Tuesday, December 17, 2019
John Roberts' Last Chance to Prove There Are No Trump Judges
DEC 17, 2019
In November 2018, after
President Donald Trump blasted a federal jurist as an “Obama judge” for
overturning his new restrictions on political asylum, Supreme
Court Chief Justice Roberts issued a
biting reply in a statement to the Associated Press: “We do not have Obama
judges or Trump judges, Bush judges or Clinton judges. What we have is an
extraordinary group of dedicated judges doing their level best to do equal
right to those appearing before them. The independent judiciary is something we
should all be thankful for.”
Never one to shy away from
verbal combat, Trump tweeted out
a snarky rejoinder: “Sorry Chief Justice John Roberts, but you do indeed have
‘Obama judges,’ and they have a much different point of view than the people
who are charged with the safety of our country.”
I’m sorry, too, Mr. Chief
Justice, but I also believe that in general there are significant differences
between judges appointed by liberal and conservative presidents. This is
especially true of the justices who sit on the Supreme Court.
Academic researchers who study
the ideological
alignment of Supreme Court justices have consistently found the
political leanings of judges are very important, particularly in high-profile
cases. Common sense and real-world experience also counsel that judicial
politics matter. Indeed, if ideology made no difference in the way judges
render decisions, we would never have stressed over Trump’s nominations of Neil
Gorsuch and Brett Kavanaugh.
I’m willing, however, to be
proved wrong. And by the end of the Supreme Court’s current term, Roberts, who
is now the court’s most prominent swing
voter, will have an opportunity to do just that when he and his colleagues
decide three
cases that could determine whether Trump is immune from both
congressional and state oversight:
Trump v.
Vance, which deals with the constitutionality of a subpoena issued by a New
York grand jury, demanding the production of nearly 10 years’ worth of the
president’s financial papers and his tax returns.
Trump v.
Mazars, concerning a subpoena issued by the House Committee on Oversight
and Reform to the president’s accounting firm, requesting a variety of Trump’s
private financial records; and
Trump
v. Deutsche Bank, concerning a subpoena issued by the House Financial
Services Committee, seeking similar records from Deutsche Bank and Capital One,
the president’s two favorite lenders.
In each of the cases, lower
courts ruled against the president. The Supreme Court was under no obligation
to review any of them, but agreed
on Dec. 13 to review all of them at the president’s request.
Although the Supreme Court
could find a way to resolve the cases on narrow grounds, the cases have the
potential to redefine both the separation of powers between Congress and the
president and the distribution of authority between the federal government and
the states.
The court could also use the
cases to overturn or distinguish and restrict the longstanding precedents on
executive privilege and presidential immunity established in United States v.
Nixon (1974), and Clinton v. Jones (1997).
Both the Nixon and Clinton
cases were the products of investigations similar to the current undertaking to
impeach and remove Trump from office. In Nixon, the court ordered
then-President Richard Nixon to turn over clandestine White House audiotapes to
Watergate Special Counsel Leon Jaworski, rejecting Nixon’s invocation of
executive privilege. In the Clinton appeal, the court held that a sitting
president is not immune from civil litigation initiated by a private party in
federal court for acts done before taking office and unrelated to his official
duties as president. Impeachment, the court noted, is the federal remedy for
addressing a president’s public misconduct.
Trump has made his position on
expansive executive power unmistakably clear from his earliest days in
office. Speaking at
the Turning Point USA Teen Student Action Summit in Washington, D.C., in July,
he famously claimed that under Article II of the Constitution, which sets forth
the powers of the presidency, “I have the right to do whatever I want as
president.”
While Trump’s mastery of the
Constitution is meager and often downright embarrassing, the views of his
primary legal advocate—Attorney General William Barr—are well-developed and
dangerous.
As I explained in a previous
Truthdig column, Barr is a leading proponent of the “unitary executive
theory.” Developed by right-wing legal scholars in reaction to Nixon’s ouster,
the theory dates
back to the presidency of Ronald Reagan. It asserts, as University of
Baltimore law professor Garret
Epps has explained, that because the Constitution vests executive
power in a single president, any attempt to limit the president’s control over
the executive branch is unconstitutional.
In its more robust iterations,
the theory goes even further, verging on a platform of presidential supremacy.
As professors Karl Manheim and Allan Ides of Loyola Law School in Los Angeles
observed in an oft-quoted 2006 academic
paper:
In its stronger versions, it
embraces and promotes a notion of consolidated presidential power that
essentially isolates the Executive Branch from any type of congressional or
judicial oversight. And it is much more than an academic theory. Rather it is an
operative way of thinking about and applying Executive Branch power that has
had and will continue to have real-world consequences for our republic and for
the international community.
Barr makes no secret he
adheres to the robust version. In an astonishing
address delivered Nov. 15 at the Federalist Society’s annual lawyers
convention in Washington, D.C., he advanced a vision of virtually unchecked
presidential power. Attacking what he vaguely referred to as “the left” for
promoting a “scorched-earth, no-holds war of ‘Resistance’ against” the Trump
administration, he contended that “since the mid-’60s, there has been a steady
grinding down of the executive branch’s authority that accelerated after
Watergate.
“The premise [of the
Resistance] is that the greatest danger of government becoming oppressive
arises from the prospect of executive excess. So, there is a knee-jerk tendency
to see the legislative and judicial branches as the good guys protecting
society from a rapacious would-be autocrat. This prejudice is wrong-headed and
atavistic.”
Invoking the Founding Fathers,
whom he maintained supported sweeping presidential powers, he lamented the many
lawsuits that have been filed to block Trump administration policies,
concluding that “it is critical to our nation’s future that we restore and
preserve in their full vigor our founding principles. Not the least of these is
the framers’ vision of a strong, independent executive.”
Barr’s Justice Department will
play the role of amicus curiae (“friend of the court”) in the three financial
records cases now pending before the Supreme Court. Together with Trump’s
private attorneys, the department will be well-positioned to advance Barr’s
views on executive authority and his bare-knuckle defense of Trump in what is
shaping up as a constitutional showdown for the ages.
Are Chief Justice Roberts and
the other members of the nation’s highest judicial body up for the challenge?
Are they prepared to demonstrate that there are no such things as “Trump
judges?” We’ll have an answer by the end of June.
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