Why We Need An Expedited Judicial Process to Help Control the Occasional Unscrupulous President

Without an expedited process to bring evidence of a president’s alleged illegal conduct before a court, someone like Donald Trump can do what he has done since he learned the art from his master Roy Cohn in 1973 — run out the clock on consequences while working public opinion.   

Trump lawyers routinely file motions and appeals to tie up and almost endlessly prolong any matter under litigation, burying adversaries in papers and legal fees.  They have done this for decades and do it constantly since Trump has become president.  There is no consequence, under the American Rule (each side pays its own legal fees) for a wealthy person who uses litigation as a sword and shield this way.

The law has processes to expedite relief when the alternative is irreparable harm without adequate legal intervention.  Michael Flynn’s lawyers went to court last month to get a court to grant an emergency decree instantly dismissing his case without a hearing.  The DC Circuit Court panel did so, 2-1.   They ordered the trial judge to immediately dismiss the case without a hearing. 

There needs to be a process for expediting resolution of matters involving a manically litigious president and the public interest.  

Whenever anyone has tried to hold Donald Trump legally accountable for anything in his long, tricky, unaccountable life, his army of lawyers gets to work filing mountains of papers, making arguments that are often ridiculous (“yes, he could shoot somebody on Fifth Avenue and nobody could arrest him or investigate while he’s president”), but not technically “frivolous” (which would get them thrown out of court instantly– with ethical consequences for the lawyers). 

In 2018 the NY County DA, Cyrus Vance Jr.  subpoenaed Mr. Trump’s tax records from his accountants, Mazars, to determine whether Trump had falsified records to hide hush money payments to a porn star to keep quiet about their sexual liaison in the days before the 2016 election.   Mr. Trump’s former personal lawyer Michael Cohen is back in prison, in part for that crime.

In 2019, Trump’s personal lawyers sued the Manhattan DA, and Mazars, to prevent the disclosure of the tax fillings. Trump v. Vance (and Mazars, et al)  was one of the cases recently decided by the Supreme Court.  Trump’s lawyers brought the protective case on shaky legal grounds that John Roberts easily disposed of but the years of delay caused by bringing a lawsuit and vigorously litigating a case they knew they’d eventually lose, were years of unaccountability that Trump gained. 

The result was predictable:  the Supreme Court ruled 7-2 that Mr. Trump’s accountants will eventually have to turn over the tax records, but it could be many months, or even years, before the public sees them.  It also left open the possibility, strongly endorsed by four of the five conservatives, that Trump’s lawyers could use new delaying tactics to prolong even this straightforward case indefinitely.

In the related case of the president’s blanket refusal to allow his accountants to comply with Congressional subpoenas, Trump v. Mazars, the Court ruled the same way, also 7-2.  The second case was brought by Trump’s personal lawyers in an attempt to block his accountants, and Deutsche Bank, from turning over subpoenaed documents from before Trump was president.  One presumes these documents contain compromising information the president does not want known. 

The 7-2 majority ruled that the president has no legal grounds to issue blanket orders to everyone he has ever done business with to treat all his relationships and records as top secret.   The public has a right to know if the president is entangled, say, with shady foreign (or domestic) oligarchs (here we call them ‘philanthropists’) that he may be indebted to.  If Congress has a legitimate “legislative” need to see documents, and the subpoena passes a new four part test, the president may not block compliance with the subpoena.

The Congressional subpoena case was sent back to the lower court for Trump’s lawyers to file additional papers to delay resolution until after the 2020 election (when the subpoenas in question will evaporate anyway, as a matter of law).   It makes no difference whether Trump’s lawyers make winning or losing arguments (they mostly lose), the game is to delay resolution of issues for as long as possible.  They win by delaying.

It is the same with all of his claims about temporary presidential privilege and a ridiculous blanket immunity for him and anyone he’s ever spoken to — claims the president was encouraged to make in a letter from his new Attorney General Bill Barr.   Barr knew these claims were absurd, the Supreme Court had twice before unanimously ruled, in the cases of Nixon and Clinton, that the president must obey a lawful subpoena. 

Barr also knew how long the cases would take to get to the Supreme Court, and how the Court would likely send them back to a lower court for further legal wrangling, as happened in the case Trump’s lawyers brought to stop the production of documents that could damage the president’s reelection chances.  If all else fails, Trump’s lawyers can raise (and have) a brand new quasi-legal claim: presidential harassment.

Justice’s Kavanaugh and Gorsuch did a nice dance in voting with the majority while also siding with the two hardcore dissenters, the Black Klansman and fellow arch-conservative Samuel Alito, on the proposition they highlighted that the President may use any delaying tactics the law allows, for as long as he is able to delay the eventual resolution of matters, the interests of justice notwithstanding.  It is, after all, the American way to rule for the president’s expansive powers, when the president is a conservative Republican.  Here’s Kavanaugh:

JUSTICE KAVANAUGH, with whom JUSTICE GORSUCH joins, concurring in the judgment.

The Court today unanimously concludes that a President does not possess absolute immunity from a state criminal subpoena, but also unanimously agrees that this case should be remanded to the District Court, where the President may raise constitutional and legal objections to the subpoena as appropriate. See ante, at 21–22, and n. 6; post, at 11–12 (THOMAS, J., dissenting); post, at 16–19 (ALITO, J., dissenting). I agree with those two conclusions.

Like Solomon himself, cutting the baby in half.

“But wait,” you will say, “Solomon didn’t cut the baby.  That was the point of the story– he didn’t cut the baby.”

Yes, and this hardcore Federalist Society zealot, Mr. Kavanaugh, is no Solomon.

For an excellent analysis of these two cases, I highly recommend this recent episode of Trump Inc, entitled “Temporary Presidential Immunity is Not a  Thing.”

We need a way to have quick legal rulings on matters a criminal president can nonchalantly have an army of lawyers delay almost endlessly, as they cases work their way through the court with thousands of other cases.   Former Federal Prosecutor Glenn Kirschner advocates a special court, the Inter-branch Dispute Court,  where these matters between branches of government are decided on an expedited schedule.  72 hours for the parties to submit their papers, 72 hour for an argument, a legal ruling 72 hours later.  A criminally inclined president would no longer be able to hide evidence or corruption or criminality using the slowly grinding legal process.

What is the problem with setting up a court like this, outside of it being UNFAIR to an unethical president who is used to freely operating like a mob boss with everyone in his pocket?

As Justice Boof Kavanaugh stated was the president’s absolute right, in the unanimous opinion of the Court, the president’s lawyers exercised his right to come up with a new series of legal arguments against Mazars releasing tax documents to DA Cyrus Vance and announced their intention to start new litigation in that case, under a new legal theory that will take months to debunk.  Read all about it HERE.

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