Jurisprudence

Congress Could End the Subpoena Fight by Impeaching Trump Tomorrow

Chief Justice John Roberts.
Photo illustration by Slate. Photo by Alex Wong/Getty Images.

A series of court fights now looms over congressional efforts to uncover everything from Donald Trump’s tax returns to the White House’s security clearance process to the full, unredacted Mueller report and all of its underlying evidence. It’s difficult to know how much time these court fights will take, but in the meantime House Democrats might want to consider another avenue to break the current stalemate with the White House: impeaching Trump.

For understandable political reasons, House leadership is reluctant to initiate formal impeachment proceedings. At the same time, almost the entire Democratic caucus wants to commence hearings that will expose the public to the corruption detailed in Volume II of the Mueller report—which most members of the public have never and will never read. The Democrats recognize that a single picture of former White House counsel Don McGahn testifying on national TV would be worth a thousand words.

But here’s the rub: Knowing that the House is reluctant to pull the impeachment trigger, the White House has felt free to stonewall the hearing process by refusing to permit any executive branch official, past or present, to testify, and by refusing to produce documents. Each of the House’s options for attempting to compel compliance with these subpoenas is apt to bog down in rounds of legal briefing and layers of appeals. Essentially, the Trump White House can attempt to play for time, hoping to tie up House counsel in court until no earlier than 2020. An impeachment proceeding, however, might break the logjam. Here’s how.

First, the House, without calling a single witness or demanding a single document, could impeach the president based on the current record alone. There is little doubt that Volume II of the Mueller report, even as redacted, suffices to prove multiple acts of obstruction of justice. More than 800 former federal prosecutors—myself included—have signed on to a letter explaining how the Mueller report proves an indictable case of obstruction. Coupled with the allegations of complicity in campaign finance crimes against “Individual 1” in the Southern District of New York, as well as Trump’s resistance to House subpoenas—which was an impeachment count against President Richard Nixon—the current record is more than sufficient to draft a formidable bill of impeachment.

The House would then designate a subset of its members to serve as “managers” in the impeachment process. The managers are basically the president’s prosecutors. They present the evidence to the Senate, select the witnesses they wish to call, choose the documents they wish to submit, and make opening and final arguments in support of conviction.

Once the managers are chosen, the case would move to the Senate. And under the Senate rules that have governed all impeachment proceedings since 1986, there is a speedy and efficient vehicle for holding exactly the kind of hearings that House Democrats have been seeking.

Crucially, a Senate impeachment trial could not get mired in multiple layers of district court and appellate court litigation. Under Article I, Section 3, Clause 6 of the Constitution, “when the President of the United States is tried, the Chief Justice shall preside.” As the “Presiding Officer,” under Senate impeachment Rule V, the chief justice has the power “to make and issue … all orders, mandates, writs, and precepts authorized by these rules or by the Senate.” The chief justice likewise has full authority to “direct all the forms of proceedings while the Senate is sitting for the purpose of trying an impeachment, and all forms during the trial not otherwise specially provided for.” According to the Senate rules, it is the chief justice as presiding officer who gets to “rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy of evidence and incidental questions.” And while Rule VII permits a member of the Senate to demand a Senate vote on the chief’s rulings, it is difficult to imagine even Mitch McConnell seeking to overrule Chief Justice John Roberts. Indeed, no senator challenged a single ruling by Chief Justice William Rehnquist during the Bill Clinton impeachment trial.

Whatever then happens for any given witness or exhibit, the chief’s rulings are apt to be prompt and efficient. There would be no reams of legal briefing, no extended oral arguments, no endless appeals. The parties would cut right to the chase, and the substance of the Mueller report allegations—not to mention the role of Individual 1 in providing hush money on the eve of the 2016 election—would play out on live TV.

So, for example, if the House impeachment managers call Don McGahn to testify, the White House cannot rush off to court to block his attendance. The president must make his objections to the chief justice, who will issue an effectively unreviewable order on “relevancy, materiality, and redundancy.” Given the central role McGahn played in Trump’s obstruction of justice, it is hard to imagine that the chief justice would restrict him from testifying. So too for most of the key players in Volume II of the Mueller report. And unlike what the Trump administration may do in the face of adverse rulings in the lower federal courts, it seems exceedingly unlikely—even with this president—that the administration would defy a ruling by the chief justice sitting as the presiding officer in an impeachment trial.

Nor does it appear likely that McConnell would be able to stall the Senate trial until after the 2020 election. As soon as the House appoints the managers to prosecute impeachment, Senate Rule I requires the secretary of the Senate “immediately” to inform the House that the Senate “is ready to receive the managers for the purpose of exhibiting such articles of impeachment.” Once the articles are presented, Rule III requires the Senate, “at 1 o’clock afternoon of the day (Sunday excepted) following such presentation, or sooner if ordered by the Senate,” to “proceed to the consideration of such articles,” and thereafter to “continue from day to day (Sundays excepted) after the trial shall commence (unless ordered by the Senate) until final judgment shall be rendered.” While McConnell may have some discretion to drag the process out, the Senate rules clearly anticipate a prompt and efficient trial to judgment.

Of course, Senate Republicans may prove to be more brazen than I anticipate. They could throw out the rules that have governed every impeachment hearing in the past 33 years and devise a new set of rules that place more power in their own hands, instead of the chief justice’s. And they might seek to overrule by majority vote rulings by the chief that they don’t like. But there are constitutional limits to such brazenness; the chief justice must still be allowed to “preside” over the trial of the president. And any efforts by the Senate to refashion the impeachment process simply to protect this particular president will be impossible to conceal from public scrutiny. Each senator will have to account for his or her actions.

To be sure, none of this answers the question of whether impeachment is the right course, for the Democrats or for the country. But if the House leadership is serious about affording the public a chance to see for itself what is otherwise lodged in 400-plus pages of the Mueller report—and possibly developing additional lines of inquiry not addressed by Mueller—it may want to revisit its aversion to impeachment. And who knows—perhaps the White House will back down from its stonewalling once the prospect of impeachment is back on the table.