by Dahlia Lithwick · November 5, 2019
Chief Justice John Roberts at Temple Emanu-El in New York City on Sept. 24.
Cindy Ord/Getty Images for the Temple Emanu-El Streicker Center
We’ve known for several weeks that John Roberts, as the presiding officer in any impeachment trial, is likely to have a major role in deciding the fate of Donald Trump’s presidency. The past few days, though, have crystallized just how significant a part the chief justice will play; not just in the Senate trial itself, but in determining what evidence House investigators will be able to collect even before there is a vote on whether or not to impeach Donald Trump.
A crush of lawsuits—determining everything from congressional and state investigators’ access to Trump’s financial records, to redacted evidence from the Mueller grand jury, to the House impeachment inquiry’s ability to obtain interviews with key witnesses—is about to hit the Supreme Court’s doorstep. In a series of appeals from those decisions, Roberts, alongside his colleagues, will have to decide whether to expend personal political capital and the court’s institutional credibility on helping to save Donald Trump’s skin. There’s every reason to think that Roberts—conservative, Republican, and lifelong believer in expansive executive power—is not going to want history to remember him as the guy who emptied the ashtrays of a carnival barker president. As he did in the census appeal last summer, Roberts will carry water for this president and this Justice Department, but only so far—and not at the cost of personal embarrassment or the degradation of the court. That will make his next couple of moves the most interesting show in Washington.
The most immediate issue that appears headed to the Supreme Court, sooner rather than later, is the question of Trump’s financial records. On Tuesday, Trump’s attorneys requested that the U.S. Court of Appeals for the District of Columbia Circuit grant a seven-day stay from a D.C. Circuit panel’s decision ordering the accounting firm Mazars USA to turn over the president’s financial records to House investigators. If the full circuit refuses a rehearing of that case, the president’s attorneys say they need the stay in order to file an appeal directly to the Supreme Court. If the full circuit or Roberts’ Supreme Court blocks Mazars from cooperating with the House Oversight Committee, even temporarily, it will likely allow Trump to run out the clock on open questions of financial misconduct.
That wasn’t even the only Mazars case that is rocketing straight toward John Roberts this week. On Monday, Trump was whacked by a federal appeals court in New York in a separate attempt to block the financial records from scrutiny. The 2nd U.S. Circuit Court of Appeals declined to take seriously Trump’s claim to have something his lawyer characterized at oral argument as “temporary absolute presidential immunity.” That ridiculous and historically dangerous argument boiled down to an assertion that the president is immune from every single phase of state criminal process while in office, including investigation. As part of a state probe into hush money payments made to Stormy Daniels, Manhattan District Attorney Cyrus Vance subpoenaed eight years of Trump’s tax and financial records from Mazars (the same records at issue in the D.C. Circuit case). Trump’s lawyer at oral argument cheerfully claimed that the president could not even be investigated for shooting someone on Fifth Avenue. The 2nd Circuit’s ruling avoids the question of Trump’s right to shoot someone on Fifth Avenue and simply holds that Mazar’s records are not subject to presidential immunity claims. “The subpoena at issue is directed not at the President, but to his accountants; compliance does not require the President to do anything at all,” Chief Judge Robert A. Katzmann wrote.
The next burning question is whether the Supreme Court will take either of these cases—causing a lengthy delay that will greatly benefit Trump—or defer to the lower court rulings and allow access to the records. Smart legal analysts like Paul Waldman and Harry Litman have suggested that this may be a good time for the high court to take a pass on hearing appeals that could set a dangerous precedent of placing the president above the law. In the New York litigation, Trump’s attorneys have 10 days in which to ask the Supreme Court to step in. Presumably, if the high court were to hear the case this term, a decision could come down by June, before the 2020 election but not before an impeachment proceeding.
Two related issues thus arise. The first one is whether the Supreme Court, and particularly Roberts, has any intention of wading in to save Donald Trump from public embarrassment—and potential criminal or constitutional exposure—over his financial situation. The second question is whether the courts have some sort of institutional responsibility to act quickly in these and other cases that are beginning to pile up. What will it do to the court’s credibility if Roberts opts to let his court play defense for this president based on Calvinball-grade legal arguments about shooting people in the street?
In regard to the lower courts, one might expect there to be some set of rules governing when and how the judicial branch decides to fast-track litigation with such major implications for our democracy and the rule of law. Harvard Law School constitutional scholar Laurence Tribe told me, however, that the decision to hasten or slow-walk vital litigation turns on nothing more than the temperament and preferences of individual district court and appeals court judges who happen to be assigned a case.
Some judges, in some instances, will feel little urgency to hasten the pace of litigation to conform to the impeachment timetable. U.S. District Judge Richard J. Leon, who presides over the request from former deputy national security adviser Charles Kupperman that the judicial branch decide whether he is “absolutely immune” from congressional subpoena in the impeachment inquiry, has set a final hearing in the matter for Dec. 10. Kupperman’s attorney also represents an even more critical witness in the Ukraine affair, John Bolton, and has suggested that the former national security adviser could be added to the lawsuit if he is subpoenaed. Tribe has argued that the decision not to dismiss Kupperman’s suit outright will needlessly serve to delay the impeachment process or prevent the House inquiry from hearing testimony from a critical witness. In a courtroom near to Leon’s, meanwhile, U.S. District Judge Ketanji Brown Jackson is presiding over a parallel lawsuit seeking to determine the Trump administration’s claim that former White House counsel Don McGahn cannot be compelled to testify before Congress. The House Judiciary Committee sued on Aug. 7 to enforce its April subpoena of McGahn, and the case only recently received a hearing. Even if both judges rule at lightning speeds—beyond the present delays—the Supreme Court might not opt to hear these cases this term. Even if they do, it would come too late for the House’s current impeachment timetable. Six White House and administration officials were meant to testify this week, meanwhile, and none are expected to appear.
As Nancy Cook noted in Politico, there are significant costs to allowing these questions to be slow-walked through the federal judiciary:
Involving a third body—the courts—in the impeachment inquiry could slow down Democrats’ momentum in influencing public opinion, calling witnesses and collecting evidence to determine whether the president improperly used his office to investigate a political rival ahead of the next presidential election.
Indeed, House Intelligence Committee Chairman Adam Schiff—who has stage-managed the public-facing Ukraine investigation—seems to have reconciled himself to simply forgoing critical evidence in the name of expeditiousness. “We are not willing to allow the White House to engage us in a lengthy game of rope-a-dope with the courts,” Schiff told reporters last month. Schiff also promised that congressional Democrats would deem failure to comply with subpoenas as permitting “adverse inference” against the president. That highly legalistic and jargony position, however, seems less likely to influence public opinion on impeachment than cold hard facts from witnesses. Which is exactly the point for the president and his defenders, judicial or otherwise. Running out the clock, plainly put, means controlling the public narrative.
In addition to all these cases, the Department of Justice on Tuesday also asked the D.C. Circuit to stay a ruling by Beryl Howell, the chief judge of the District Court for the District of Columbia, ordering that it turn over critical materials from the Mueller investigation’s grand jury to Congress. If the circuit won’t rehear the case, the DOJ wants a stay to go straight to the Supreme Court. That’s a whole lot of blanket claims, a whole lot of Nixonian logic, and a whole lot of shooting folks on Fifth Avenue wending its way through the dockets all at once.
Some or all of these cases will make their way to Roberts’ inbox in the coming days, weeks, and months. He will be forced to make hard decisions, not just about claims of an imperial presidency, but also about how much the Supreme Court wants to be seen carrying water for laughable legal arguments. For a chief justice who still maintains that there is no such thing as a Bush judge or an Obama judge, the stakes in terms of protecting his independent judiciary couldn’t be higher.
Donald Trump Impeachment John Roberts Judiciary Supreme Court
Slate · by Dahlia Lithwick · November 5, 2019