Congress’s right to oversee the Executive Branch by summoning its employees with reasonable subpoenas has always been upheld by our federal courts. Nixon was required, by a unanimous Supreme Court, to turn over the incriminating tapes that ended his presidency . Clinton’s appeal for executive immunity from civil prosecution over sexual improprieties he engaged in while he was governor of Arkansas was also turned down by a unanimous Supreme Court.
Our current president, the most unscrupulous one we’ve had so far, aided and abetted by the most openly unprincipled Attorney General in our history, insists on the Unitary Executive’s right to a blanket protective shield against all prosecution, all subpoenas, and investigations of every kind.
If you are litigious, and wealthy enough, you understand that you can delay almost any matter almost indefinitely, if you have an army of lawyers willing to brazenly advance arguments they know they will eventually lose.
I couldn’t help myself, the other day I read part of the recent Vance/Mazars Supreme Court decision, and, to my amazement (but not surprise) Kavanaugh’s “concurrence” with the majority was actually an amplification of the dissent by the two farthest right Justices, Mr. Thomas, the Black Klansman, and Samuel Alito. Kavanaugh stressed, by agreeing with the main thrust of their narrow dissents, that the court was “unanimous” in agreeing that the president may litigate every possible legal theory to his heart’s content, ’til the cows come home, ’til American women of color walk on the moon. Because he’s an ordinary citizen, in the eyes of the law, he may use the delaying tactics available to any ordinary citizen of great wealth. Fair is fair.
What a slimy fellow our Mr. Kavanaugh is. What a slimy legal system we have here under the American Rule (each side pays their own legal fees– except for poor people accused of crimes punishable by at least a year in prison).
Former federal prosecutor Glenn Kirschner gives a good account of the most recent farcical turn in this hideous — if straightforward — case where the Court ordered Mazars to turn Trump’s tax documents over the NY County DA. Instead of complying with the Supreme Court’s order to allow Mazars to release his tax records (why on earth would he?) Trump sent a small army of lawyers to court to try again to block his accountants, Mazars, from turning his tax records over the Manhattan DA Cyrus Vance Jr.’s grand jury. Their arguments were exceedingly feeble, even ridiculous, but once they lose on the merits they’ll have another appeal. The legal process will take months, for no good reason in such an important separation of powers case. As Nixon famously said “Americans have a right to know if their president is a crook.”
Kirshner advocates for a real and very practical solution to the problem of an unscrupulous president exploiting the delays of the courts for his own “nefarious” purposes (Kirschner used that great word a few times to describe the president’s motives and actions) — an expedited Inter-branch Dispute Court with a realistic and short time frame for resolving things like the rights of the House to have subpoenas complied with.
The IDC, a federal court hearing only inter-branch disputes, would work on a streamlined and uniform schedule: 72 hours to present legal briefs, 72 hours to argue in court and present testimony and evidence, 72 hours for a ruling. Resolution of the issue in nine working days. Sounds about right to me. It would go a long way to restoring the checks and balances intended by the Framers, the Original Intent conservatives claim to revere (except when they have the presidency).