Two new court decisions – both historic, but both leaving a good deal of uncertainty – emerged Monday in constitutional controversies arising out of Congress’s investigations of President Trump and his senior White House aides. It will take months for the full impact of both rulings to become clear, so these disputes will still be under way as Americans begin voting on 2020 presidential nominees early next year.
The judicial actions came out within minutes of each other Monday evening. The results handed a broad — but not complete — constitutional defeat for the President in a 120-page ruling by a federal trial judge in Washington, D.C., and gave the President an important – but so far only temporary — victory in a one-page order by the Supreme Court.
U.S. District Judge Ketanji Brown Jackson’s massive opinion (which will now be challenged in an appeal by the Trump Administration) was, for now, the most important of the two actions, even though it came from a court at the first level of the federal judiciary. Here, in summary, is what it did:
* It flatly rejected a claim that senior presidential aides, former as well as currently serving, have “absolute immunity” to refuse demands that they appear to testify in congressional hearings, even if their refusal is specifically ordered by the President personally.
* It upheld wide-ranging authority for Congress to seek such testimony by issuing compulsory subpoenas.
* It upheld broad power for the federal courts to rule on and perhaps uphold such subpoenas.
If those parts of the ruling withstand the coming appeal, they will sustain substantial power for Congress and the courts in current and future constitutional disputes with the White House – including that rare constitutional event, presidential impeachment.
However, the judge also refused to rule that presidential aides who do show up for congressional testimony must answer every question. The decision made clear that the aides may resist at least some questions by claiming “executive privilege” to protect the confidentiality of the aides’ dealings with the President. Such refusals very likely will lead to frustration for congressional investigators, and probably will set up future, time-consuming court battles to settle the extent of the confidentiality.
The ruling specifically involved a House Judiciary Committee subpoena for testimony from former White House counsel Donald F. McGahn II, but the opinion spoke more broadly about the legal duty of any senior presidential aide to obey a subpoena and thus at least to appear before congressional committees. It may be that at least some former aides might be willing to answer all questions when they do appear, but that is an unknown prospect.
It is not at all clear how long it will take for McGahn’s appeal of Judge Brown Jackson’s decision, especially because that case is almost certain to reach the Supreme Court for final resolution. That could mean weeks if not months of lower-court proceedings just to prepare the way for review by the Justices.
Another House panel’s subpoena – issued by the Oversight Committee seeking more than eight years of President Trump’s personal and business tax returns and records – is at issue in the action taken Monday by the Supreme Court in an unsigned order. Here is what that order did:
* It kept in force a previously issued temporary order that put the committee demand on hold while the Justices consider what to do next with the case. The subpoena had been scheduled for enforcement last Wednesday if the Court had not acted as it did. (The order did not show any dissenting votes, but that does not necessarily mean that all nine Justices voted for it. No votes were revealed.)
* It ordered the President’s lawyers to file formal appeal papers by noon on Thursday, December 5, if they want to keep the case alive for review by the Justices. If they miss that deadline, the subpoena would go into effect because lower courts had upheld enforcement of it. (The Oversight Committee will get a chance to respond if the appeal papers are filed by the Trump legal team.)
* It left uncertain when the Justices would make up their minds whether to hear a presidential appeal, but the timing seemed to suggest that such action could come at the Justices’ scheduled private conference for December 13. If review were granted at that time, the case would likely be heard and decided during the Court’s current term, running into late next June.
While the Justices’ order did not promise that review would be granted, the prospect that it would be is one of the factors the members of the Court considered in deciding whether to put the committee subpoena on hold. Issuing such a postponement, however, was not meant to telegraph that the President ultimately would win the case and defeat the subpoena.
It took the votes of at least five of the nine Justices to approve the continuation of the postponement of the subpoena. It would take only four votes, at a minimum, to actually grant full-scale review.
The new order made no mention of another appeal that the Trump legal team already has pending at the Court. That is an appeal challenging lower-court rulings that upheld a subpoena issued by an investigating grand jury in New York State that is looking into possible crimes by the President or by his businesses. The subpoena seeks the same tax records that are at issue in the House Oversight Committee case.
The New York case is now ready for the Justices to take their first action on it at a future private conference, perhaps at the same one where they act on the appeal in the House committee case. The New York State prosecutor is not seeking to enforce the grand jury’s subpoena while the Trump appeal is pending at the Supreme Court.
While the constitutional issues at stake are different in the state investigation case from those being tested in the House committee case, the President and his legal team are claiming “absolute immunity” to both types of subpoenas, so it might make some sense for the Justices to grant review of the two cases, back to back.