional process simply does not exist”. If either of those statements were somehow not true, then we wouldn’t really have much of a democracy undergirded by the rule of law. Yet Trump and his administration challenge these core constitutional principles so regularly and so brazenly that this opinion is considered more than just an affirmation of those principles but a strong rebuke to the President.
While the court’s decision declared that former White House Counsel Don McGahn must appear before Congress in response to a subpoena, the reality is that he is no closer to actually testifying than he was before this decision was announced. The court’s decision also provides a definitive answer to National Security Adviser John Bolton or his deputy Charles Kupperman who are also looking for guidance from the courts about the power of Trump’s claim of absolute immunity for his top advisers. But, like McGahn, they too are no closer to actually testifying to Congress, as are all the other fact witnesses who have refused to testify in various congressional investigations under the nonexistent theory of absolute immunity.
McGahn has already filed his appeal to the DC Circuit Court and whatever decision that court produces will surely be appealed to the Supreme Court. That process could take a few months if the courts expedite the process because the subpoena is part of the impeachment inquiry. On the other hand, it could take far longer if the courts decide to move less expeditiously. In either case, whenever McGahn is forced to appear to testify, he will probably refuse to answer questions relative to the impeachment inquiry because either he will claim or Trump will provide the broadest interpretation of executive privilege possible. If the House wants to contest those claims of privilege, it will be forced into yet another long round of litigation, again delaying McGahn’s testimony for months. Even if that testimony is finally compelled before the 2020 election, which is already highly unlikely, you can be sure that Trump will find some other delaying tactic that will not allow that to happen.
As poor and minority communities across the country well know, the judicial system often has no relation to justice. The McGahn case is instructive in how the rich and powerful area able to basically abuse the judicial system in order to delay justice rather than deliver it. The Mueller report was released in mid-April and the House Judiciary Committee subpoenaed McGahn later that month. The Committee then scheduled a hearing for McGhan’s testimony in the third week of May, at which point the White House blocked that testimony on the fictional theory of “absolute immunity”. After a few weeks of fruitlessly negotiating to somehow obtain McGahn’s testimony, in early August, the Committee started the lawsuit against McGahn that was finally initially adjudicated this week.
Even under a fast-tracked process, the full DC Circuit Court will not even begin hearing oral arguments in the appeal until January 3rd of next year. Even if the Court moved extremely expeditiously, a decision is not likely before the end of that month. And then that process would be repeated again when the Supreme Court takes up the almost certain appeal of that decision. What this all means that it will probably have taken a whole year from when the House subpoenaed McGahn until he will finally be forced to appear. Considering that a Congressional term last only 22 months until the next election, it is an absurdity of our current system that over half that time will be spent trying to get a fact witness to simply appear before a committee, even if just to invoke executive privilege, especially a committee exercising the most formidable of congressional powers, impeachment.
It appears, however, that Democrats involved in the impeachment process may have a plan to deal with the legal foot-dragging and noncompliance with valid subpoenas by so many administration witnesses under the now judicially discredited theory of absolute immunity. The plan would be to call these witnesses in the Senate trial portion of the impeachment process, rather than fighting a never-ending battle in court. By moving during the Senate trial, Democrats would get an almost immediate ruling from Chief Justice John Roberts, who will be presiding over the process, on whether the witnesses’ testimony can be compelled. Adam Schiff hinted at this tactic in at least two recent interviews, saying, “But I do think that when it comes to documents and witnesses, that if it comes to a trial, and again we’re getting far down the road here, that the Chief Justice will have to make a decision on requests for witnesses and documents”.
Of course, having to rely on John Roberts is probably not the option that any Democrat would choose. Nor does this tactic help with other congressional investigations not directly related to the impeachment inquiry, such as how the administration decided to add the citizenship question to the Census. But the legal case challenging the Trump administration’s effort to add the citizenship question is illustrative of another way in which the administration shows its contempt for the judiciary, simply by lying in its representations in court.
In the end, the Supreme Court struck down the addition of the citizenship question, with Roberts providing the crucial vote and declaring the pretext for adding the question had been “contrived”. But an investigation by the House Oversight Committee has unearthed unequivocal evidence that administration officials lied in their depositions in the legal case, lies that were presented as fact to the Supreme Court. As Slate summarized, “Put simply, [administration officials] Gore and Neuman illicitly concealed at least two key pieces of evidence from the plaintiffs. The Justice Department then exploited these illegitimate omissions to deny Hofeller’s involvement before the Supreme Court. And the DOJ came one vote away from succeeding in what the ACLU decried as a ‘fraud on the court’”.
The fraud behind the citizenship question, just like the Ukraine extortion, was another instance where “everyone was in the loop”, as Sondland succinctly put it. The original push for the question came from Kris Kobach, who was part of the fraudulent Election Integrity Commission, having been recommended for that position by senior Trump adviser Steve Bannon. Commerce Secretary Wilbur Ross pushed hard for the question to be added and Jeff Sessions’ intervention to get the DOJ to say the question would help in the enforcement of the Voting Rights Act was the critical and contrived pretext. Staffers at both Commerce and DOJ were well aware of what the administration was trying to do. And everyone understood that adding the question would hurt Democrats in redistricting after the Census. Like Ukraine, this was just another Republican attempt to rig future elections, those in the coming decade. And they were willing to lie to the Supreme Court to get it done.
As the country and the courts became aware of the Trump administration’s family separation policy in May, 2018, the government rather incredibly attested in federal court that the policy simply did not exist. That was a lie. Subsequent evidence revealed that, despite the government’s representation to a federal judge, the policy was in place from July to November of 2017, resulting in untold number of separated children because there was no process in place to keep track of them. As the federal judge noted, that evidence “stands in stark contrast to Defendants’ representations in this case in as late as May of 2018 that the government did not have either a policy or practice of separating families at the border”.
When the Supreme Court finally ruled that the citizenship question could not be added to the Census, Trump actually floated the idea of defying the Court, using an executive order to add the question. Pundits worried that such an action would provoke a constitutional crisis. But the fact of the matter is that the Trump administration has defied the courts on multiple occasions, only ceasing their illegal activity when they are caught. In July 2017, HHS suddenly illegally suspended all grants for the Teen Pregnancy Prevention Program (TPPP). In response, four federal lawsuits were filed that challenged the legality of that suspension. In the spring of 2018, federal judges in all four cases ruled the suspension illegal and ordered the original grants to be reinstated. Yet, the very next day after the first ruling in those cases, the administration attempted to repurpose the TPPP grants for abstinence-only programs. Besides violating the order on the original grants, federal courts also subsequently ruled the repurposing of those grants also violated the congressionally mandated requirement for evidence-based health programs.
Similarly, over 900 immigrant children were separated from their families after a court ordered the administration to cease that policy. Using a loophole designed to protect children in potential danger, the Trump administration continued the family separation policy long after a federal judge ordered the policy to cease in June, 2018. The ACLU filed suit against DHS for defying the courts aby abusing this loophole and the case is still being heard.
Finally, as with the attack on the legitimacy of Democratic political power, defiance of the courts is not limited to the Trump administration but also exists in Republican controlled states. In Alaska, in 2014, a federal court found the state’s same-sex marriage ban unconstitutional. In 2015, the Supreme Court’s Obergefell decision declared that same-sex marriages must be recognized by all states and given the same rights and privileges as marriages between a man and a woman. It appears, however, that Alaska maintained a policy that denied the benefit of the state’s oil dividend to same sex partners of Alaska residents who joined their spouse while outside the state on military duty. That benefit was provided to spouses in marriages between a man and a woman who were in a similar situation. The reason the state provided for the benefit denial, both verbally and in documents stating the dividend’s eligibility requirements, was that the state did not recognize same sex marriages. That policy stood as a pretty blatant defiance of the Obergefell decision and subsequent court rulings that affirmed all marriage benefits must also apply to same sex couples.
Worse, when an out of state same sex partner challenged this policy, the state’s Attorney General lied to the court hearing the case, declaring that the benefit denial was simply a clerical error and did not actually represent any state policy. That declaration is belied by the state’s written policy for benefits, verbal explanations of benefit eligibility to those being denied, and now whistleblower testimony that the policy to deny the benefit to same sex spouses remained in place from 2014 to present. That would mean that the state was not only in violation of the original 2014 ruling by a federal judge but also the 2015 decision by the full Supreme Court.
Obviously, Mitch McConnell has spent all of Trump’s term stuffing the courts with Federalist Society hacks. Certainly, Trump presumed that his two appointments to the Supreme Court would create somewhat of a rubber stamp for his policies. But the Trump administration, as well as certain red states, fall back to the tactics of delay, deceive, and defy when courts actually do rule against them. The delaying tactics certainly impaired the Mueller probe until Barr could effectively neuter it and are currently hampering the impeachment inquiry. Trump associates and administration officials have shown no reluctance in going up to Capitol Hill and lying under oath to Congress. Similarly, administration lawyers have shown a willingness to lie to the courts, even the Supreme Court, in cases important to Trump. The last line of defense against court rulings not in their favor is defiance. Contrary to what we are led to believe, the Trump administration has already defied the courts on multiple occasions. It’s just that the defiance is over issues that are perhaps less prominent and the administration simply backs down when caught. That may change with rulings involving impeachment. Trump has already publicly declared his willingness to defy the Supreme Court in the Census case and his administration has shown that it will find a way to defy the courts when it wants to. A ruling on Trump’s taxes or requiring testimony of senior advisers may bring the slow motion constitutional crisis we have been living with since Trump fired Comey to a head.
Originally published at https://thesoundings.com on November 30, 2019.