Musing about law, books, and politics

Constitutional Showdown on the Horizon

After Barr testified today that he will not give Congress an unredacted report to Congress, it seems we’re in the same place we were when Barr published his “summary” of Mueller’s report.

The constitutional issue is this: Who gets to decide whether a president is guilty? Congress, or the Attorney General appointed by the president?

Article I, § 2, cl. 5 of the Constitution gives the House of Representatives “the sole power of impeachment.” So under the Constitution, Congress decides.

 Nadler promises that if Barr doesn’t give an unredacted report to Congress, he’ll issue a subpoena & fight it out in court. 

Rep Schiff, too, requested the unredacted report, so the Dems are “fighting a two-front war.”

If House Dems issue a subpoena, and Barr ignores it, the case will likely go to the Supreme Court, where one of two things may happen: (1) SCOTUS orders Barr to turn over an unredacted report or (2) SCOTUS says that Barr does not have to hand it over.

I have a hard time imagining the second possibility because the Constitution is clear on who determines presidential guilt. But weirder things have happened.

The Supreme Court has, in the past, issued some pretty terrible opinions.

Tier one Terrible: Dred Scott v. Sandford, Plessy v. Ferguson.

Tier two Terrible: Lochner v. New York, Bush v. Gore, Citizens United.

So it wouldn’t be the first time the Supreme Court screws up. However, I don’t actually think the Supreme Court would rule for Trump, even though the court leans so far to the right. Roberts is concerned with the prestige o the Court, and has pushed back against Trump. Also, why would the Court create an autocrat, which would mean giving up all of its own power? Right now, the justices are safe from Trump’s tantrums. But if Trump can commit crimes and then get the AG to cover them up, what would stop him from, say, entering a conspiracy for someone to kill a Supreme Court justice he doesn’t like?

Even in the case of a terrible SCOTUS decision, the House has options.

They can call the people who wrote the report to testify. If the material is classified, they can testify behind closed doors.

Or Congress can try to get the unredacted report through a provision in the Patriot Act combined with the notification provisions in the National Security Act. For the procedure, click here.

Barr says his redacted report will be public within the week. He also said his redactions will fall into 4 categories.

First category: Grand Jury material, which he says is secret by law. In fact, there are legal means to get Grand Jury material released. Moreover, much of what is often labelled “GJ” comes from different sources and is thus not subject to the secrecy rule. @delavegalaw has been covering this in her twitter feed.

The other categories are: 2. Material that may reveal foreign intelligence sources, or 3. Material that implicates on-going investigations, or 4. Material that violates the privacy of “peripheral” players.

If Barr redacts material damaging to Trump while pretending it falls into one of these categories, he’s taking a risk because one way or another, the House Dems will find out what’s behind the redactions.

A Twitter follower asked:

There are strategic reasons to wait to see what Barr does. Once the House lawyers see the redactions, they’ll have a better idea how to frame their arguments. Someone asked Nadler why he was waiting for Barr to release his report before issuing a subpoena and he said he wanted to show the courts that they “we’re making every effort to accommodate” the Justice Department.

After I posted this thread, people on Twitter seemed persuaded that the Supreme Court would rule for Trump. I find that unlikely, even though the Court leans so far to the right. Roberts is concerned with Court’s prestige, and has pushed back against Trump.

Moreover, right now the Court has a lot of power, and the justices are safe from Trump’s tantrums or mob-like orders. If they rule that the AG can cover up for a president—including covering up serious crimes—what would stop Trump from entering a conspiracy to kill a SCOTUS justice he doesn’t like?

I just can’t see the Supreme Court, even a far-right leaning Court, issuing a ruling that essentially creates a dictator, which is exactly what you have if Trump can appoint an AG who can cover up crimes upon the president’s orders.

[View here as a Twitter thread]