Criminal prosecution exacts punishment; impeachment upholds the Constitution and prevents further assaults on it. Many Americans, but far from a majority, think President Trump has committed impeachable acts but are wary of impeaching without hope of removal. However, if there is an indication that severe damage to the Constitution will occur unless Trump is removed, the House must act, and then engage public opinion to pressure the Senate.
On Friday, we might have reached that breaking point. The Post reports: “Federal prosecutors on Friday declined to make public transcripts of recorded conversations between Michael Flynn and Russia’s ambassador to the United States in December 2016, despite a judge’s order.” The Justice Department argued that the documents need not be released because “it did not rely on such recordings to establish Flynn’s guilt or determine a recommendation for his sentencing.” Moreover, “Prosecutors also failed to release an unredacted version of portions of the Mueller report related to Flynn that the judge had ordered be made public.”
Constitutional scholar Laurence Tribe tells me, “Even if the district court’s order to release the Flynn-Kislyak transcripts goes further than justified by the sentencing matter before the court, I would’ve thought that, in a government of laws, the only way to avoid compliance is to take an appeal to a higher court.” The government made its arguments to the court, did not obtain a stay to our knowledge and did not seek an emergency appeal. From all appearances, the Trump administration has deliberately and willfully defied a court order.
“Normally when prosecutors don’t want to make something public for national security reasons, etc., they file a document under seal with the judge explaining that reasoning and requesting relief from the presumption that things should be made public,” says former prosecutor Mimi Rocah. “The fact that the government didn’t do that here is puzzling. Instead, they took a very unusual tact of refusing the judge’s order publicly, which suggests that they didn’t think the judge would go along with keeping the material under seal.” Rocah continues, “While it doesn’t necessarily mean they don’t have legitimate motives, the disrespectful and atypical nature of their action makes me suspicious. And it certainly doesn’t mean the judge is just going to say, ’Okay, let’s just forget I asked.’ ”
How will Judge Emmet G. Sullivan, infamous for his tough treatment of prosecutors, react to this act of defiance? He could haul the prosecutors and their boss, Attorney General William P. Barr, into court to explain why they shouldn’t be held in contempt for violation of a court order. The court may or may not decide to exact punishment — at a time the president is challenging two court decisions upholding subpoenas for financial documents and the administration stands in defiance of a law requiring production of tax records upon the request of the chairman of the House Ways and Means Committee.
The House should, as a distinct part of its pre-impeachment fact-finding, hold “Hearings on the Defiance of Court Orders and Refusal to Produce Mandated Production of Witness and Documents and Subpoenas.” Make no mistake, Trump’s conduct resembles conduct that was the basis Impeachment Article 3 against Richard M. Nixon. (“In his conduct of the office of President of the United States, Richard M. Nixon, contrary to his oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives.”) The committee and the House don’t need Robert S. Mueller III or any other Trump witness to proceed. The result could be impeachment hearings against Trump or against Barr.
If allowed to continue this conduct, the Trump administration will do permanent and serious damage to the Constitution. For this alone, impeachment and removal may be required.