I am pretty cynical about the likelihood that the federal courts will be as helpful to the impeachment process this time around as they were during Watergate. But I also think that the House of Representatives is on firm constitutional footing to demand a lot of witness testimony, White House documents, and even possibly some grand jury testimony. With the potential exception of Clarence Thomas, I think even the conservative Roberts Court will generally side against the administration in these matters. Of course, I could be wrong.
The most important thing, I think, is that the courts recognize the need for speed. I’m somewhat hopeful on this front, too. The way Trump is acting is creating a genuine sense of national crisis, and since the key issue here is whether he should be allowed to remain in office, it’s hard to see how delay makes any sense.
Greg Sargent sounds hopeful, too, and he’s provided a bit of a road map on some of the legal issues. The problem is that even his optimistic scenario doesn’t sound good enough to me:
To be clear, the “when” question is a big and important one. It is possible, [Stephen] Vladeck [a law professor at the University of Texas at Austin] says, that all this doesn’t get resolved by the Supreme Court until after the election. But it’s also plausible that it might get resolved a lot more quickly — say, by summer, or spring, or even sooner.
After all, Democrats can argue that the very subject matter of their impeachment inquiry has direct bearing on the 2020 election, and even suggests Trump is prepared to engage in brazen, bottomless corruption to prevent it from being a fair one — which should prompt the courts to resolve this well before then.
I’ve seen it reported that the House Democrats have a goal of wrapping up their impeachment process before the Thanksgiving recess. That may be a too aggressive timeline and it seems like it would certainly require a narrowly focused set of impeachment articles. But there’s no good reason why they shouldn’t be able to get decisions on documents and witness testimony before then. What they need is for all these issues to be consolidated in one court room under one judge. And they need the appeals process to be super expedited.
What I wonder, however, is what will happen if the Trump administration refuses to cooperate even after losing all appeals, including at the Supreme Court. In a sense, this could be the best hope for convincing Senate Republicans to convict. But if they won’t, then things will really get broken.
I’m not sure delay is the Republicans best option here anyway. Trump’s behavior is the best advertisement for impeachment, and the longer this goes on the more intolerable it is going to be for everyone, including anyone trying to make excuses for the president. If they intend to acquit him in the Senate, they should tell him not to fight everything to the death in court. They want to hear the case as soon as possible.
But that presumes that providing the documents and testimony won’t make an acquittal untenable for Republican senators. Stonewalling may be the only option.
Maybe the Supreme Court will protect Trump from having to make the most damaging disclosures and the public will grow impatient with the whole process and demand it be dropped in favor of an election.
I don’t think this last scenario is all that likely, mainly because Trump demonstrates his mental instability so unmistakably now that it simply cannot be ignored.
This is why the decision to open an impeachment inquiry—with the public support of a majority of the House and virtually the entire Democratic caucus was such a good political/organizing decision. (Note: it helps that it came after an increasingly vocal campaign in Democratic districts across the country this summer.)
It’s a classic “dilemma action”: No matter what Trump does in response, it weakens him.
If he stonewalls, there’s a steady drip, drip, drip, of subpoenas, revelations, and hearings…and stonewalling (ignoring subpoenas, etc.) is further evidence of impeachable conduct.
If he stands on the White House lawn and shouts, “I did it, and I’m proud of it!”, it’s another impeachable offense, and another reason to expand the investigation.
If he complies with Congressional subpoenas, then there’s a flood of revelations, testimonies, and hearings about multiple impeachable offenses.
If Republican judges back him up, it’s just a variation on the “stonewall” scenario…with the same outcome.
If Republican judges support Congress, it’s a variation on the “flood” scenario…with the added authority of the Republican-controlled courts siding against him.
And in every scenario he’s got a fast-growing plurality of voters against him, which not only weakens his re-election chances next fall, but also puts growing pressure on Republican elected officials (not just Congress, but governors and state legislators, as well as city and county officials) to distance themselves from Trump.
As long as Democrats keep pressing forward together (much easier said than done), it’s hard to see how they lose.
As this plays out, the more I see the wisdom of the decision to keep the process narrowly focused.
Der Trumper has apparently decided his “defense” will be that seeking foreign electoral aid to help defeat one’s (Democratic) opponents is “beautiful”, “perfect” and “nice”, and no longer needs to be hidden on highly classified servers, since he just called for China to investigate Biden over some imagined past outrage. In other words, this is the new norm for our failing “democracy”. The smarter Repubs are out there saying that what Trumper has done (is doing?) might be “wrong”, but not impeachable. Presumably this does not mean that Dem prez candidates can begin to carry out the same behavior, of course.
One would think the conventional wisdom to be that the closer one gets to the 2020 election, the easier it is for the Gravedigger of Democracy and his faction to vote to acquit and say “Let the people decide”. It’s rather clear that no amount of Trumperian mental derangement weighs upon Repubs, elected or otherwise. The elected ones know their Frankenstein monster won’t countenance their abandoning the “conservative” Fuhrer.
As for Roberts Repubs, they clearly aren’t much concerned with the good of the nation or its democratic processes. It’s difficult to tell how promptly the lower courts would handle any subpoena power cases, although the National Trumpalist DOJ lawyers have so far attempted to get Roberts’ Repubs involved as soon as possible if any ruling goes against Der Trumper. The “conservative” law brigades are poised to argue that since there is no mention in the Constitution of oversight of the executive by Congress, the existing precedents that recognize such a power are erroneous and “we need to return to the Intent of the Founders”(tm). This will be an attractive argument to authoritarian “conservative” judges, who have long despised the Congress. A (democratically illegitimate) 5-4 ruling along these lines is very possible.
I suppose Roberts’ Repubs might have some slight concern that enough radical “conservative” rulings might galvanize an (unlikely) Dem-controlled gub’mint to alter the size of the Court after voting out the filibuster, but that would be hitting an inside straight, and likely would be seen as equally “radical!” by about 75% of Americans—who will convince themselves that living with an illegitimate “conservative” Court majority for another 30 years is another example of The Genius of The Founders and their Infallible Constitution.
It is so far from infallible and damn near impossible to fix.Such genius.
The head fake here could be Trump publicly admitting he asked China to investigate the Bidens so as to throw the democrats off the trail leading to that locked down server housing classified material. We already know they’ve been putting documentation in there that is not classified in order to hide it. Sure, Trump admitted he asked the Chinese to help him with his scheme, but I can just imagine the detail of what was actually said in the call is far more damning than Trump’s public admission.
The House Intel committee, if they haven’t already, needs to subpoena that server and access to the documentation Trump and company put in there.
Agent Orange will fight every subpoena or demand for someone somehow connected to testify with the power of 11 rabid honey badgers. This will drag everything out well into the election season. He thinks he can win the election, so dragging this out will only serve to make him a more sympathetic figure in his mind.
He could try pulling a BoJo and suspending Congress when they get around to really going after him. Gosh, I hope not. Would our Democratic House members be physically brave enough to run a police cordon around the Capitol?