DOJ Fake Law Has Bad Day In Real Court
Yesterday Donald Trump's lawyers got a massive dick-kicking when they tried to argue that TRUMP IS KING nonsense in a real-life court. The House is suing to force former White House Counsel Don McGahn to testify, and Trump's lawyers are suing to stop it under the vaunted legal doctrine of Nuh Uh Cuz Absolute Immunity. Which sounds made up, because it is! And while it's a mistake to assume the outcome of any case until the order is signed, US District Judge Ketanji Brown Jackson seemed highly skeptical of the government's position.
To buy the Justice Department's case, you have to sign off on three really bad arguments. The first is jurisdictional -- the DOJ argues that the court is simply not allowed to intervene in disputes between the two other branches of government.
"You're suggesting . . . out of respect for separation of powers, the judiciary is not going to answer what the law is when the executive and legislature are in dispute?" asked Judge Jackson incredulously, observing that the Supreme Court ordered Nixon to hand over his tapes and that a trial judge ordered Bush White House Counsel Harriet Miers to testify to Congress. "I had understood the whole system is such that that is exactly what the judicial function is."
Justice Department attorney James Burnham replied that there had been a "sea change" in the law since Nixon, and now judicial interference between the legislative and executive branches is UNLEGAL. This leads to the second really bad DOJ argument, which is that there is effectively no means for the House to enforce its own process on the executive branch. How is Congress supposed to carry out its oversight obligations if the White House can ignore subpoenas and the DOJ can refuse to prosecute contempt citations? Spoiler Alert: It can't.
"How will they resolve it on their own then, sending the Sergeant-at-Arms to arrest Mr. McGahn? I thought that is what the court's role was, to decide what the law is," Her Honor wondered.
We have also wondered about that! But, as appealing as the idea of Nancy Pelosi dispatching her guards to LOCK HER UP Don McGahn is, we do see the potential for future abuse if a weasel like Kevin McCarthy ever gets his sweaty palms back on that speaker's gavel. Never mind, though, because the Justice Department has an answer for that one, too. Apparently, the proper remedy is for Congress to hold up nominees and block spending until the White House caves. Just as the Founders intended! So ... they endorse shutting down the government now, we guess?
The last argument is the same Article II bullshit about presidential omnipotence and infallibility they've been flogging all along, only with the added fillip that Donald Trump can now extend his blanket of immunity over the entire executive branch. In this fantasyland, executive privilege, which was long understood to cover only the president and his closest advisors, now radiates out over all his employees and former employees, making them "absolutely immune" from congressional process forever and ever, amen.
Or perhaps not.
"We don't live in a world in which your status as a former executive branch official shields you from giving information," Judge Jackson observed, adding that former officials talk about their White House service all the time, speech that would be blocked if the DOJ's position were taken to its logical endpoint. And then Burnham suggested that the White House might do just that, imposing a gag on all former employees ever uttering another syllable about their time in the Trump administration, saying, "We have not taken a position on that, Your Honor. I am definitely not disclaiming that."
"This is what they wish the law were. It's not what the law is,"countered House counsel Doug Letter, suppressing a desire to shout "I FEEL LIKE I'M TAKING CRAZY PILLS." Allegedly.
"If you don't think the president has absolute immunity, that's a serious problem for my argument." Burnham conceded.
Yes, it might be a serious problem! In fact, we're reasonably confident that it will be a fatal one, eventually. But the point for the DOJ isn't winning. The point is to put off Don McGahn's testimony for several more months as the case wends its way up to the Supreme Court, at which point McGahn will very likely be ordered to testify, and then we can start all over again when he asserts executive privilege in answer to every single question, including the location of his office.
Brass tacks: Don't look for Don McGahn to testify while Trump is in the White House -- these fuckers would do just about anything to stop him going on television and telling America that Trump ordered him to lie about instructions to fire Jeff Sessions, a clearly obstructive act.
But it's always nice to see Bill Barr and his lackeys get their asses handed to them. And keep your fingers crossed for a ruling that will set a precedent that Trump's "absolute immunity" argument is absolute horseshit, so we can finally start to do some real oversight in 2020.
Follow Liz (AKA your FDF) on Twitter!
You liking these lawsplainers? Well click here to keep 'em coming!
Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.