That’s the word that jumps out at me as the Democratic majority in the U.S. House of Representatives struggles to conduct their constitutional duty overseeing the increasingly authoritarian behavior of President Donald Trump since the Mueller Report was released.
Leaders of key House committees as well as individual representatives trying to hold the administration accountable for its actions lament ad nauseum on cable-TV news programs that enforcement protocols through the courts are depressingly endless in the face of blatant presidential obstruction of Congress.
As in most cases, justice delayed is justice denied. But representatives seem unable to speed the process in this very important moment in presidential malfeasance.
If ever a crisis cried out for fast-track review by the U.S. Supreme Court (SCOTUS), it is the Trump administration’s current campaign to conceal from public view any and all now-secret information relevant to the recently released report by special counsel Robert Mueller into Russian interference in the 2016 presidential election.
The nation’s democratic institutions cannot withstand the president’s continued assaults without lasting damage.
‘Certiorari before judgment’
An obscure Supreme Court procedure called “certiorari before judgment” is the legal process the court has accommodated in the past to decide cases of extraordinary urgency quickly, before they begin to navigate the protracted, tortuous, cumbersome appeals process.
It is clear that the president’s goal is not to protect information that should validly be kept secret but to protect himself by suppressing from public view any and all potentially negative information about him before the 2020 presidential vote, in which he will seek re-election. The legal consensus is that his arguments for continued concealment are generally weak.
But by distracting Congress with an avalanche of secrecy claims that lawmakers must legally process, and inundating the SCOTUS with its own certiorari-before-judgment requests in other cases, the administration can run out the clock up to the next election before challenges to its self-serving secrecy are formally resolved.
Breath-taking is the panoramic breadth of the president’s attempt to throw a blanket of “executive privilege” secrecy and other forms of concealment over any potentially criminal revelations, particularly regarding his personal behavior and that of his underlings before, during and after his 2016 presidential campaign.
Fast-tracking of cases by SCOTUS is relatively rare but far from unknown, including, famously, the U.S. Congress’ 1974 challenge of President Richard Nixon’s refusal to publicly release audio tapes of Oval Office conversations relevant to the Watergate affair that ultimately led to his ouster (United States v. Nixon).
A Watergate parallel
The administration’s current secrecy initiative has a clear parallel to the Watergate case, in that the high court then ruled President Nixon’s tapes were of such importance to national public opinion and the rule of law that the president could not lawfully conceal their contents from congressional review. And the SCOTUS determined that a decision on the matter was so urgent it could not wait for a lengthy standard resolution.
Corresponding to the current president’s intransigence, Nixon in 1974 had claimed “executive privilege” allowed him to not publicly release his Oval Office tape recordings. As Cornell University’s Legal Information Institute website Oyez.org explained, the court disagreed:
“The Court held [in United States v. Nixon] that neither the doctrine of separation of powers, nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified, presidential privilege. The Court granted that there was a limited executive privilege in areas of military or diplomatic affairs, but gave preference to ‘the fundamental demands of due process of law in the fair administration of justice.’ Therefore, the president must obey the subpoena and produce tapes and documents. Nixon resigned shortly after the release of the tapes.”
Regarding the lengthiness of the normal appeals process, legal analysts estimate resolving congressional claims against Trump administration secrecy would likely take many months if not years. Through the standard process, they warn, final SCOTUS decisions would not be likely before the 2020 vote.
Such a delay would aid the president’s re-election by concealing information critical to voters’ election choices, and, if re-elected, President Trump would also remain immune to indictment (under current Justice Department policy) for personal crimes potentially indicated by now-secret information.
In the meantime, the Trump administration is manifestly breaking laws to keep vast caches of information secret. One of the latest gambits is refusal to comply with a U.S. House subpoena directing Treasury Secretary Steven Mnuchin to release six years of the president’s full tax returns. The law is clear in that the Internal Revenue Service is obliged to provide — “shall furnish,” the law states, with no caveats — whatever returns the chairman of the House Ways and Means Committee requests.
Critics ask reasonably why the president now appears ever-more-desperately trying to conceal from the public anything about the case related to him, considering he has consistently labeled the Mueller investigation a baseless “witch hunt” and now insists, falsely, that the special counsel’s final report “totally exonerated” him of wrongdoing. In fact, the report specifically notes that the special counsel decided he could not “exonerate” him of “obstruction of justice” in the case.
A strong case can be made that a “certiorari before judgment” should be sought to as quickly as possible halt the president and his administration from continuing to obstruct justice in continuing fallout from the Mueller Report by concealing information that Americans have a constitutional right to see.
So, U.S. House leaders ought to pursue it. That ought to help cure the present electile disfunction.