June 12, 2019
Judicial Review of Trump’s Efforts to Block Congressional Investigations
Arius A. Aardvark
Remarks to the Happy Acres Progressives
Good afternoon. My topic is judicial review of Trump’s efforts to block congressional investigation of his misconduct or alleged misconduct.
By one count, there are at least twenty ongoing congressional investigations at issue. The number of people and entities receiving demands for information runs into the hundreds. Each of these hundreds of information demands could generate a lawsuit—given Trump’s blanket objection to investigation by the House of Representatives. And, as you know, some lawsuits have already been started. And a House resolution, passed a couple of days ago, clarifies the right of individual House committees to bring these cases.
To be a little more specific about the kinds of things that the House of Representatives is investigating:
One. The Mueller Report has teed up the question of whether Trump’s obstruction of justice merits impeachment. Attorney General Barr says there is no prosecutable case for obstruction. Over a thousand former federal prosecutors have said there isa case. Who’s right? And, regardless of criminal legal technicalities, does Trump’s obstructive conduct merit his removal from office? And, does the House have the right to pursue and expose Trump’s obstructive conduct, even if it chooses not to pursue impeachment?
Two. On the question of Trump’s cooperation in Russia’s efforts to get him elected, Mueller found there was insufficient evidence of criminal conduct by Trump and his campaign. But that conclusion arose in part from the success of the obstruction of justice. Lots of questions remain about Russian interference in 2016, and what should be done legislatively to address the issue going forward.
Three. Mueller chose not to address counterintelligence matters, including whether the Russians have some hold over Trump, and whether he is a witting or unwitting tool of Russian intelligence. Ditto the question of whether the Saudis, or other bad actors, have a hold on Trump, either through financial dealings or through blackmail.
Four. There are a variety of inquiries about misuse of presidential powers to enrich himself, including questions about violations of the Emoluments Clause.
Five. There are grave issues about the conduct of foreign policy, notably the highly suspicious secrecy of Trump’s repeated meetings with Putin.
Six. There are House investigations of a more conventional nature, involving development of public policies, for example, on family separation, Puerto Rico aid, Obamacare repeal, and the declaration of a national emergency over the border wall. Just today, Trump has asserted executive privilege to try to block inquiry about the citizenship question in the 2020 Census.
And Seven. There are a variety of miscellaneous questions, including violation of the statute permitting Congress to demand Trump’s tax returns, impropriety in the granting of security clearances, and other matters.
Procedure and Substance
Today, I want to emphasize issues of substance over issues of procedure. But I’ll say just a few words about procedural matters. First, many procedural issues are complex and controversial, especially as concerns Congress’s power to hold a witness in contempt. But an alternative, and procedurally straightforward, way for Congress to act is to bring a lawsuit in federal court demanding that a witness comply with a subpoena. If the witness defies a court order, then she may be punished for contempt of court.
Another scenario arises where a witness is willing to comply with a subpoena, but Trump files a lawsuit in federal district court to block compliance. In recent days, Trump has lost two such cases—a case in Washington, DC, involving a subpoena to his accountants and a case in New York about subpoenas to his lenders, Deutsche Bank and Capital One. Both cases are on appeal. The appeals are fast tracked in both federal courts, and both of them will probably issue rulings about six or seven weeks from now.
If Trump loses these two cases in the appellate courts, as I believe he will, then an emergency appeal from the D.C. court would go first to Chief Justice Roberts, and an emergency appeal from the court in New York would go to Justice Ruth Bader Ginsburg. Trump would request a stay of the orders for his accountants and lenders to comply with congressional subpoenas.
As I said, all this will probably happen around the beginning of July, when the Supreme Court is on summer break till the end of September. But Chief Justice Roberts and Justice Ginsburg will confer with their colleagues by phone and email. Meanwhile, even though the Court is on summer recess, Trump can go ahead and submit the paperwork asking the Court to take the appeal and hear the case—that’s, issue a writ of certiorari, in lawyer speak. Probably, the Court will formally decide whether to take the take the appeal at a conference on September 29. But they can and will confer informally over the summer.
Bottom line: if at least four justices want to hear Trump’s appeal, then the Supreme Court will probably postpone compliance with the subpoenas until the case is briefed, argued, and decided on the merits—maybe around Christmas this year. On the other hand, if at least six out of the nine justices want to let the lower court rulings stand without further Supreme Court action, then the Court will probably deny the stay, and the subpoenas will become enforceable sometime in August or September.
I’m going to turn now to the substantive rules that apply to judicial refereeing of controversies over the limits of Congress’s ability to investigate the President and exercise general oversight over the executive branch. Please remember that these are judge-made rules, and the Supreme Court can unmake them, provided any five justices act together.
Any five justices could accomplish that goal by specifically declaring that such and such an earlier case was wrongly decided. Or, if so inclined, they could deliberately distort, misread, and fail to follow binding precedent, so as to give Trump a break.
[Discuss handout on substantive principles]
The handout we have just been discussing is available online at my political blog, trumpedprogressives.com, as will a copy of this talk.
Having looked at what the legal rules are—unless and until five Supreme Court justices decide to change them—I want to do a thought experiment in the form of a role playing exercise. Here it is.
Assume my blogging alter ego—Arius A. Aardvark, Esq.—has been retained by President Trump to give a second opinion on how likely Trump is to succeed in his effort to block all congressional investigations.
With that scenario now in mind, attorney Aardvark speaks.
Good afternoon, Mr. President. I understand that you would like a fresh legal perspective on the legal issues surrounding your effort to avoid all congressional oversight and fact finding and to hide any information that might damage your chances for reelection or put you in legal jeopardy. I am honored to serve you, and thank you for advance payment of my substantial retainer. My bank has just now confirmed that your check has cleared.
Mr. President, now that my fee is in the bank, I am on your side, and I am here to help you protect your interests. But achieving these goals requires that I be candid and blunt. I am bound to give you as objective an account of the strengths and weaknesses of your case as I possibly can give. I hope you understand that.
Mr. President, consistent with your direction to your legal team to, and I quote, “oppose all the subpoenas,” end quote, your lawyers have vigorously argued that you are not legally obligated to cooperate with any of the ongoing House investigations.
To support that claim, your attorneys have been compelled to take legal positions that are contrary the relevant Supreme Court and other precedents—and that would alter, in a profound and consequential way, our understanding of constitutional separation of power.
Your lawyers have argued that Congress has no power to investigate you, because Article I of the Constitution gives Congress no such power. But, time and again, the courts have rejected that position, ruling instead that the implied power to investigate flows from the powers specific in the Constitution, including the power to legislate, appropriate, and impeach.
Your lawyers have argued that political motivations on the part of House Democrats justify your non-compliance with demands for information. But, time and time again, courts have rejected that argument, too. Instead, current, well-established case law says that where an investigation has a logical relationship to a power that Congress could exercise, then the courts will refuse to second-guess Congress by examining the alleged motivations or biases of particular congressmen.
Now, Mr. President, there is a metaphysical possibility that your legal team can persuade five Supreme Court justices to change these rules, or just to disregard them. I make no predictions in that regard. But I do say this: in my professional judgment, it would be highly imprudent for you to plan your affairs on the expectation that a majority of the Supreme Court will fundamentally reorder the scheme of constitutional checks and balances, in order to meet your personal legal and political needs.
Let me say just a little more about why I reach this conclusion. It’s not based on any judgement, positive or negative, about the moral character of the five Federalist Society justices, including the two you appointed. Instead, I rely on these considerations.
First, the Federalist Society is the Federalist Society, not the Divine Right of Kings Society or the Autocratic Rule Society.
Second, the Federalist Society—which coopted you to appoint judges they selected—is not founded on loyalty to you as an individual, but rather on loyalty to its donors, such as the Koch Brothers and the United States Chamber of Commerce, and to the class of society whose interests they represent.
The Federalist Society may have a short-term interest in helping you to get reelected—provided that goal is feasible at all—but they also have a long-term interest in refashioning our legal system in a way that protects rich people and keeps them rich. These interests may conflict, because rulings that are too obviously biased might tend to rob the Supreme Court of its remaining legitimacy.
And, do please remember that these are judges for life. Unlike Republican senators, these folks don’t have to worry at all about the next election. And if you ever launch a nasty tweetstorm against them, all it’s going to do is to royally piss them off.
All that said, you probably have some Supreme Court justices who would love to call the balls and strikes in your favor. But, as I will explain in a moment, they need your help to be able to rule in your favor without too much embarrassment.
Now I want to give an overview of the legal rules. And, for clarity, I want to divide the multiple House of Representatives investigations into two broad categories.
The first of these are investigations about matters of public policy, such as your family separation policy, your emergency declaration on the border wall, the citizenship question in the Census form, and a number of other issues of policy.
The second category of investigations relate to your personal conduct, including allegedly improper conduct with the Russians, obstruction of justice, and violation of the Emoluments Clause.
I turn now to the first general category: investigations relating to public policy. As I have said, dispositive case law tells us that all these areas are appropriate subjects for congressional investigation. Thus, any blanket objection on your part is unlikely to succeed. That said, you have asserted “executive privilege” in connection with these public policy issues, and there may be a certain validity to your arguments.
The law on “executive privilege” is relatively sparse and undeveloped, but the cases we do have tell us that it applies to communications directly between you and your staff, and maybe a little further—for example, to a draft memo for you prepared by someone who reports to one of your aides.
Let me give an example. The Democrats are looking for some hypothetical document or conversation in which you say, in words or substance, “I am all in favor of torturing little Hispanic kids, and I don’t care a whit about basic human decency if I can keep those brown skinned people out of our country.” If they found such a hypothetical communication, they would seize on it for political gain, they might seize on it to justify new legislation, and they might add it to a laundry list of so-called impeachable offenses.
The cases recognize a limited executive privilege, but they also recognize the right of Congress to investigate how the laws are being applied and enforced. So, there’s a clash of competing principles.
The courts have the power to referee these kinds of clashes between Congress’s right to investigate and the President’s right to confidentiality. But it’s hard to find a principled way to resolve the conflict, and the courts would much rather dodge the issue and encourage the two sides to work out an ad hoc compromise. Where that doesn’t work, in the end, the courts will have to weigh and balance the two sides’ interests against one another. And, since there is no coherent way to do that, the courts will do it in ways that are unpredictable and incoherent.
All that may get you some legal mileage on the public policy investigations. But, all that said, if anyone has said that you have absolute and unquestioned power to assert executive privilege, then they have told you a lie, and it would be very unwise of you to believe them.
And one more point. Based on existing, yet sparse, case law, I think you have a pretty strong case to invoke executive privilege to prevent disclosure of communications with foreign leaders, including Mr. Putin, at least during your time in office. The Democrats will argue about the suspicious circumstances, and they might well win. But, at least, a judge inclined to give you a break could do that very thing without embarrassing herself, based on prior precedent.
Now, let me turn to all the other investigations—obstruction, Emoluments, the alleged possibility that you are comprised by blackmail material in the hands of various bad actors, etc. etc. As to these matters, my objective professional opinion is that your efforts to assert executive privilege are in deep doo-doo. (Subject to all the points I have made about Federalist Society justices) I think the courts are likely to rule that executive privilege does not apply to conduct before you were elected president, it does not protect criminal or fraudulent conduct, it’s subject to waiver, and you have in fact waived it in respect of the matters Mueller investigated.
Finally, insofar as any executive privilege remains, the cases still say that it may be overcome by a showing that the information sought is important evidence in a legitimate congressional investigation, and the information is not otherwise available to the investigator.
That’s executive privilege, and that’s the gist of what I have to say about it. But in the two pending cases—the ones about your accountants and your lenders—you and your lawyers have not asserted executive privilege. Nor could you have made a plausible claim of executive privilege.
What your lawyers have argued is that Congress has no legal right to investigate these matters in the first place. To be a little more specific, they have emphasized that a congressional investigation has to relate to a legitimate subject of possible legislative action. Now, Mr. President, the House of Representatives has the right to impeach you, which is analogous to a grand jury returning an indictment. And, in my judgment, it’s highly probable that the courts—including one or more of the Federalist Society justices—would hold that the House has a very broad power to investigate any alleged wrongdoing on your part.
However, your lawyers have argued that Speaker Pelosi has ruled out impeachment, that impeachment is not “on the table,” and that the courts should not consider possible impeachment when deciding on the permissible scope of current investigations.
Instead, they say the courts should apply the general principle that the House cannot investigate just for the sake of investigating, and that it has no general power to expose just for the sake of exposure. Now, from that point on, your lawyers’ arguments go deep into the legal weeds, and I don’t think it’s useful, in this discussion, to follow them down every single legal rabbit hole. Let’s keep focusing on the big picture.
My bottom line: I wasn’t impressed at all with the legal job your lawyers did for you before the district courts, but now that the accountant case and the lender case are on appeal, your team seems to have added someone who knows how to write a legal brief—someone who really knows how to make the other side jump through every single hoop. So, score one for you.
On the other hand, even if we put impeachment to one side, in my professional judgment, Mr. President—despite the fine, fine job your lawyers have done in trying to hide the pea under the shell—they are, legally speaking, swimming upstream. They are trying to reverse more than a century of precedent and understanding about the wide scope of congressional power to inquire into wrongdoing. I do not believe they are going to persuade the federal appellate courts in New York or Washington.
And, when the cases get to the Supreme Court, ruling in your way is going to be a stretch for Chief Justice Roberts, and for Justices Alito, Gorsuch, Kavanaugh, and Thomas.
But, now, let me add yet another complication. I was going to compare your legal situation to three-dimensional chess. But, probably, an even better comparison is to the six blind men and the elephant. You remember: one blind man grabbed one of the elephant’s legs and thought he was holding a tree, the second grabbed the tail and thought it was a rope, and so forth, and so forth. Well, Mr. President, what I detect is a lot of people—of both political parties—who grasp one piece of the situation but cannot see it as a whole.
So, here’s the thing. I think the Democrats might well win even if impeachment is not “on the table.” But if they do choose to pass a resolution starting the impeachment process, I think they will improve their legal prospects, to a material degree. Now, Mr. President, I’m choosing my words very carefully, and I said “to a material degree.” By which I mean something like, “by enough so that a prudent, well counseled person, would conclude it’s enough to take into account.”
And, to be more specific, I think that if the House argues that it is seriously considering whether or not to impeach you, then it will be a whole lot more difficult for the five Federalist Society judges to find an excuse to rule in your favor, without fairly severe embarrassment.
And, don’t forget the time factor. If the courts pretend the case isn’t about impeachment, then those of them who are inclined to slow walk the proceedings can likely get away with it. Where’s the fire? What’s the big hurry if the House has to wait till 2020 before getting to see your accountant’s documents? But if impeachment is“on the table,” things could look quite different.
At least that’s how I see it. I freely admit that the situation is fluid and complex, and it’s very hard to know what will happen. But, Mr. President, my name is Arius Aardvark, not Rosy Scenario. I owe you my best candid professional judgment, and that is what I have given.
At this point, many on your team seem to be goading the Democrats to go down the impeachment road. Sometimes, you seem to be thinking along the same lines—the underlying assumption being that the Democrats would be committing the same political mistake the Republicans made against Clinton. Now, personally, I think that political analysis may be unsound, but that’s largely outside my scope of expertise, so I don’t express an opinion.
What I do say is that if there is really bad stuff you want to hide from the Democrats—hopefully, for all time, but certainly past November, 2020—then, in my professional judgment, it would be highly imprudent of you to goad the Democrats to impeach you. Because, to repeat, if the Democrats say they are thinking about impeaching you, then they are materially more likely to get the underlying bad information, and materially more likely to get the bad facts on a fairly timely basis.
Now, if there’s no more bad stuff out there, then it’s no nevermind. Let the House impeach. Let you and the Republicans get whatever political benefit results from a failed effort to remove you from office.
On the other hand, if there really is lots of bad stuff still undiscovered, then you really need to think long and hard about a legal strategy that pushes the House toward impeachment.
Mr. President, it’s your call.
Have a nice day.