From Roger Fitch and our friend down under at Justinian

The plot thickens

ROGER FITCH ESQ • WEDNESDAY, MAY 20, 2020

SCOTUS tussle over congressional subpoenas for Trump's financial records ... Presidential immunity rejected in Nixon and Clinton cases ... Republicans want a compliant Supreme Court ... Yet, POTUS not doing well in the lower courts ... Attorney General's political manipulation of the judiciary ... Alarms and diversions for the election... Roger Fitch files from Washington  

We sometimes forget that Donald Trump won office with 26.3% of eligible voters (Hillary got 26.5%).

It's still a shock to see a transparently unsuitable person direct the whole US government, even as he rages against it, yet under the peculiar American presidential system of government, he can. As a consequence, a country ravaged by virus is at the same time mismanaged and pillaged by an administration stuffed with party operatives, corporate lobbyists and special interests, staffed with the unqualified and incompetent. 

As for the hyper-litigious and "paranoid" president, his own day of judgment arrived in the supreme court, where his astonishing claims to be above the law were considered in oral arguments conducted by telephone. More here and here. 

Sadly, the court looks set to buy into some of Trump's (bad faith) claims that congress acted in bad faith in issuing subpoenas for financial records held by third parties such as Deutsche Bank and his accountants Mazars. 

The institutions stand ready to obey the subpoenas, but Trump argued that doesn't matter: their compliance with law would "burden" his presidency. 

As Marty Lederman noted, the president produced no evidence of actual burdens. Instead, he relied upon deceptively-described Justice Department memoranda to support his position, just as Treasury Secretary Steve Mnuchin used a DOJ memo to block release of Trump's tax returns to  congress, notwithstanding a statute specifically authorising subpoenas for taxpayer returns.

The president's obvious goal is to keep his financial improprieties secret until at least after the election.

Previous supreme courts unanimously rejected similar claims of presidential privilege and immunity by presidents Nixon and Clinton. Will things be different with an ideologically-packed supreme court? 

If the court allows Trump's arguments to stand, it would signal that a major political party has secured a durable partisan alignment of justices for the benefit of the party's sitting president. 

But the Republicans want more: they want a supreme court dependably aligned with the party itself, as in Wisconsin. 

In 2000, long before the Trump court was in place, a partisan faction of the supreme court installed an unelected president, in Bush v Gore. Experts are debating whether it could happen again this year. 

Neomi Rao: reliable DC Trump judge opposed to release of Mueller grand jury evidence

Many are reflecting on the fact that the supreme court would now have a 5-4 liberal composition, had the Republican senate not stonewalled Obama's nominee Merrick Garland until the Democrat president's term expired. That court might have taken a very different view of Trump's remarkable claims.

The president is losing in the lower courts. A 4th circuit decision allows the foreign emoluments case against Trump to go forward, and the DC circuit has upheld a district court's decision that the secret grand jury evidence from the Mueller inquiry must be disclosed to congress pursuant to a House Judiciary Committee subpoena - reliably dissenting was Neomi Rao; she and Gregory Katsis, another Trump appointee, are already proving their worth to the party. 

In a desperate attempt to suppress the grand jury testimony, the government has asked the supreme court to set aside the DC circuit's decision.

There's still a DC en banc ruling pending in the McGahn case, a review of a three-judge panel's decision in which two Republican judges inexplicably endorsed the amazing view that congress can't enforce any subpoenas against executive branch employees. 

With six months to go, Trump's election-year strategy has emerged: discredit the Mueller inquiry, and partly supported by his attorney general, create external scandals: the absurd, Trumped-up "Obamagate". 

Barr: unstitching the Mueller convictions

In federal district courts, AG Bill Barr has been systematically sabotaging cases arising from the special counsel's report, while his dishonest response to an FOI case requesting the full report prompted DC judge Reggie Walton to rebuke the AG and question his candour. 

In the Roger Stone case, the Attorney General's flagrant meddling was successfully resisted by DC judge Amy Jackson Berman. Stone has been sentenced, though temporarily reprieved due to the corona crisis.

Barr interfered next in the trial of former national security director Michael Flynn, also indicted during the Mueller investigation. After installing outside counsel to review the case, Barr pushed out career prosecutors and filed for dismissal of the case, even though the retired general had already pleaded guilty - twice.

The Flynn judge, Emmet Sullivan, could reject the government's motion, and Barr, perhaps unwisely, has sneered at his critics, who call his submissions faulty, and likely to incite frivolous arguments in future criminal cases. 

Judge Sullivan has now appointed outside counsel to argue the case against dismissal. More here. 

The Attorney General's political manipulation of the courts has shocked lawyers, and over 2000 former DOJ officers have called for Barr's dismissal. 

Progressive organisations discern a Republican plot, now reaching fruition, to use the courts to undo most 20th century advances in federal and state legislation (report here).