Very Important

May 21, 2019 11:35 a.m.

A highly knowledgable lawyer writes in the following about the Trump accounting firm subpoena …

Judge Mehta wrote a smart and detailed opinion. And his decision not to grant a stay pending appeal sends a strong message that he views Trump’s arguments as extremely weak.

Trump of course has appealed and will seek review in the Supreme Court if he loses in the court of appeals.

His goal is to run out the clock until the middle of next year, which will make it hard for the House to analyze the documents, conduct further investigations, and reach any conclusions before November 3. It also will mean that any conclusions will be lost in the swirl of a highly partisan election contest.

But the House can try to counter that strategy, if it starts right now.

The critical fact is that Supreme Court recesses for the summer at the end of June. In an ordinary case that it deems worthy of review, the Court would grant a stay to preserve the status quo pending its decision on the merits. And in an ordinary case in which there is a court of appeals decision in May or June or July, the Supreme Court would consider the petition for review at the end of September (or later), grant it, hear argument in the winter, and issue a decision by June 2020.

So if this case proceeds on the ordinary track, the earliest we’d have a resolution—and the House could get the documents (assuming Trump will comply)—would be Spring 2020. (Even if the Court were to grant the petition early and hear argument in October, drafting of dissenting opinions could tie up the case and prevent issuance of a decision.)

The House has to speed up the process dramatically.

First, when Trump files his motion in the DC Circuit Court of Appeals seeking a stay pending appeal, the House can both oppose the motion and urge the DC Circuit to accelerate its decision on the merits. The House could move for summary affirmance and in the alternative for a schedule that has merits briefs filed in the next ten days (the issues have been fully researched and argued – that won’t be a burden on the lawyers), an oral argument in the very beginning of June, and a decision quickly thereafter.

If Judge Mehta is affirmed, the House could urge the DC Circuit to deny a stay pending appeal and allow only a very short “administrative” stay of ten days to let Trump to seek a stay from the Supreme Court, which he will surely do. (If the DC Circuit doesn’t allow time for application to the Supreme Court, the Court will do it itself.)

The House would of course oppose issuance of a stay by the Supreme Court, but it also could tell the Court that if it is inclined to grant a stay and hear the merits of the case, it should do so on a very expedited schedule and decide the case before it recesses at the end of June. This case involves obstruction of core duties of the Congress, under long-settled law. And the information sought has nothing to do with the prerogatives of the Executive Branch, but rather Trump as a private citizen. The issue is time-sensitive and has to be resolved quickly.

A key reason for this approach, of course, is that in the absence of such requests it might be relatively easy for the five Republican appointees to vote for stay – asserting that it is what the Court usually does when there is a case warranting review on the merits that could become “moot” without a stay (here, because the House would get the documents). Forcing the Court to confront the fact that its usual time line means that grant of a stay is grant of a year’s reprieve for Trump—and presenting an alternative approach—makes clear to everyone the real-world effect of the supposedly “routine” stay.

Of course, the DC Circuit could rule for Trump. Then the House itself can ask the Supreme Court for rapid consideration of its petition for review, a short briefing schedule, quick argument, and speedy decision. There is a precedent for that – Bush v. Gore.

Latest Edblog
Masthead Masthead
Founder & Editor-in-Chief:
Executive Editor:
Managing Editor:
Associate Editor:
Investigations Desk:
Senior Editor for Content Strategy and Audience Development:
Editor at Large:
General Counsel:
Head of Product:
Director of Technology:
Associate Publisher:
Front End Developer:
Senior Designer: