Between now and the 2020 election, all of us — Congress, the courts, the voters — are going to have to answer this question: Is the president a king?
In his suit trying to quash a subpoena from the Manhattan district attorney to his accounting firm, Trump’s lawyers argued that while he is president he is not just immune from prosecution, he’s immune from investigation. The judge in the case ruled against him, saying the argument that the president is above the law was “repugnant” to American values.
And in trying to prevent the former White House counsel Donald McGahn from testifying to Congress, Trump has once again been rebuked by a judge:
Former Trump White House counsel Donald McGahn must comply with a House subpoena, a federal court ruled Monday, finding that “no one is above the law” and that top presidential advisers cannot ignore congressional demands for information. The ruling raises the possibility that McGahn could be forced to testify as part of the impeachment inquiry.U.S. District Judge Ketanji Brown Jackson of Washington found no basis for a White House claim that the former counsel is “absolutely immune from compelled congressional testimony,” setting the stage for a historic separation-of-powers confrontation between the executive and legislative branches of the government.
What’s striking about this case is that the administration didn’t assert executive privilege. Instead, it made the much more sweeping claim of “absolute immunity.” Had the administration made a different argument, it might have been on firmer legal ground, but this may be a tactic to maximize delay. In other words, Trump officials may be happy to lose in court, so long as doing so eats up the clock.
What the House Judiciary Committee is after in this case relates to what we already learned about in the special counsel’s report on the Russia scandal, especially Trump’s efforts to obstruct justice — which could become another article of impeachment.
McGahn testified to Mueller about how Trump ordered him to fire Mueller, and he resisted. Then Trump tried to get him to lie publicly about it. Not surprisingly, Democrats would like McGahn to answer some questions about this.
So what happens now?
The administration will probably appeal, and it could take its absolute immunity claim all the way to the Supreme Court — and resolution would be further delayed. But at some point, if the administration loses, the question will become: What will McGahn do?
He could testify. Or he could decide that now he’s going to assert executive privilege. According to the experts I’ve spoken to, in order to do that he would probably have to show up in Congress and then refuse to answer questions one by one.
If Democrats wanted to press the issue, they could then sue to force him to answer, but that would require starting over with another lawsuit (or lawsuits) that would have to wind their way through the courts again, all of which would continue running out the clock as we get toward the election.
By the time the whole thing was settled, the 2020 election could be in the past. In other words, Congress might ultimately have the law on its side, but if the administration plays the system by dragging things out, Trump could prevent his aides from testifying until a point at which it might not matter anymore.
None of this is to say that how the Supreme Court will rule doesn’t matter. A great deal is at stake, especially since we do know that the conservative majority on the court is inclined to expand the president’s powers (particularly when that president is a Republican).
And the high court will have to decide not just whether the president can claim absolute immunity from having his aides testify; it will also decide whether he has the right to keep his financial records hidden; on Monday, the court agreed to an expedited review in one of the cases concerning Trump’s tax returns.
The nature of the tax-return cases makes it harder for Trump to stall; those returns could well find their way to the public in the middle of next year. But when it comes to impeachment, the administration seems to have figured out that, even if the courts are telling him he isn’t a king, losing is no worse than winning, if you can delay long enough.
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