Federal Courts and Nominations

OP-ED: The Supreme Court Has the Power to Expedite Impeachment Cases

Failure to do so would be a gift to Donald Trump.

Last week, the House impeachment inquiry secured a victory when D.C. District Court Judge Ketanji Brown Jackson held that former White House counsel Don McGahn must testify before the House about President Donald Trump’s efforts to obstruct special counsel Robert Mueller’s investigation. Jackson’s ruling is being appealed to the D.C. Circuit Court, but the victory is just the latest for the House’s efforts to obtain information relevant to its oversight and impeachment authority in the face of an attempted presidential blockade.

Some commentators, though, have been skeptical that Jackson’s ruling and others like it will ultimately matter in the face of potentially lengthy appellate processes. One journalist, for example, has observed that “time is on Mr. Trump’s side.” By getting these decisions put on hold while appeals are pending, Trump can stonewall investigators to the point that, even if the Supreme Court ultimately agrees with these lower court decisions, those rulings will come too late to matter.

The concern may be particularly great with respect to any testimony by McGahn—and other relevant impeachment witnesses like Mick Mulvaney and John Bolton—because of the prospect that there may be additional litigation even after the current case is resolved. The current case is about the question of whether former top White House officials enjoy absolute immunity from “being compelled to testify before Congress if the President orders them not to do so.” The district court said, very firmly, no. But even if the D.C. Circuit and Supreme Court agree in time to take part in impeachment or oversight efforts, McGahn may go before Congress and simply refuse to answer any questions, necessitating additional litigation.

The Supreme Court can move as fast as it wants, when it wants.

Fortunately, for the House—and for those who believe that Congress’ oversight and impeachment authorities are critical to our nation’s system of checks and balances—the answer is simple. Federal courts—including the Supreme Court—have the power to expedite cases relevant to the impeachment inquiry in time for the results to matter to House investigators. And the consequences of any failure to do so will be significant—not only for the current impeachment inquiry, but also for efforts to hold future presidents accountable to the rule of law. After all, the Framers included impeachment in the Constitution to ensure that the people’s representatives can remove an official whose continuance in office would be a danger to the republic. If the courts—and particularly the Supreme Court—were to allow the president to run out the clock and thereby deny Congress the information it needs to perform its vital constitutional role, it would send a dangerous message not only to this president but to future presidents as well, about the practical availability of this important check in our constitutional system.

Some of the Trump oversight fights themselves provide evidence that the wheels of justice need not always move slowly. For example, in mid-September, Trump sued the Manhattan district attorney to try to stop him from subpoenaing his tax returns. Just two months later, that case is already in front of the Supreme Court. The federal district court dismissed the complaint in under three weeks, and the U.S. Court of Appeals for the 2nd Circuit ordered briefing, held oral argument, and affirmed the district court’s decision in less than a month. Trump’s lawyers and the Manhattan District Attorney’s Office have both already filed briefs with the Supreme Court on the question of whether the court should hear the case, and the Supreme Court is expected to decide that question later this month.

Another fight involving the president’s efforts to keep his financial records secret has taken only slightly longer to make its way to the Supreme Court: In April, Trump sued to try to prevent his accounting firm Mazars from complying with a House subpoena seeking accounting records related to the president and his businesses. In that case too, the lower courts gave the House relatively quick victories, and Trump’s personal lawyers have already asked the Supreme Court to put those decisions on hold. They will be formally asking the court to hear the case later this week. A decision on whether—and how quickly—to take the case is likely coming this month.

The Supreme Court itself also need not wait until next summer to decide these cases, as it might under an ordinary schedule. For starters, the Supreme Court doesn’t need to hold oral argument in all of these cases; it could decide that the legal questions they present don’t warrant the court’s review and simply let the lower court decisions stand. After all, these cases may be political blockbusters, but they’re not legal ones. The lower court decisions that are coming before the court right now don’t present the sort of cases that the court most often hears—cases that present significant legal questions on which the lower courts are divided.

But even assuming the court decides to hold oral argument in one or more of these cases, the court can decide them quickly—and it should. Indeed, there are numerous examples in the court’s history of quick decisions—sometimes even in weeks—when the circumstances necessitated them.

Perhaps the most famous example is United States v. Nixon, a case that is particularly relevant to these oversight and impeachment cases because it was about whether President Richard Nixon should have to release the Watergate tapes against the backdrop of an ongoing impeachment process. In that case, a cert petition was filed on May 24, the Supreme Court held oral argument on July 8, and just two weeks later, on July 24, the court announced that Nixon had to turn over the tapes. Less than a month later, Nixon resigned from office.

And in Bush v. Gore, the Supreme Court decided not one but two cases arising out of the Florida recount in the 2000 election in roughly three weeks between Thanksgiving and Christmas. To be sure, the court’s expedition made sense there; the fate of the presidential election hung in the balance. But with Congress currently deciding whether Trump has so abused the powers of his office that his continuance in office is a danger to the republic, it is no less urgent that the House be able to obtain the information and testimony that it needs to make that determination.

In Dames & Moore v. Regan, which concerned President Jimmy Carter’s decision to freeze Iranian assets in response to the Iran hostage crisis, a cert petition was filed on June 10, 1981, the court held argument on June 24, and the case was decided on July 2. And in New York Times Co. v. United States, the court concluded that newspapers could publish excerpts of the Pentagon Papers just four days after it held oral argument and six days after the cert petition was filed. So much for the complaint that the wheels of justice always move slowly.

There’s a powerful rejoinder to the worry that these significant oversight and impeachment cases will linger too long in the courts to be of any relevance: The Supreme Court can move as fast as it wants, when it wants. As the impeachment process moves rapidly in Congress, and the White House’s strategy in response appears to be to stonewall and delay, the courts would be failing justice if they facilitated Trump’s strategy and thereby denied the political branches information they needed and were entitled to have. History makes clear that the courts can do better than that—and they must.

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