As Trump threatens DOJ, many experts say he would lose a Supreme Court subpoena showdown

[babylonsister]

https://www.dailykos.com/stories/2018/5/2/1761475/-As-Trump-threatens-DOJ-many-experts-say-he-would-lose-a-Supreme-Court-subpoena-showdown

As Trump threatens DOJ, many experts say he would lose a Supreme Court subpoena showdown
Kerry Eleveld
Daily Kos Staff
Wednesday May 02, 2018 · 1:59 PM EDT


Deputy Attorney General Rod Rosenstein sounded like a man who had made peace with his potential fate Tuesday when he told a Washington audience, "The Department of Justice is not going to be extorted." That's a problem, in the twisted view of Donald Trump and his House GOP stooges. Republican Rep. Mark Meadows later mused that if Rosenstein considered doing his job "extortion," then maybe he should "step aside." And Trump returned fire Wednesday morning in a series of tweets promising to "get involved!" with the agency's oversight of an ongoing criminal investigation into the 2016 election.

The GOP assault on Rosenstein comes on the heels of the revelation that special counsel Robert Mueller threatened to subpoena Trump during a March meeting with his lawyers if Trump refused to sit for an interview in the Russia probe.

First, let's just remark at these extraordinary times. Although past presidents have been served with subpoenas, it's never been to compel testimony in a criminal investigation, according to constitutional law scholar Harry Litman. President Bill Clinton's subpoena came via a civil lawsuit, Clinton v. Jones, and he ultimately negotiated terms for a voluntary interview. And President Richard Nixon was subpoenaed in the criminal proceeding United States v. Nixon, but it was an effort to force him to provide documentary evidence, not testimony.

So serving a sitting president a subpoena to compel testimony in a criminal proceeding would truly be a first, it appears. And due to the unprecedented nature of such an action, some legal observers have questioned whether Mueller would prevail if Trump's ever-changing legal team challenged it before the Supreme Court. But many legal experts come down on the side of Mueller succeeding, including Harvard legal scholar Laurence Tribe and former federal prosecutor Renato Mariotti. In U.S. v. Nixon, the high court famously concluded:

"...no person, not even the president of the United States, is above the law."

Litman says a court challenge would likely eat up several months, but he too sides with Mueller, writing:

Assume the day comes when Trump has no more room to maneuver. The courts have ruled against him, the subpoena has been upheld, the grand jury has assembled. Trump still has one more thing going for him: his apparent contempt for the Constitution.

And there's the wild card—Trump has no institutional memory or awareness and, in fact, harbors a deep disdain for any trype of protocol. He could take the Fifth, but besides the political implications of doing so, it's simply hard to imagine he would do anything close to admitting possible criminality. Since when has Trump ever admitted culpability for anything ever?

When Litman wrote that Lawfareblog piece in January, he concluded:

Trump is the chaos president. Trying to anticipate his reaction, especially when he is facing a mortal challenge to his presidency, is like trying to predict the movements of a tropical storm. But there is one takeaway point: Do not count on his raising his right hand any time soon.

Mere months later, Litman's prediction seems even more prescient now. Trump has made explicit threats to intervene at the Justice Department twice in just the last week—in his Wednesday morning tweets and his Fox & Friends phone interview last Thursday.

[vi5]

1. "experts"

I love how people still quote and look to "experts" who base their theories on 1) historical precedent and 2) assumption that folks like the conservative Supreme Court justices acting based on precedent rather than partisanship.

1) There is no precedent for any of this and people need to stop pretending their is, and espousing theories based on historical precedent.

2) The supremes will rule in favor of Trump because the majority of them are in favor of Trump. It could literally contradict something they ruled and voted for 10 minutes before, and that would not matter to them.

[babylonsister]

2. This supreme court really concerns me, too.

I have no idea what will happen; I hope there's some way to avoid this long drawn out process that would eventually wind up in the SC.

[elocs]

9. Apparently, Republicans who didn't like Trump

but voted for him because the Supreme Court was important to them were on to something.
Too bad that the Left couldn't have grasped that concept because likely then we wouldn't be having this discussion now.

[vi5]

14. You could also say...

...that the 40% of women who couldn't grasp that concept and are now having their rights stripped away, or the 30% of hispanic/latino voters who couldn't grasp that concept and are now seeing friends and family deported, or the 25% of Jewish voters who couldn't grasp that concept and are now seeing waves of anti-semitism surge throughout the country all also could bear some blame for their short-sightedness.

Or yeah, just focus on vague, barely quantifiable percentage voters on "the left" who bear all the responsibility.

[elocs]

15. I didn't say voters on the Left bear all the responsibility...you did.

When push comes to shove on election day the only thing in our power is to do what we can do and cast our ballots for the Democratic candidate or the Liberal one because the only other choice will be a Republican or a conservative.
Here in Wisconsin a lot more that a "barely quantifiable percentage" of voters on the Left either didn't vote or voted for Stein in the presidential election. Clinton lost the state by 1% or 23,000, a barely quantifiable percentage point and about the same number of votes that went to Stein.
On the ballot here in Wisconsin with the presidential primary was a state supreme court justice race, and Bernie Sanders easily won the primary but 12% of the Sanders voters didn't even bother to vote for that supreme court race even though they had the ballot right in front of them. The conservative candidate won.
Those of us on the Left are responsible for what we do or don't do, all of us. And a barely quantifiable percentage can be very important.

[Demsrule86]

3. precedent was set with Clinton. I think Trumpie would lose.

[poli3]

6. Clinton was investigated by an Independent Counsel

Not a Special Counsel, legally, there is a significant difference between the two offices.

[Demsrule86]

13. I do not believe the SCOTUS will use that as the idea is no president is above the law.

[malaise]

4. He coud do the planet a favor and

jump from the Con Tower.

[dalton99a]

7. The world would erupt in jubilation

[gratuitous]

5. Certainly no one is above the law

But can one branch of government compel another co-equal branch of government to do something, particularly in a criminal investigation? It's a tricky question with good arguments on each side. For example, in this case, the subpoena appears to be necessary to gain cooperation from a rogue executive branch actor. But what happens if it's the prosecutor / investigator that's going rogue? It wasn't all that long ago that Kenneth Starr was pursuing the mother of all fishing expeditions trying to hang something - anything - on Bill Clinton. Starr had a compliant Congress that granted his every whim in terms of widening the scope of his investigation.

I don't think this is a slam dunk by any means, and any lower court order is going to be challenged all the way up to the Supreme Court. A Supreme Court that favors authoritarian prerogative, remember.

If nothing else, issuing a subpoena could stop the proceedings dead in their tracks until the courts have ruled on the issue. That might not be a bad thing, to keep things on hold until after the 2018 mid-terms. A new Congress might be more disposed to holding the Executive accountable, and provide a more congenial environment for Mueller's office to pursue its mandate.

[kairos12]

8. This is why Drumpt wanted to get his Russian Judge on the SCOTUS so quickly.

Gorsuchsky.

[elocs]

10. Well Trump has admitted he likes chaos and so I'm sure he would prefer to go out with chaos.

The big question would be how far would Republicans be willing to go down the path to chaos with him?
I'm afraid that too many here at DU have blind faith in truth, justice, and the American Way and that the guys in the white hats always win and that justice always prevails. They don't and it doesn't.

[Takket]

11. of course he would lose

"winning" would be tantamount to declaring the president immune to investigation, and therefor prosecution as well. it would be declaring drumpf a King.

he would lose that case 9-0. 8-0 if gorsuch has a shred of ethics and recuses.

[babylonsister]

12. I am not so sure about that. nt