The Courts Can Move Quickly. They're Slow-Walking Trump Cases on Purpose.

By Barry Friedmann and Dahlia Lithwick, Slate

12 January 20

Don’t be fooled into thinking this isn’t a decision.

ne thing few people know about the architecture of the U.S. Supreme Court building concerns the turtles. They are built into the lampposts around the exterior courtyard of the building. They are adorable, but they are also meaningful—they are meant to signify the slow deliberative pace of justice. Justice Sandra Day O’Connor liked to call attention to the turtles as emblematic of an institutional virtue in a high-speed world: “They move slowly,” she said, in 2005. “That’s what we do.”

Justices and judges may pride themselves on not being rushed into precipitous action, but the judiciary also has the capacity to move very quickly when circumstances demand it. That’s why it is particularly noteworthy that the current failure to move things along is so advantageous to Donald Trump and his chances for success in the November 2020 election, and also so obviously disadvantaging the Democratic-held House of Representatives. One could be forgiven for starting to wonder whether the courts are taking sides but doing it in a way that looks measured and restrained. The thing is: Sometimes not resolving an exigent case is a decision.

It’s been clear for some time now that the beating heart of this president’s litigation strategy is an effort to run out the clock on issues ranging from the subpoenas of his financial records to his blanket refusals to permit anyone in his ambit to testify before Congress. As the New York Times’ Charlie Savage put it in November: “Like a football team up late in a game whose defense hangs back to prevent big plays while letting its opponent make shorter gains, Mr. Trump’s legal team is looking to run out the clock, putting forth aggressive legal theories often backed by scant precedent. The strategy risks periodic bad headlines in the short term and could lead to definitive rulings that hamstring future presidents—but it is demonstrably advantageous for consuming time.” Indeed, when House Democrats essentially opted to give up on any hope for relief in the federal courts because, as Adam Schiff put it last fall, “we are not willing to go the months and months and months of rope-a-dope in the courts, which the administration would love to do,” the decision was taken to mean Democrats had given up on witness testimony altogether in the House proceedings. They hadn’t, but that statement may well come back to haunt Senate Democrats who now are facing the prospect of a trial without additional witness testimony of any sort. Having opted not to wait for court rulings requiring testimony from Don McGahn and John Bolton, the door now may have closed on the opportunity to hear from them voluntarily.

What’s stunning is the degree to which the courts are complicit in all this. The courts have aided and abetted the Trump legal team and Mitch McConnell by refusing to behave as if time is a factor in any of these proceedings. That’s evident in the decision to docket a pair of financial records cases no earlier than March and the meandering pace of the gamesmanship around a case seeking to end the Affordable Care Act through judicial fiat. But the real coup de grâce was the failure of the Supreme Court and lower federal courts to resolve congressional subpoenas around the impeachment process with alacrity when it was altogether plain what was needed. Had the courts signaled a willingness to act at a pace befitting the needs of the moment, Schiff might have made a different choice. Sometimes the appearance of studied deliberation serves nihilism and chaos, even as it pretends at neutrality and institutionalism.

It didn’t have to be this way. Chief Judge John J. Sirica of the U.S. District Court for the District of Columbia insisted that the Watergate tapes case play out so quickly that the White House was caught off guard and unable to formulate a workaround in time. The Supreme Court heard the Nixon tapes case on July 8, 1974, after the term had ended. It issued its unanimous ruling a few weeks later. In 1942, during World War II, Franklin Roosevelt wanted to execute some German saboteurs who came to Long Island by submarine—and he wanted to do so quickly. The eight defendants were tried by military tribunal lickety-split. When the constitutionality of this use of military tribunals was challenged—some of the alleged saboteurs were American citizens—the Supreme Court interrupted its carefully guarded summer recess, heard extra-long arguments on July 29 and 30 of 1942, and issued its judgment, giving its unanimous OK on the July 31. (So anxious were the justices to rule quickly that the actual opinion justifying the ruling did not come out until the end of October, long after the men had been executed in the electric chair.) Justices have heard emergency petitions in far-flung places, including a 1973 hearing over a petition to stop the military from bombing Cambodia that took place in a courthouse near Justice William O. Douglas’ home in the mountains of Washington state. When William Barr’s Justice Department has asked that the high court rush cases onto its docket, sometimes even before intermediate courts have ruled, the Supreme Court has accommodated. When stays of execution are requested in death penalty cases, they seem to fly through the courts on their way to being denied.

If you really want to talk about haste, there is always the breathtaking example of the court moving expeditiously to award the election of 2000 to George W. Bush. The warp speed at which that intervention took place proves quite a contrast to the justices’, and several lower courts’, signaling of their own virtuousness in refusing to be rushed into action around anything involving the 2020 elections. Time and time again in recent years the courts have shown that exigency is in the eye of the beholder, and that the exigencies around the citizenship census question or the transgender military ban are manifestly more vital than those around Trump’s flouting of the rule of law. Some optimists had flagged Chief Justice John Roberts’ recent use of the word dispatch in his description of judicial work in his State of the Judiciary report last week as a supposed signal that he has some interest in hastily resolving urgent matters. And yet, the chief justice has shown little taste for inserting his court into the current political maelstrom beyond his recent warnings that, in general, political maelstroms are unseemly and unfortunate.

You are entitled to wonder: What exactly determines whether federal cases move along quickly or slowly? For what it is worth, there are procedures and rules governing when relief is available quickly. But then there’s also the whim of judges (the legal term for this being discretion) in controlling their own calendars. It’s a mystery precisely why Judge Richard Leon could not move along the requests for congressional subpoenas more quickly than he did in the U.S. District Court in D.C. After all, this was the House of Representatives—a coordinate branch of government—in an impeachment proceeding, seeking nothing from the judiciary but ordinary help with judicial process. It was his job to get the job done. He was on track to get there, at ferocious turtle speed, yes, but no faster.

So, yes, you’re also entitled to peek around on the internet and see which presidents (Democratic ones or Republicans) appointed which judges—and then compare that with how they have ruled on matters in which time is of the essence and consequential issues around executive power, checks and balances, and the rule of law were at issue. You may find it a sad exercise. This president has benefited at almost every turn from a judicial presumption that someone else needs to rein him in.

Make no mistake: It is a choice to ignore a congressional subpoena, and it is a choice to claim that only a court can resolve that impasse. When that choice is taken by the president, it seems fair to ask that the courts resolve the matter with something more prompt than the “all deliberate speed” with which they allowed desegregation to drag on for years and years after Brown v. Board of Education. Sometimes, not resolving a case in time for relief of any kind is a decision. Calling it lofty institutional deliberation instead of a dodge is a play to the court of public opinion, but not a court of law.

Pence and Pompeo Pushed for the Killing of Suleimani

By John Cassidy, The New Yorker

12 January 20

 

he Trump-Iran story continues to develop in alarming ways. On Thursday, reports that Western governments believe Iranian military forces mistakenly shot down a Ukrainian passenger jet, killing a hundred and seventy-six passengers and crew members, produced a predictably divided reaction. “Innocent civilians are now dead because they were caught in the middle of an unnecessary and unwanted military tit for tat,” Pete Buttigieg, the Democratic Presidential candidate, said, on Twitter, immediately drawing cries of outrage from Trump supporters who insisted that Iran was entirely responsible. Iran’s government dismissed the reports as disinformation. But, if it does turn out that the Iranian military made a terrible blunder amid the frightening escalation in long-running tensions between Tehran and the Trump Administration, it will be ever more imperative to get a full account, not only of that blunder but also of the escalation.

On that subject, more disturbing details are emerging by the day. The picture we are getting is of the Secretary of State, Mike Pompeo, and Vice-President Mike Pence both egging on an impetuous President to launch the January 2nd drone attack that killed the Iranian military commander Qassem Suleimani at Baghdad International Airport. None of Trump’s other senior political or military advisers, meanwhile, appear to have urged restraint, despite the near-certainty that the move would inflame the entire Middle East and provoke reprisals. Any deliberative policymaking process appears to have been replaced by a combination of belligerence, toadyism, and saluting the Commander-in-Chief.

In the aftermath of Suleimani’s death, members of the Trump Administration claimed that Suleimani, who held great sway over Iran’s regular and irregular forces, was plotting an imminent attack that could have killed hundreds of American service members. Pompeo said, “We had deep intelligence indicating there was active plotting to put American lives at risk.” Trump told reporters at the White House on Thursday, “We did it because they were looking to blow up our embassy.”

The Administration didn’t present any evidence to back up these assertions. On Wednesday, when it finally briefed Republican legislators about the rationale for the Suleimani killing, two senators—Mike Lee, of Utah, and Rand Paul, of Kentucky—walked out of the meeting and publicly trashed the material that had been presented. “I didn’t learn anything in the hearing that I hadn’t seen in a newspaper already,” Paul told reporters. “None of it was overwhelming that X was going to happen.” Lee was even more scathing. Outraged by suggestions from the briefers that Republican senators would be “emboldening Iran” if they even debated the wisdom of further U.S. military actions, Lee called the session “probably the worst briefing I have seen, at least on a military issue, in the nine years I’ve served in the United States Senate.”

Meanwhile, Pence fell back on an old evasive tactic: claiming that the Administration did have real and convincing intelligence to justify the missile strike, but saying that it was too sensitive to be revealed, even in a private briefing on Capitol Hill. “We’re simply not able to share with every member of the House and Senate the intelligence that supported the President’s decision to take out Qassem Suleimani,” Pence told Fox News. “I can assure your viewers that there was—there was a threat of an imminent attack.”

Detailed reports from a number of different media outlets, as well as statements by Iraqi officials, tell a very different story. Just two days after the strike, the Times’ Rukmini Callimachi, in a Twitter thread, cited sources, “including two US officials who had intelligence briefings after the strike on Suleimani,” who said the evidence of an imminent attack was “razor thin.” In the Times itself, a tick-tock account of the decision to kill Suleimani quoted a U.S. official who described the Iranian’s visit to Damascus and Baghdad over the New Year as “business as usual.” Last weekend, Adel Abdul Mahdi, the Prime Minister of Iraq, told the parliament in Baghdad that Suleimani was scheduled to meet him on the day he was assassinated, adding that the general was bringing a response to efforts to mediate the showdown between Riyadh and Tehran. “He came to deliver me a message from Iran responding to the message we delivered from Saudi Arabia to Iran,” Mahdi said.

Pompeo subsequently mocked this claim, saying, “We’ve heard these same lies before.” The fact that Suleimani was met at the Baghdad airport by the head of the pro-Iranian militias inside Iraq, Abu Mahdi al-Muhandis, who was also killed by the missile attack, suggests that he may have had other reasons for his visit. But, eight days later, it remains true that the Trump Administration hasn’t provided any evidence that a large-scale attack was imminent. By the time Suleimani arrived in the Iraqi capital, the violent protests outside the American Embassy had ended, and Iraqi forces had re-secured the heavily fortified Green Zone, within which the Embassy is located.

Also, more details are emerging about the roles played by Pompeo and Pence in the decision to assassinate Suleimani. Pompeo and Pence “were two of the most hawkish voices arguing for a response to Iranian aggression, according to administration officials,” the Times reported, a couple of days after Suleimani’s death. “Mr. Pence’s office helped run herd on meetings and conference calls held by officials in the run-up to the strike.”

On Sunday, the Washington Post, citing a senior U.S official, reported that “Pompeo first spoke with Trump about killing Suleimani months ago … but neither the president nor Pentagon officials were willing to countenance such an operation.” On Thursday, CNN’s Nicole Gaouette and Jamie Gangel reported that “Pompeo was a driving force behind President Donald Trump’s decision to kill” the Iranian general. The CNN story said that Pompeo, who was the director of the Central Intelligence Agency under Trump before he moved to the State Department, viewed Suleimani as the mastermind of myriad operations targeting Americans and U.S interests. It also quoted an unnamed source close to Pompeo, who recalled the Secretary of State telling friends, “I will not retire from public service until Suleimani is off the battlefield.”

We are also learning more about the roles that other senior members of the Administration played in the process that led to the drone attack on Suleimani, including Gina Haspel, the current director of the C.I.A. “In the days before General Suleimani’s death, Ms. Haspel had advised Mr. Trump that the threat the Iranian general presented was greater than the threat of Iran’s response if he was killed,” the Times reported on Wednesday. “Indeed, Ms. Haspel had predicted the most likely response would be a missile strike from Iran to bases where American troops were deployed, the very situation that appeared to be playing out on Tuesday afternoon.”

On Thursday, the Wall Street Journal, in yet another lengthy account of the Administration’s decision-making, reported that all of Trump’s top advisers, including “new Secretary of Defense Mark Esper, new chairman of the Joint Chiefs of Staff Mark Milley and new national security adviser Robert O’Brien … backed the president’s decision to kill the top Iranian military commander and moved swiftly to carry it out. The new team was cohesive and less inclined than its predecessors to push back against the president’s wishes, according to administration officials and others consulted by the White House.”

Not that Trump needed much encouragement, it seems. “In the five days prior to launching a strike that killed Iran’s most important military leader, Donald Trump roamed the halls of Mar-a-Lago, his private resort in Florida, and started dropping hints to close associates and club-goers that something huge was coming,” the Daily Beast reported, quoting unnamed people who had been at Trump’s resort over the New Year. “He kept saying, ‘You’ll see,’ one of the sources recalled, describing a conversation with Trump days before Thursday’s strike.” We did see, of course, and the reverberations are far from over.