Will this turn out to be as big a mistake as I think it might? By “this”, I mean the Trump team’s refusal to comply with the House impeachment inquiry.
The White House and State Department made a last-minute move to block Ambassador to the European Union Gordon Sondland from testifying before Congress this morning.
I’m retired now, but spent my law career practicing in Courts, at all levels, all over the Country, both State and Federal, including the U.S. Supreme Court where I was admitted to practice in 1982. As soon as I learned of the Administration’s action, where his team has asserted what amounts to a blanket claim of immunity from any and all Congressional impeachment oversight, it started to nag at me that something different, new and very dangerous for Trump may have occurred.
It only took a few minutes of online legal research to figure it out, and I’m probably right. This is potentially very dangerous, under some pretty settled principles of law, to all of the President’s efforts to obstruct the impeachment investigation that has begun in the House of Representatives.
In the most compact legal explanation I can compose, President Trump has picked a fight, between the Executive Branch and the House of Representatives, about whether Congressional subpoena power extends to the testimony of a serving Ambassador in an impeachment investigation. Because the fight is about the testimony of an Ambassador, though, the case, unlike others, is subject to the original jurisdiction of the U.S. Supreme Court. The White House has gifted House Democrats with the means to short circuit impeachment obstruction by putting the heart of the issue directly into the very rarely exerted, original jurisdiction of the U.S. Supreme Court.
Almost all of the work of the Supreme Court consists of reviewing records created by other courts of lower jurisdiction. But, the U.S. Constitution does place a very small class of controversies into the Supreme Court’s extremely narrow original jurisdiction.
Article III, section 2, of the Constitution distributes the federal judicial power between the Supreme Court’s appellate and original jurisdiction, providing that the Supreme Court shall have original jurisdiction in “all cases affecting ambassadors, other public ministers and consuls,” and in cases to which a state is a party.
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The Supreme Court’s original docket has always been a minute portion of its overall caseload. Between 1789 and 1959, the Court issued written opinions in only 123 original cases. Since 1960, the Court has received fewer than 140 motions for leave to file original cases, nearly half of which were denied a hearing.
If I were advising Nancy Pelosi and the House Democrats right now, I would tell them that I wanted to file a motion in the U.S. Supreme Court for leave to file a declaratory judgment action to resolve the case or controversy that has arisen between two co-equal branches of the Federal Government over the right and power of the House to compel the testimony of an Ambassador, relevant to an impeachment investigation, when that power is arrayed against a claimed right of the President to conceal the evidence.
Sure, the Supreme Court might turn out to be sufficiently corrupted with Trump’s appointments and other Republicans, so that they help Trump obstruct impeachment. But if that is the endgame, best we find out sooner rather than later. Cutting the lower, District and Circuit Courts out of the equation will only speed things up. But if John Roberts and the other so-called conservatives on the Court have had their fill of Trump’s shenanigans, then the quicker someone dumps this into the distinguished Justices laps, the better.