The McGahn case was litigated by the House of Representatives, which sought to compel the testimony of Trump’s former White House lawyer at Trump’s impeachment trial. Today ruling means the House cannot use the Courts to enforce subpoenas against the Executive Branch.
Question: Why doesn’t Article 3, Section 2 apply? Surely a White House lawyer falls under “ambassadors, other public ministers and consuls.”
Answer: (1) It did apply at the District Court level, when the House won. (2) It doesn’t apply at the appellate level because two of the three judges were appointed by Republicans, and Republicans abjectly bow and follow Trump’s wishes. The ruling was 2–1 in favor of Trump.
You might think that forcing testimony no longer matters, since Trump was acquitted by the Senate. But it does matter, because now Trump can legally ignore House requests for any kind of testimony. And there may yet be another impeachment hearing.
During the trial, the House lawyer, when pressed by the judges as to whether the House had other remedies beside the court, mentioned the House could send the Sergeant-at-Arms to arrest Trump’s former lawyer. That would be interesting, since it hasn’t been done in a very long time.
Of course, there are other remedies, just not timely ones. The House can refuse to pass budget bills (they already blew that for FY2021) or ask the Senate to stop approving Trump’s nominees (McConnell won’t do that). There is also, of course, the 2020 election, but it’s anyone’s guess what will happen in November. In any event, that’s hardly a timely remedy.
Short of the economy crashing (which it might do), Trump is becoming virtually unstoppable. The Senate won’t stop him, and now the Courts demonstrate they can’t be relied upon to protect the the Constitution. Trump did lose an immigration case earlier this week, and he has lost a few other cases, mostly related to immigration, but he’s highly unlikely to lose a Supreme Court case. Overall, he’s steadily amassing personal power.
Even if there are economic problems prior to the election, he can blame it on the coronavirus (which might be true) and unprincipled opposition. He’s already trialing “the media and the Democrats are spreading fake news” about the virus and the economy.
It might satisfy his base, unless they’re too sick to listen. The rest of us might reasonably ask, “Why did you gut the government’s infrastructure for responding to epidemics? And why the hell didn’t you prepare for the coronavirus when reports first indicated it was going to spread globally?”
He’ll say, “I closed the borders and asked Congress for money.” He did close the border to travelers from China, but that will do nothing to stop the community transmission of the virus. Community transmission is one in which there is no identifiable contact with, say, someone who visited China. Apparently, this has already happened in California. Trump also wanted to take money set aside to respond to other health emergencies, like Ebola, but that doesn’t seem wise.
But, really, until the stock market dropped precipitously, there was little indication that Trump was taking the virus pandemic seriously. Not a wise move on his part.
How seriously does he take it now? Well, he reassured Wall Street traders over and over and over again. Oh, and he appointed Vice President Pence to oversee the coronavirus effort. Pence’s last foray into epidemic response was botching an HIV epidemic while he was governor of Indiana. He wanted people to pray instead of getting clean needles. Appointing him to oversee a pandemic doesn’t seem to be very wise.
After Trump closed the borders, he allowed Americans from a cruise ship to fly back to the U.S. On the flight, sick passengers mingled with those who were not sick. That doesn’t seem like a wise thing to allow. Staff on the ground were apparently unprepared for the requirements of isolation, and there are news reports that workers are coming and going from the isolation facility without taking adequate precautions. That’s also not very wise. That is, in fact, how epidemics spiral out of control.
Trump is amassing unaccountable power, yet no one seems to be in charge. That doesn’t seem to be very wise.
