Constitutional scholar Laurence Tribe told me that “it’s not just a minor point that the court has already determined that the guilty pleas were well founded and has accepted Flynn’s waiver of any right to appeal the conviction those pleas supported.” He argued that not only could U.S. District Judge Emmet G. Sullivan reject the attempt to short-circuit the judicial process but that he has to do so. “Notably, [Attorney General] William Barr isn’t arguing that there’s dispositive newly discovered evidence that was unavailable when the court made its determination to accept Flynn’s pleas of guilty,” he pointed out. Instead, “In the guise of appealing to the court’s discretion, Barr is asking the court to treat its earlier adjudication as merely advisory and to give effect to the decision by the executive branch that the advice should be rejected.”
In short, Sullivan need not play the role of rubber stamp for a president (with an assist from his attorney general) trying to hijack the legal process. Writing in the Boston Globe, Tribe explained:
Indeed, Barr is seeking not only to review and reverse the judgment already made by an Article III court in accepting Flynn’s guilty pleas as well-founded. He’s trying to exercise what amounts to a junior varsity pardon power to spare the president the burden of having to take the political heat for exercising the actual pardon power himself. Neither move by Barr is constitutionally permissible.
On Tuesday evening, Sullivan acted. The Post reports that Sullivan “said in an order Tuesday that he expects individuals and organizations will seek to intervene in the politically charged case. Having others weigh in could preface more aggressive steps that the federal judge in Washington could take, including — as many outside observers have called for — holding a hearing to consider what to do.” For now, then, Barr’s stunt is on hold, a victory in and of itself for the rule of law. At the very least, Sullivan has sent a message that Barr cannot expect the courts to automatically follow his demand in an extraordinary and obvious political abuse of the courts. “Emmet Sullivan has never been the type of judge to let DOJ off the hook easily when he thinks there is something amiss,” former Justice Department spokesman Matthew Miller told me. “I doubt he’s going to do so here." He added: "With the department completely abdicating its responsibility to represent the interests of the United States, this is an opportunity for others who care about apolitical law enforcement to speak up in court.”
Meanwhile, in the Supreme Court, the justices heard three separate but related cases concerning, first, Congress’s ability to subpoena financial records, including Trump’s tax returns from his accountants, and, second, whether he is “immune” from even the investigation of his tax returns by the New York district attorney. In both contexts, Trump takes maximalist positions: Congress has no power to subpoena his papers, and he is entirely free from even investigation of illegality, a position that seems to fly in the face of U.S. v. Nixon and the Paula Jones case that made clear the president is not immune from court processes, even if he cannot be prosecuted while in office.
The justices seemed to struggle with the congressional case, attempting to preserve Congress’s oversight power but prevent the president from being hounded unnecessarily by Congress. To that end, two justices, Ruth Bader Ginsburg and Sonia Sotomayor, made the case that Congress does not need to establish a legislative purpose in advance; investigation is an implicit part of Congress’s legislative function. Amy Howe, writing in SCOTUS blog, recounted:
Ginsburg seemed to suggest that requiring Congress to have a legislative purpose in mind when it issues a subpoena has the inquiry backward. You have to investigate to decide what kind of legislation you want to draft, Ginsburg scolded [deputy solicitor general Jeffrey] Wall. You want to figure out what the problem is first and then decide how legislation can address it. If a policeman on the beat stops a car and then later explains that he did so because the car ran a stop sign, courts aren’t allowed to second-guess the officer’s subjective motive, Ginsburg noted. “So, here,” Ginsburg concluded, “you’re distrusting Congress more than the cop on the beat.”Wall pushed back, agreeing with Ginsburg that Congress can investigate to figure out what kind of legislation might be needed. But when the president is involved in that investigation, Wall made clear, there is simply a higher standard because Congress doesn’t have as much leeway in regulating the president as it would in investigating anyone else and because “of the dangers of harassing and distracting and undermining the president.”
Justice Elena Kagan had the sound bite of the morning, observing: “What it seems to me [the president is] asking us to do is to put a kind of 10-ton weight on the scales between the president and Congress and essentially to make it impossible for Congress to perform oversight and to carry out its functions where the president is concerned.”
In this half of the argument, legal scholars general saw it as a close call, although the Supreme Court is unlikely to support Trump’s most extreme position — that Congress can never obtain a president’s papers. One option that might draw consensus (and get the justices out of the middle of a fight between the elected branches) would be a decision requiring some high standard of need or relevance, and then a remand back to the lower court to determine if Congress met that standard.
However, when it came to Trump’s argument that the New York district attorney could not even investigate the president, both liberal and conservative justices seemed highly skeptical, giving Trump attorney Jay Sekulow a tough time. Even conservative justices Neil M. Gorsuch and Samuel A. Alito Jr. seemed dubious as to why the Paula Jones case (which allowed for civil discovery) didn’t settle the matter. It was refreshing to see that even a justice handpicked by Trump (Gorsuch) was holding the line against an assertion of imperial power. Sekulow seemed stuck on one talking point: Trump was being harassed, and future presidents might be as well. He did not appear to persuade the justices.
The arguments of New York County District Attorney Cyrus R. Vance Jr. and his general counsel Carey R. Dunne got high marks from legal observers. Time and again, Vance and Dunne made the argument that the court was being asked to invest in Trump immunity protections that the courts previously disallowed.
If the Supreme Court in part or in whole rejects Trump’s far-fetched claims to be freed from the constraints of both law enforcement (New York’s district attorney) and congressional investigation, it will be a good day for the separation of powers and for the court’s own legitimacy. This would be especially helpful given that the court’s independence took a beating in the confirmation hearing of now-Justice Brett M. Kavanaugh, who lashed out at Democrats and accused them of a conspiracy to deny him his seat. It would be both ironic and satisfying if — after Republicans essentially “stole” a Supreme Court seat (refusing to give President Barack Obama’s nominee, Judge Merrick Garland, a hearing) and forced a justice enamored with executive power onto the bench (Kavanaugh) — one of Trump’s legacies was to diminish executive power for his successors.
A unanimous opinion on one or both of these cases might assist Chief Justice John G. Roberts Jr.'s ongoing struggle to assure Americans that “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.” Let’s see if the justices can prove it.