There’s not much the Trump administration and House Democrats agree on during these impeachment proceedings, but Judge Richard J. Leon brought them together — in opposition to him.
President Trump’s former deputy national security adviser, Charles Kupperman, filed a lawsuit seeking a ruling on whether to testify before the impeachment inquiry, a case closely watched by Trump figures past and present, John Bolton, Kupperman’s former boss and Mick Mulvaney, the acting White House chief of staff.
But lawyers for the House, in a filing late last week, said Kupperman suffered no injury and therefore had no standing to sue. “This case is moot,” the House argued.
At about the same time, the Justice Department filed an argument also saying Kupperman suffered no injury and had no standing. “This case is moot,” DOJ argued.
It’s moot because Leon, a district court judge in D.C. , made it moot. The suit was filed late last month, but Leon said he wouldn’t hear arguments until Dec. 10 — after the investigative phase of impeachment is due to end — and rule in late December or early January, likely after a House impeachment vote. The House withdrew its subpoena of Kupperman because Leon’s timing made it pointless. Lawmakers instead pinned hopes on a related case involving a subpoena to former Trump counsel Donald McGahn, which another judge on Leon’s court is handling with more urgency.
At this writing, Leon has yet to dismiss the now-meaningless suit. Why? My sources offer two explanations — neither benign. He may be keeping the case active so he’ll be assigned any other impeachment-related cases when filed. Or Leon, who led House GOP investigations of President Bill Clinton before George W. Bush appointed him to the court, recognizes the law does not support Trump’s monarchical view of absolute immunity from congressional inquiry — and therefore the best way to help Trump is to run out the clock on impeachment.
The oft-overturned Leon — he has been reversed in cases involving pay protection for home health-care workers, housing discrimination, the government’s telephone surveillance program and others — isn’t the only one dragging his feet in a way that benefits Trump. Another judge on the D.C. district court, Trevor McFadden, a Trump transition volunteer and Trump DOJ official before Trump appointed him to the court, has been similarly unhurried.
The House Ways & Means committee filed a lawsuit on July 2 requiring Trump to release his tax returns. The law is unequivocal; it says tax officials “shall” provide returns to the committee on request. But McFadden, who previously ruled against the House over Trump’s use of emergency funds for the border wall, still hasn’t heard arguments in the tax matter, 139 days after the suit was filed. Though not dismissing the case, he rejected the House’s request to expedite it.
Compare that with a similar suit over Trump’s taxes filed in the same court by the House Oversight Committee. Judge Amit Mehta (an Obama appointee) ruled in that case 28 days after it was filed.
McFadden is young and ambitious, and he benefits from not antagonizing Trump. Delay could be the safest option — because ruling in Trump’s favor would require some dubious legal reasoning.
Trump’s legal record has been bleak. Longtime adviser Roger Stone was convicted last week, following Michael Cohen, Michael Flynn, Paul Manafort, Rick Gates and George Papadopoulos. Two associates of Trump lawyer Rudy Giuliani have been indicted in the Ukraine affair.
Trump’s extraordinary claims of executive power have been smacked down resoundingly. Two appeals courts have ruled against Trump in his attempts to keep his tax records from Congress and a grand jury; Trump has appealed to the Supreme Court. He also lost a case in the D.C. district court last month to block Congress from access to grand jury materials from the Mueller investigation, and the administration’s argument that officials are immune from testifying received a skeptical hearing from a different judge.
The official impeachment resolution makes Trump’s legal position even more precarious. In an earlier dissent on one of the tax-return cases, Neomi Rao, a Trump appellate-court appointee, argued that investigating wrongdoing by the president must be done through impeachment.
House lawyers called Rao on that Monday. In the case involving Mueller’s grand-jury material, they told an appellate panel including Rao that the matter is “a key part of the impeachment inquiry.”
Will Rao follow her own standard from last month? Or will she find some way to escape the obvious legal conclusion?
The great district court Judge John Sirica, an Eisenhower appointee who held President Richard Nixon to account during Watergate, later explained why he rejected Nixon’s similarly specious claims of untouchable executive power. “I had no intention of sitting on the bench like a nincompoop and watching the parade go by,” he wrote.
Some of his successors in that courthouse seem to lack such qualms.
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