Running Out the Clock

running out the clock

I wish to make three points.

(1) “How Can He Do That?”

Title 26 of the United States Code, Section 6103, paragraph (f), subparagraph (1), states as follows:

Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives, the chairman of the Committee on Finance of the Senate, or the chairman of the Joint Committee on Taxation, the Secretary[of the Treasury]shall furnish such committee with any return or return information specified in such request, except that any return or return information which can be associated with, or otherwise identify, directly or indirectly, a particular taxpayer shall be furnished to such committee only when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure.

The language is unqualified: “shall furnish such committee with any return.”

Some people—invariably, they are people who have not had the misfortune of attending law school—find it hard to grasp that a statute does not enforce itself. “How can they just ignore the law?” these people ask, as if they were asking a rhetorical question with a clearly negative answer: they can’t.

In fact, laws, even clear laws, do not enforce themselves.

You ignore the law by ignoring the law. There may (or may not) be adverse consequences for your willful disobedience, but you “can” always ignore the law and see what happens.

(2) “They’re Going to Run Out the Clock”

There are lots of talking heads this morning who are rending their garments over their prediction that Trump and his enablers will just “run out the clock” through the 2020 election. That prediction may turn out to be accurate. But people should be aware that courts have very wide discretion to control the pace of litigation before them. Where she deems it prudent, a judge can order the case to move forward at a rapid clip.

Nor is this the first time in Anglo-American jurisprudence when someone has tried to run out the clock. Back in medieval times, this scenario would arise. John Doe and Richard Roe both claim title to the same piece of real estate. Richard Roe decides to create some “facts on the ground” by constructing a building on the disputed property. Doe sues, and Roe tries to delay the proceedings. For hundreds of years, courts have understood that kind of tactic and have developed means to deal with it.

And here’s a related point. It’s much easier to run out the clock if a case requires resolution of factual issues, and there is lots of evidence about the facts. But the issue of how to interpret and apply section 6103(f)(f) is mainly a matter of law.

The House of Representatives has a two-step legal position: first, the law is clear, and there is no implied requirement to demonstrate a proper legislative purpose”; and (2) if our first argument is wrong, then, guess what, we’ve got proper legislative purpose up the wazoo. As one pundit asks,

There’s no public interest in discovering who is paying the mobbed-up, money-hemorrhaging failed casino operator whose sons have described him as reliant on Russian financing? Do Republicans believe Trump’s financial secrets contain no signs of serious corruption or vulnerability to leverage by a hostile power? Or would they rather not know?

Whether the statute does or does not require “a proper legislative purpose” is a pure matter of law. There is a certain complexity about the precedents on the scope of Congress’s power to investigate, but briefing and arguing the issue is not something that should take months and months to do.

And if the district court decides that, despite its. language, the statute requires “a proper legislative purpose,” then I think the existence of such a proper purpose may be found by judicial notice.

(3) Donald, You Need to be Careful What You Wish For

Nancy Pelosi is plainly right that Trump is goading the House to initiate impeachment proceedings.

At the same time, Trump is, today, moving forward with a vast stonewalling operation.

But if Trump really wants to stonewall successfully—including running out the clock till 2020—then the last thing in the world he should want to do is successfully goad the House to start impeachment.

Now, it’s theoretically possible that Trump has understood this conflict, and is stonewalling for the very purpose of goading the House into impeachment.

But it’s much more likely that Trump is an idiot who thinks he can pursue two contradictory strategies at the same time.

riding two horses

What if Someone Just Ignores a Subpoena?

pollyanna

Last night Dr. Aardvark and I were sitting in connubial contentment watching the PBS Evening News when she asked, “What happens if someone just ignores a subpoena?” I am afraid that my top-of-the-head answer was not entirely complete or accurate.

These two posts provide lots of helpful insights into the question:

Philip Bump, How the Trump-Congress subpoena fight is likely to play out

Martin Longman, Congress Needs to Lock Up Non-Complying Witnesses

Pollyanna Speaks Again

The flavor of the day is gloom and doom over Trump’s ability just to stonewall and “run out the clock.” But I have talked this situation this over with my daughter, Polyanna Aardvark, and she has some helpful thoughts.

First, by signaling that he will oppose any and all subpoenas, Trump has weakened his ability to advance any plausible argument he may have that any particular subpoena suffers from some legal defect.

Second, stonewalling doesn’t make you look “strong.” It makes you look guilty.

The strategy will appeal to those who don’t care whether or not Trump has done this or that execrable act. And there are many such people. But, to those who were unsure, but might be inclined to give Trump the benefit of the doubt as to his wrongdoing—and there are lots of those folks, too—obstruction will not accrue to his advantage.

Third, Pollyanna’s sense is that the situation will be very strongly influenced by what Don McGahn decides to do, or not to do.

McGahn, the former White House Counsel, current six- or seven-figure Jones Day partner, and Mr. Pack-the-courts-with-rightwingers par excellence, sang like a canary to the Special Counsel. Any arguable executive privilege has long since been waived with respect to the topics about which he would testify to Congress. Any arguable attorney-client privilege, ditto.

Jones Day partners, upon receipt of a proper subpoena, do not tell the entity that issued the proper subpoena to go take a flying fuck. For one thing, if they did take that course of action, then the D.C. Bar Association would not take kindly to it.

Trump has already “punished” Jones Day by taking business away from it. He doesn’t really have a hold on McGahn or on Jones Day.

Pollyanna thinks it’s likely that McGahn will testify in public, reprising the role of John Dean—and of Martin Sheen playing John Deen in the movie.

She also thinks that Brett Kavanaugh, who owes his seat on the Court to McGahn, will sit up and take notice.

Finally, she thinks that, in the aftermath of the McGhan testimony, things are likely to really go pear shaped for the Trumpster.

I told Pollyanna that we are getting a little ahead of ourselves, but she might well be right.

In the immortal words of President Eisenhower, “The future lies ahead.”