I am pretty cynical about the likelihood that the federal courts will be as helpful to the impeachment process this time around as they were during Watergate. But I also think that the House of Representatives is on firm constitutional footing to demand a lot of witness testimony, White House documents, and even possibly some grand jury testimony. With the potential exception of Clarence Thomas, I think even the conservative Roberts Court will generally side against the administration in these matters. Of course, I could be wrong.
The most important thing, I think, is that the courts recognize the need for speed. I’m somewhat hopeful on this front, too. The way Trump is acting is creating a genuine sense of national crisis, and since the key issue here is whether he should be allowed to remain in office, it’s hard to see how delay makes any sense.
Greg Sargent sounds hopeful, too, and he’s provided a bit of a road map on some of the legal issues. The problem is that even his optimistic scenario doesn’t sound good enough to me:
To be clear, the “when” question is a big and important one. It is possible, [Stephen] Vladeck [a law professor at the University of Texas at Austin] says, that all this doesn’t get resolved by the Supreme Court until after the election. But it’s also plausible that it might get resolved a lot more quickly — say, by summer, or spring, or even sooner.
After all, Democrats can argue that the very subject matter of their impeachment inquiry has direct bearing on the 2020 election, and even suggests Trump is prepared to engage in brazen, bottomless corruption to prevent it from being a fair one — which should prompt the courts to resolve this well before then.
I’ve seen it reported that the House Democrats have a goal of wrapping up their impeachment process before the Thanksgiving recess. That may be a too aggressive timeline and it seems like it would certainly require a narrowly focused set of impeachment articles. But there’s no good reason why they shouldn’t be able to get decisions on documents and witness testimony before then. What they need is for all these issues to be consolidated in one court room under one judge. And they need the appeals process to be super expedited.
What I wonder, however, is what will happen if the Trump administration refuses to cooperate even after losing all appeals, including at the Supreme Court. In a sense, this could be the best hope for convincing Senate Republicans to convict. But if they won’t, then things will really get broken.
I’m not sure delay is the Republicans best option here anyway. Trump’s behavior is the best advertisement for impeachment, and the longer this goes on the more intolerable it is going to be for everyone, including anyone trying to make excuses for the president. If they intend to acquit him in the Senate, they should tell him not to fight everything to the death in court. They want to hear the case as soon as possible.
But that presumes that providing the documents and testimony won’t make an acquittal untenable for Republican senators. Stonewalling may be the only option.
Maybe the Supreme Court will protect Trump from having to make the most damaging disclosures and the public will grow impatient with the whole process and demand it be dropped in favor of an election.
I don’t think this last scenario is all that likely, mainly because Trump demonstrates his mental instability so unmistakably now that it simply cannot be ignored.