Impeachment, Legal, Supreme Court

King Trump

The president’s latest power grab—and what Congress and the courts can do about it.
by Kim Wehle
October 10, 2019
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In the swirl of all-things-impeachment, two tidbits of note have come out of the federal courts this week.

On Monday, U.S. District Judge Victor Marrero dismissed a lawsuit filed by President Trump that sought to block the Manhattan district attorney’s subpoena seeking eight years of his personal and corporate tax returns. The request was part of the DA’s probe into hush-money payments made to keep damaging information about Trump from becoming public in advance of the 2016 presidential election.

On Tuesday, the chief judge of the U.S. District Court for the District of Columbia, Beryl Howard, balked at the Justice Department’s opposition to Congress’s request for grand jury testimony from special counsel Robert Mueller’s investigation. Grand jury testimony is usually kept secret, but government attorneys and federal judges have the authority to disclose grand jury material under certain circumstances.­ The House is seeking the grand jury information as part of its impeachment inquiry related to Trump’s knowledge regarding Russian attacks on the 2016 election. (There is precedent for Congress’s request: In the 1990s, Independent Counsel Kenneth W. Starr secured a court order authorizing release of grand jury materials in connection with the Whitewater investigation of President Bill Clinton.)

Also on Tuesday, White House counsel Pat Cipollone sent a specious letter to the House of Representatives arguing that impeachment is unconstitutional despite its being authorized by the Constitution.

People can fairly debate whether we are in a full-blown “constitutional crisis,” a question that hinges on one’s subjective take on that term. But at least one thing is for sure: The Constitution sets up a structure of checks and balances among the branches of government. Congress—both through its express powers, like impeachment, and its implied powers, like its oversight practices—is legitimately empowered to check abuses by the president.

The president, his lawyer Cipollone, and various Trump spokespeople have argued that Congress is abusing the president by exercising its impeachment prerogative. This claim is not routine, politics-as-usual stuff. It is deeply concerning. If Team Trump wins its all-out assault on executive branch accountability, the Constitution as we know it will be dead. Yet by then, it will be too late to wave the constitutional-crisis flag to any avail.

In the grand jury matter, DOJ is taking the position that the House needs to do more than merely conduct an impeachment inquiry in order to get Mueller’s underlying materials. But Judge Howard reportedly “said she was concerned that withholding the documents, coupled with the Justice Department’s adherence to its policy that sitting presidents cannot be indicted, could result in the public never having a full accounting of all that investigators found.”

For his part, Judge Marrero wrote that “[t]his Court cannot endorse such a categorical and limitless assertion of presidential immunity from judicial process as being countenanced by the nation’s constitutional plan, especially in the light of the fundamental concerns over excessive arrogation of power that animated the Constitution’s delicate structure.” Indeed, he added, “the expansive notion of constitutional immunity invoked here to shield the President from judicial process would constitute an overreach of executive power.” For anyone wondering that’s really at stake here, Judge Marrero’s eloquent decision is worth reading in full.

These judges get it, folks.

What we are talking about is staving off an unchecked presidency—a monarchy in all but name, of the sort that American revolutionaries fought and died to reject, and which the Framers of the Constitution unquestionably sought to prevent by imposing limitations on the office of the president, including Article II’s impeachment clause.

Some people—whether it be with trepidation or glee—expect the current, conservative-leaning U.S. Supreme Court to back this president and his attorney general William Barr’s virtually limitless view of executive power. But they are likely in for a surprise. Many federal judges—prominently including Justice Brett Kavanaugh—are students of the Constitution and the bedrock theories underlying the separation of powers. Conservative judges—at least intellectually honest ones—tend to tether their views of the Constitution to the Framers’ contemporaneous and normative understanding of how to keep the presidency from slipping into a monarchy or, worse, a dictatorship. And the Framers would undoubtedly be aghast at Trump’s abject power grab.

In Judge Marrero’s words, DOJ is wrong to suggest that “the constitutional dimensions of the presidential shield from judicial process are virtually limitless.” I suspect that when the first case urging limitless presidential power reaches the Supreme Court, the justices will fiercely protect their own prerogative as a co-equal branch of government, as well.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is also a professor at the University of Baltimore School of Law and a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation and author of How to Read the Constitution and Why (Harper Collins).