This is wrong. There is a way to get a definitive answer from the federal judiciary by whatever date the House needs.
Consider death penalty litigation. The government sets a date and time of execution, often midnight in my experience working on death penalty cases as a Supreme Court law clerk or Ohio state solicitor. I still have vivid memories of constitutional challenges to the validity of a death sentence making their way, on an expedited basis, from federal district court to appellate court and then ultimately to the Supreme Court, within a 24-hour period.
My current area of expertise is election law, another field where the federal judiciary has shown itself capable of rendering definitive decisions by fixed deadlines set by other branches. Recall Bush v. Gore. The Florida Supreme Court ordered its recount on a Friday. The U.S. Supreme Court granted a stay Saturday. Oral argument was on Monday, and the court’s decision came on Tuesday, which was the “safe harbor” deadline set by Congress. The court felt compelled to render its decision by that deadline, and it did.
Bush v. Gore is hardly alone. In 2004, there was litigation over Ohio’s voting procedures leading up to Election Day, which was Nov. 2. On Oct. 31, the federal district court blocked Ohio from enforcing rules that permitted partisans to challenge the eligibility of voters at polling places. The federal appeals court overturned that order the next night. Then, in the pre-dawn hours of Nov. 2, shortly before polls opened, the Supreme Court upheld the appeals court, resolving the issue in time for voting to begin.
How is this relevant to impeachment?
The answer is that the House can set a fixed deadline for its vote on articles of impeachment. It can justify this deadline as the date by which its vote must occur so that a Senate trial does not unduly interfere with the 2020 election. This deadline is the functional equivalent of a scheduled execution or Election Day.
The House then can file an emergency motion in federal court, asserting that it needs the testimony of certain key individuals before this deadline. The House can explain that it will hold the impeachment vote with or without the testimony but that the public interest would be better served with the evidence, to which it is constitutionally entitled. Hence the need for expedited court action.
There is an additional practical argument in support of this emergency motion. Although the Senate would be constitutionally empowered in its impeachment trial to subpoena witnesses who did not appear before the House, the Senate might be disinclined to do so. This issue arose in the context of the Senate trial of Bill Clinton’s impeachment, but the Senate did not want to expand the scope of its review beyond what already had been considered in the House.
How important is it for the Senate to hear from acting White House chief of staff Mick Mulvaney, former national security adviser John Bolton, Secretary of State Mike Pompeo, Trump lawyer Rudolph W. Giuliani and Energy Secretary Rick Perry, among others? Based on the testimony of U.S. Ambassador to the European Union Gordon Sondland, these witnesses could provide crucial insight to help the Senate decide on the severity of President Trump’s conduct and whether his removal from office is the appropriate remedy — or whether censure would be more appropriate instead.
If multiple high-level officials themselves confirm having worked with Trump to withhold military aid to Ukraine unless President Volodymyr Zelensky publicly announced an investigation designed to aid Trump’s reelection campaign, the magnitude of that misconduct might be enough to warrant Trump’s removal from office. Conversely, if Trump’s mention of Joe Biden during his July 25 phone call to Zelensky was an offhand remark, without the planning and implementation of senior advisers, then perhaps censure is the better congressional response to this less extreme abuse of power.
But to make this judgment, the Senate must hear from key witnesses. And to assure that the Senate does so, the House must go to court to obtain their testimony.
As long as the House specifies its impeachment deadline, explaining the election-related need for urgency, I am confident that the federal judiciary — including the Supreme Court — can and will definitively rule on the House’s emergency motion in the required time frame. It has done so before.