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John Roberts v. The Public Interest

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Josh Chafetz is appropriately scathing about John Roberts running interference for Trump:

First, Mr. Trump won, because we almost certainly won’t get to see his financial records anytime soon. The decision in the case arising out of the New York State grand jury investigation held that he does not have absolute immunity, but the Supreme Court sent the case back to the lower courts to consider challenges to the subpoenas at issue. Those proceedings will take some time to play out, and even records that are eventually turned over to the grand jury will be subject to secrecy rules. In the case dealing with the congressional subpoenas, Mr. Roberts threw out the lower courts’ decisions and told them to start over, this time with significantly greater deference to Mr. Trump.

So it is highly unlikely that the subpoenaed records will become public before the November election. And that is what Mr. Trump most cares about.

Mr. Roberts, too, comes out a big winner. He gets to posture as nonpartisan — after all, he refused to grant Mr. Trump absolute immunity from subpoenas. He gets to insist that not even the president is above the law. And he even got the entire Democratic wing of the court to provide cover by joining his opinion on the congressional subpoenas. Sure, the delays defeat the entire purpose of the subpoenas, but the judges will piously intone, as they have in the past, that they don’t think about things like the electoral calendar.

The decisions also subtly empower the institution — the judiciary — of which Mr. Roberts sees himself as the reputational guardian. It’s hard to read the two opinions together without getting the distinct sense that he sees the grand jury subpoenas as purer, more righteous, than the congressional ones. The congressional subpoenas, Mr. Roberts suggests, may lack any “valid legislative purpose,” which might allow the legislature to “‘exert an imperious control’ over the executive branch and aggrandize itself at the president’s expense, just as the framers feared.” The implicit message is that only the courts can be trusted.

If Mr. Trump and the chief justice are the winners, then who lost? First and foremost, the people did — we have now lost any realistic chance of knowing about Mr. Trump’s financial dealings before deciding whether or not to re-elect him to the presidency.

And relatedly, Congress lost. Congressional oversight has many purposes, but a central one is to communicate with the public, to make arguments about why certain policies are good or bad and why certain leaders should or should not be trusted. The court has dealt this public-facing role of Congress a serious blow.

It’s quite remarkable that someone could look at the last three and a half years and pretend to think there was a danger of Congress having an “imperious” control of the president, and this is the “moderate” Republican position. In his dissent Trollito* directly quoted the far-from-hinged dissent of the next Republican Supreme Court nominee in asserting that Congress exercising its oversight powers [over a Republican president] in non-impeachment contexts is “improper”:

And as Ian Milhiser observes, Roberts’s newly invented limitations on Congress’s power to perform oversight over the president (let alone Thomas and Alito’s arguments for essentially nullifying them) fly directly in the face of longstanding doctrine:

Prior to Mazars, the law governing the House’s power to conduct investigations was, if anything, even less favorable to Trump’s arguments than the law governing the Vance case. As the Supreme Court held in Eastland v. United States Servicemen’s Fund (1975), “the power to investigate and to do so through compulsory process … is inherent in the power to make laws” because without such a power, “a legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.”

Eastland held that Congress is entitled to gather information — and to use compulsory subpoenas to gather such information — whenever that subpoena is “intended to gather information about a subject on which legislation may be had.” So long as the congressional subpoenas sought information on a topic that could plausibly be subject to an act of Congress, those subpoenas were lawful.

The new rule announced in Mazars, however, can be boiled down into four words: “the president is special.”

I think this is also probably right on the obvious question of “what were the liberal justices thinking?”, while reminding us of how inept the House’s counsel was at oral argument:

It’s not immediately clear why the Court voted so overwhelmingly to create the new rules governing investigations into the president. One possible explanation is that Douglas Letter, the lawyer for the House, delivered an utterly disastrous performance at oral argument — he was repeatedly unable to answer obvious questions from the justices, such as what might be reasonable limits on congressional subpoenas, if the Court were to impose such limits.

Another possible explanation is that the Court’s liberals simply lacked the votes to order the House subpoenas enforced, so they decided that it was better to cast their lot with Roberts than to risk having their conservative colleagues unite behind a rule that was even more favorable to Trump.

The liberal justices may also have been concerned about too-aggressive probes into a potential Biden administration — although, as the holding in Mazars specifically concerns the president, a Republican-controlled Congress could still investigate Biden White House officials or members of his Cabinet.

Anyway, delivering a theoretical loss and practical win for Donald Trump is about as John Roberts as it gets. And as Paul says the theory is now handy to become practice as soon as a Democratic president is inaugurated.

*To my mind the best trolling in Alito’s two dissents, granting that the competition is fierce:

“If we allow Congress oversight power over the president, his ability to watch 12 hours of Fox News a day might be seriously constrained.”

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