Friday, November 22, 2019

Living in Interesting Times

Let's start with this, sent originally to Josh Marshall.  I'm going to add annotations along the way, rather than put my comments at the end:

I’m a former federal corruption AUSA and also a former DOJ attorney. Let me tell you why I think the House isn’t going to court over the failure of Bolton, Pompeo, etc. to appear for testimony.

If the House were to go to the District Court, any ruling would eventually be appealed to the Supreme Court. The earliest any decision would come is next spring or early summer.

If the House impeaches the president, the impeachment will be conducted no later than January, and occur under the Senate’s impeachment rules.

Those rules date to 1986, and could be changed by the Senate for this impeachment.  However, the House rules Nunes & Co. complain about so loudly are the rules established under John Boehner's speakership, and were not changed for the impeachment investigation hearings.  No reason to presume Senate rules would be radically altered, at least not on points related to this trial.

The rules provide that the House managers can issue subpoenas to anyone, presumably including Bolton and Mulvaney. A senator could object that the testimony is irrelevant or covered by privilege. Rule VII provides that a ruling on such questions will usually be made by the Presiding Officer – the Chief Justice, unless he refers the decision to the full Senate. The Chief Justice would likely decide, in the first instance, claims of executive privilege or attorney-client privilege. He would also likely decide questions such as the crime/fraud exception and the co-conspirator exception to the hearsay rule, as well as questions of waiver of any privilege. Finally, he would rule on subpoenas for the production of documents.

When I wrote about this earlier, I assumed the Senate subpoena power would be the same as the House power.  But when the Senate sits in a trial, those subpoenas may have greater authority.  Then again, this opinions speaks of persons in the government who could be compelled to appear by the Congress' inherent authority (the so-called "inherent contempt" power of Congress).  I don't know that such power would work against Joe or Hunter Biden, for example (maybe against the whistleblower, though).  So my analysis could be correct, or it could be the question of their testimony could come before Chief Justice Roberts as presiding judicial officer of the trial.  I think that raises a Senate trial just a bit too high, however, making it equivalent to an Article III court, and I don't think Roberts would like that.  Sections V and VI of the rules seem to give the Senate broad power to compel witnesses to attend and testify, but all such powers are subject to the rules and powers of the Senate.  As I say, I don't think these rules give the Senate the authority of an Article III court, as the rules expressly place enforcement power of them in the Sergeant at Arms, the same authority who can enforce the inherent contempt power.  But I haven't studied the matter carefully, I'm just idly speculating, again.

I think it is likely that testimony from Mulvaney would be compelled – at least as far as his public statements, and that Bolton and others would be ordered to testify – at least as to some matters. Additional documentary evidence would likely be compelled, as well.
Notice all the discussion of enforcement of demands for testimony or documents assumes application to government employees and documents.  That may or may not support my point above, but it doesn't undermine it at this point.

While a majority of the Senate could vote to overturn the Chief Justice’s ruling, any evidentiary/privilege ruling by him would have a presumption that it was correct. As a political matter, it would be difficult for many Republican senators to vote to overturn an evidentiary ruling by the Chief that is based on the law. (That is different than a motion to dismiss because the evidence is insufficient, where it is the senators’ role to evaluate the weight of the evidence.) Only a handful of Republican senators would have to vote to uphold the Chief Justice’s ruling for a majority to sustain the ruling that testimony or documents should be compelled.

Word is McConnell can't get 51 votes to avoid the trial entirely (which would involve changing the Senate rules for this situation and all others, until the rules are changed again).  I don't think he'd get 51 votes to overturn an evidentiary ruling by Roberts, either.

Chief Justice Roberts will make straight rulings on the evidence and the power of the Senate to compel testimony. That’s the best outcome the House can want. (If he didn’t agree with the House Managers on any point during the trial, the Chief would be unlikely to provide a fifth vote in the Court before the trial to compel the same evidence.)
Not least because it gives the House the chance of making Mulvaney and Pompeo testify (and Perry, if he doesn't hurry up and move on with his announced retirement), it pretty much ends any attempt to drag in the Bidens, or force Schiff to testify.  The House managers (not Trump), would have to present evidence, not Nunes' looney conspiracy theories, as to what possible relevant information they could bring to a trial on whether or not Trump tried to shakedown the Ukrainian government for his political benefit.  If Hunter Biden was crooked as a dog's hind leg and Joe Biden in on a conspiracy with his son up to his eyeballs, it would be grounds for a DOJ investigation, but wholly irrelevant to an impeachment trial.  Same with the whistleblower:  who he or she is is meaningless, as everything he/she reported has been confirmed by documents ("READ THE TRANSCRIPT!") and witnesses.  And calling Schiff?  Why, because Trump didn't like a speech he gave in a committee hearing?  There is actually a Constitutional provision about that, just as there is about impeachment and conviction and removal of a President.  Roberts is not going to preside over a kangaroo court.  By and large, what's why he's there.

Thus, by moving directly to impeachment, the House gets its best chance of winning the testimony of Bolton, Mulvaney, and others, and doing so in a timely fashion. The House likely won’t be able to depose witnesses or examine all the documents in advance, but that’s a small price to pay for obtaining the evidence at the trial.

In addition, a favorable decision can’t be hung up in the courts. The decision of the Senate on procedural rulings, whether by the Presiding Officer or if reviewed, by the full Senate, is final, and not subject to court review. See Nixon v. United States (involving the impeachment of Judge Nixon, not Richard Nixon).

My guess is Speaker Pelosi is aware of this approach, based on her comments today at her presser that the House won’t go to court now to obtain testimony of Pompeo, Maloney, and Bolton. She noted, however, that the information may be available to the Senate.
Further affiant sayeth not.  This is a very reasonable analysis of the state of play and the strategy of the Democrats.  Dragging this out for months and months in hopes creating a Democratic snark hunt that produces a "But HIS e-mails!" against Trump, is a fool's errand, and toys with the very idea of impeachment as a magisterial process not to be undertaken for purely partisan ends (as the impeachment of Clinton was).  Nixon was rightly driven from office because we had Howard Bakers and Arlen Specters in those days, and because he had committed multiple crimes and abuses of office.  We have the crimes and abuses now, but not the caliber of Senator we had then (who knew they were our high water mark in my lifetime?), so the best we can do is follow the process and assure the voters the Democrats are upholding the Constitution, and are not blindly upholding Donald Trump because of:  politics.

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