A Huge (But Slow) Step Forward

The wheels of justice tend to move slowly in America but fortunately they tend to move toward fairness and equity. We had an example of that late Monday afternoon. Let’s explore.

Federal Judge Ketanji Brown Jackson of Washington D.C. issued a nearly 120 page ruling that stated Don McGahn must comply with a House subpoena. He may refuse to answer specific questions where executive privilege applies but in any event he has to appear and handle them specifically and individually.

By Tuesday morning the Justice Department led by Trump sycophant Attorney General Bill Barr had appealed to the D.C. Circuit. This was expected and is consistent with how Trump plays the litigation/delay game. As of this writing no action has been taken (I assume that may not be the same by the time you read this) but a temporary stay of Judge Jackson’s order pending appeal is expected.

I’m not certain how this appeal will be handled but a “two step” would not be out of the ordinary and would play to the delay game. The first step may be a three judge panel and if they uphold the original ruling I would expect Barr to appeal to the entire D.C. panel.

If unsuccessful at the district level (one or two step dance) I expect Barr to appeal to the Supreme Court. At that point several things could happen. Based on the Supreme Court’s action of placing a temporary stay on the ruling that The House Oversight Committee is entitled to eight years of Trump’s financial records until the Court has time to further consider the matter my thinking has somewhat changed. Cases don’t automatically get heard by the Supreme Court. In fact the vast majority seeking the Court’s attention never get that far. The Supreme Court gets to pick which cases it wants to hear.

My initial thought was that the Court would refuse to hear the matter in an effort to stay out of the fight. Traditionally the Court has hated to get involved in disputes between the other two branches of government. As with any case, if the Court refuses to hear it the last ruling stands. In some cases the Court sends the case back down with instructions to review it at that level. Since this is essentially a constitutional issue the Court cannot claim it lacks jurisdiction.

My thought is that the Court will hear the case. They could rule narrowly – in this case saying the specific law is unconstitutional. More likely they will decide the matter and their ruling will be final (assuming Trump doesn’t decide to defy it which is another entire matter I hope we never have to deal with). Trump feels he has a lock on the Supreme Court because it is 5-4 to the political right and he has appointed two of the Justices who he feels are beholden to him. That could be, but I wouldn’t consider it an automatic if I were him.

Chief Justice John Roberts is certainly a conservative but historically Supreme Court chief justices care about the legacy of “their Court”. Ruling for Trump will have repercussions for decades to come. It will establish precedent and the Court is historically reticent to overturn established legal precedent.

Neil Gorsuch and Brett Kavanaugh have their lifetime seats; Trump has nothing to hold over them. Kavanaugh has to know he is subject to impeachment and might not want to press the issue by angering liberals too much and too obviously. In the final analysis Roberts is the one I expect to be the true deciding vote even if the ruling is 6-3 or 7-2. I say this with the full realization that it could be 5-4 against democracy.

I’ll leave you with what I hope in this case are the prophetic words of the late Rev. Dr. Martin Luther King. “The arc of moral history is long, but it bends toward justice.”

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