London is a retired partner for the law firm Paul, Weiss, Rifkind, Wharton & Garrison and the author of The Client Decides; he was a principal lawyer for Vice President Spiro Agnew.
The Trump Administration is clinging hard to hiding the full Mueller Report. Attorney General William Barr skipped his testimony before the House of Representatives and has refused to provide Congress the unredacted report. The President has claimed executive privilege over the whole thing. And private citizen Don McGahn says he will obey Trump, his former employer, and will refuse to comply with Congress’s subpoena.
What will become of all this maneuvering? The answer depends on judicial politicking and pace — as well as, perhaps, one sitting Supreme Court justice’s late mother.
Here’s what will undoubtedly happen next: The full House will hold Barr and McGahn in contempt of Congress; the U.S. Attorney, being Barr’s subordinate, will refuse to prosecute (which they almost always do, and if they did this time, Trump would pardon the defendant); and Congress would thus be left with one realistic remedy: seek a court order directing McGahn and Barr to testify and produce the subpoenaed documents. If Congress could win such an order, the respondents would obey or be guilty of civil contempt of court, and be subject to jail until they complied. Because that is not a criminal conviction, Trump would have no power to pardon. I’m guessing an orange jumpsuit does not flatter Barr, and he will fold.
This produces two questions.
First: Will the courts require compliance with the House subpoenas? Most lawyers who are not on Trump’s payroll agree that Trump’s claim of executive privilege is meritless, but…
Ah, the but. Let’s assume the District Court and the Court of Appeals each rule in favor of Congress. Then the case will go to the Supremes, where Trump may be playing on his home turf. After all, he has a majority of conservatives, two of whom are his appointees, Neil Gorsuch and Brett Kavanaugh — and the latter’s nomination certainly wasn’t hurt by his ardent advocacy of executive power.
What do the other justices think about the issue of Congressional subpoena power vs. President’s claim of executive privilege? We don’t yet know. A unanimous Supreme Court ruled against Richard Nixon’s claim of executive privilege regarding a grand jury subpoena in 1973, but none of those justices remain on the Court, and the facts of this case are very different.
Yet there are a number of cases on the executive privilege vs. Congressional subpoena question, and virtually all support Congress.
The most significant one today may be the case decided in 1981. President Ronald Reagan, who campaigned on a promise to pare down the size of the government, appointed a Colorado lawyer/politician as Administrator of the Environmental Protection Agency. The House subpoenaed the Administrator to produce documents related to the mismanagement of the Superfund designed to ameliorate serious toxic waste hot spots, and Reagan asserted executive privilege and directed her to refuse to comply. The result was she became the first Cabinet member ever to be found in contempt of Congress. The vote was not close: 259–105. But before the House could send the document certifying her contempt to the U.S. Attorney for prosecution as a criminal contempt, the Department of Justice obtained a temporary injunction barring that transmission.
The District Court dismissed the DOJ’s suit as meritless, and the White House folded and coughed up the documents. The Administrator quit and bitterly complained about the Congressional investigation and the whole experience.
But here’s the thing: The Administrator’s name was Anne Gorsuch Burford. Yes, that Gorsuch. She was Justice Neil Gorsuch’s mom.
If the Barr contempt citation reaches the Supreme Court, will Justice Gorsuch recuse? Justices do not need to explain, and do not explain recusal decisions. Notably, Justice William Rehnquist, who worked in the Nixon Administration before going on the Court, recused himself from U.S. v. Nixon, and that unanimous decision was an eight-justice court. As for Gorsuch, would he leave the court evenly split ideologically and thus more firmly in the hands of a conservative Chief Justice who nonetheless possesses a penchant for making the Court appear apolitical? While it’s a lot easier to recuse when the vote is 8-0 than when it’s 4-4, the ethical principles should be the same.
The second question is: How long will this take? It depends.
The Gorsuch contempt issue was resolved in less than a year, because the parties settled after Gorsuch lost in the District Court. But even in the event of a District Court victory, can this House overcome Trump’s stonewalling strategy and get the testimony and documents before the end of the 2020 campaign?
As it happens, former Attorney General Eric Holder is the model for the success of stonewalling. When negotiations failed surrounding the Fast and Furious investigation, Holder complied with President Obama’s assertion of executive privilege and refused to produce documents, and was found in contempt of Congress on in June 2012. The chronology of that case is appalling.
The House commenced a civil action in August 2012, and the government’s motion to dismiss the House suit was denied more than a year later, on September 30, 2013. Both parties’ motions for summary judgment were decided in yet another year, on August 2014. It then took a further year and a half for the House to win a court order, in January 2016, directing Holder to produce documents. Surprising no one, Holder appealed, and in January 2017, the appellate court held the matter in abeyance, pending settlement negotiations with the Trump Administration. Total time elapsed—just to reach an impasse? Over four and a half years. (Though you could also count it as seven years, since the Justice Department actually announced a final settlement this May 9.)
On the other hand, in 1973, when Judge John Sirica rejected President Nixon’s executive privilege defense and ordered him to turn over the tapes, the President’s appeal to the Circuit Court went directly to the Supremes via some legal rule I don’t dare try to explain, and the historic decision that led to Nixon’s resignation was rendered within 90 days of the District Court decision. These things at least can move quickly.
Conclusion? The judicial remedy for Trump’s stonewalling is available and it can be accomplished expeditiously. If not, Trump’s delay tactics will have proved to be a winning strategy, and the Constitution will have incurred a major dent. It’s all in the hands of the judiciary. Will it — can it — act apolitically and efficiently? I have my doubts.
Speaker Nancy Pelosi is correct: This is a bona fide Constitutional crisis. But no matter what the courts do, and even if the House does impeach, those who will decide the fate of Trump’s presidency are the people who gave him a chance in the first place: the voters.