Nine Black Robes by Joan Biskupic

Author:Joan Biskupic [Biskupic, Joan]
Language: eng
Format: epub
Published: 2023-04-04T00:00:00+00:00

Unlike past presidents, Trump declined to divest or used blind trusts for his global finances, which opened him to possible conflicts of interest. House committees issued a grand jury subpoena to Mazars USA and also subpoenaed Deutsche Bank and Capital One. Trump intervened to try to block the institutions from providing information and to challenge the power of the House to issue the subpoenas in the first place. His lawyers contended that the subpoenas lacked any legitimate legislative purpose.

At the Supreme Court, the cases had been scheduled for March 2020 in the courtroom, but once COVID-19 hit they were postponed, then rescheduled for a May teleconference. It had only been a few months earlier, in February, that Trump had eluded conviction in the Senate impeachment trial related to his alleged conditioning of security aid to Ukraine on that country’s investigation of U.S. Democrats. A year before that, Robert Mueller had opted not to charge Trump with any crimes related to the Russian election interference.

Trump remained defiant. His administration had also successfully stalled testimony from his top aides, including Don McGahn, for various cases. A panel of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) endorsed Don McGahn’s refusal to comply with a House subpoena in February, siding with the Trump administration’s arguments that federal judges lacked jurisdiction to intervene in that House subpoena fight. U.S. appellate judge Thomas Griffith wrote that U.S. district court judge Ketanji Brown Jackson had given “short shrift” to separation-of-powers principles when she ruled for the House. “In this case,” Griffith wrote, “the dangers of judicial involvement are particularly stark. Few cases could so concretely present a direct clash between the branches.”29 But soon after, the full D.C. Circuit threw out the Griffith panel decision and agreed to rehear the McGahn case. This was right around the time the justices were taking up the Trump documents controversy.

The cases intersected to an extent behind the scenes among the justices. I learned that Kavanaugh privately offered a suggestion based on the view that the Supreme Court lacked jurisdiction to hear the House documents disputes, just as the D.C. Circuit panel led by Judge Griffith had concluded in the McGahn controversy. Before the scheduled Supreme Court oral arguments in the Trump cases, in a memo to his eight colleagues, Kavanaugh raised the possibility that the House case could be covered by the “political question” doctrine or otherwise outside the jurisdiction of federal judges. That “political question” doctrine holds that certain disputes are better thrashed out between the political branches, with the leverage of appropriations and appointments, rather than resolved by judges.

As the justices dealt with each other that April through a series of calls and memos, Kavanaugh persuaded them to ask lawyers for the House and for Trump for supplemental filings on whether the doctrine applied or whether any other grounds would prevent the Court from deciding the case. A few justices believed the request in vain because the dispute involved Trump as a private individual.

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