Did Kavanaugh's Replacement, Neomi Rao, Show the Supreme Court a Path to Justify Trump's Defiance of Congress?

By David R. Lurie, The Daily Beast

17 October 19

Rao, whom Trump appointed, sided with his dubious contention that the Constitution provides the president with “enhanced protections” from impeachment.

onald Trump has been mocked for threatening to sue Nancy Pelosi and Adam Schiff to prevent his impeachment, but don’t laugh too soon. 

The Supreme Court may be poised to legitimize Trump’s desperate effort to stymie Congress’ impeachment investigation. The judge Donald Trump appointed to take Brett Kavanaugh’s place on a D.C. federal appeals court may have just blazed a trail toward a high court decision that could cement the court’s role as Trump’s protector, and gravely tarnish the Supreme Court’s reputation in the process. 

Last week, Judge Neomi Rao—a prominent conservative legal scholar, former Trump administration official, and long-rumored future Supreme Court nominee herself—dissented from a decision upholding a congressional subpoena to Trump’s accounting firm for tax returns and other financial information he has assiduously sought to hide since the 2016 campaign. 

Congress issued the subpoena before commencing its impeachment investigation into the president. Accordingly, the legal issue before Rao and her appellate court colleagues was whether Congress’ authority to engage in legislative oversight was sufficient to justify the subpoena. Trump’s lawyers argued to the court that such a request could only be justified as part of an inquiry into whether Trump engaged in potentially impeachable high crimes or misdemeanors.

As the well-reasoned majority decision demonstrated, however, Supreme Court precedents provide that Congress can conduct investigations that directly implicate and concern illegal conduct by the president and other Executive Branch officials in order to consider potential legislative options available to prevent misconduct in the future. Yet Judge Rao disagreed, in an opinion that many constitutional scholars observed was squarely at odds with settled law.

It may seem initially puzzling why Rao devoted the effort to providing an unconvincing argument that Congress is without the ability to conduct an investigation concerning misconduct by a government official in its legislative oversight role. After all, Congress has now begun an impeachment investigation that should ultimately allow the House to obtain the materials at issue, even under the argument Trump initially proffered to the appeals court. 

But Rao’s agenda clearly extends beyond the subject at hand. Her dissent appears calculated to provide judicial credence to the contention of Trump’s White House Counsel Pat Cipollone that it is “constitutionally invalid” for Trump to be impeached. 

Article I of the Constitution grants the House exclusive jurisdiction over presidential impeachment proceedings. Accordingly, Trump’s threat to “sue” to prevent his impeachment is as ridiculous as it appears. Indeed, in her dissent, Rao concedes that disputes regarding impeachment proceedings may not be “justiciable.” Yet Rao’s dissent nonetheless implies that Trump may be able to turn to the courts to frustrate, and challenge the legitimacy of, Congress’ impeachment investigation nonetheless. 

Like Trump, Rao asserts that the Constitution provides the president with a number of “enhanced protections” and procedural “safeguards” in connection with a House impeachment inquiry. As impeachment scholar Frank Bowman has explained, however, this claim is “specious.” While the Supreme Court has indicated that there may be some minimal procedural requirements for the Senate trial of an impeached government official (which amounts to a type of adjudication), there are no constitutionally mandated procedural standards or requirements for an impeachment by the House (which is the rough equivalent of a pre-trial indictment), let alone “enhanced protections” in connection with a House investigation preceding an impeachment vote. Furthermore, as Bowman explains, even if the Constitution imposed such standards, courts would not have any proper role in enforcing them. 

Yet embedded in Rao’s opinion is a hint of how the Supreme Court might nonetheless ride to Trump’s rescue, should it choose to adopt her (and Cipollone’s) extraordinary contention that Trump has “due process” rights in connection with an impeachment investigation. Just as Rao argues that the courts should police “illegitimate” legislative oversight investigations by refusing to enforce congressional subpoenas, her opinion likewise can be read to suggest that federal judges could stymie a “constitutionally invalid” impeachment inquiry by backing up Trump’s efforts to prevent Congress from obtaining access to witnesses and evidence.

Trump’s avowed attempt to stonewall the Ukraine investigation has faced early reverses, as key witnesses—such as former Ambassador to Ukraine Marie Yovanovitch and presidential adviser Fiona Hill—have complied with congressional subpoenas, despite White House efforts to limit their testimony. 

Nonetheless, Trump remains committed to preventing Congress from questioning key witnesses and obtaining critical evidence.  For example, according to Adam Schiff, the State Department is withholding potentially inculpatory documents, while Defense Secretary Mark Esper has reneged on a previous commitment to comply with a congressional subpoena at the instruction of the White House. Furthermore, Rudy Giuliani’s attorney recently responded to  a congressional subpoena by “adopt[ing] all the positions set forth in” Cipollone’s letter, and flatly refusing to comply.

Accordingly, it is highly likely that the Trump’s administration’s defiance of Congress’ impeachment subpoena power will reach the Supreme Court, possibly very soon.

If the high court is asked to rule upon Trump’s stonewalling, a majority of conservative justices may be tempted to endorse the Cipollone/Rao claim that Trump is entitled to procedural “safeguards” from impeachment, and to employ that claim as a rationale for excusing Trump’s defiance of Congress’ subpoenas.

One possibility is that the court could allow Trump to withhold witnesses and evidence unless Congress accedes to his vague demands for “procedural” protections against impeachment. Although such a ruling would not prevent Congress from impeaching the president, it could provide a stamp of legitimacy to Trump’s defiance that would be of great political value to the president.

If, however, a conservative Supreme Court majority chooses to legitimize Trump’s effort to prevent the Congress from holding the president to account for his abuses of power, then the high court would be openly serving as political ally and protector of the president, and could sacrifice its own legitimacy in the process.

It's Time for Effective Oversight of Police Violence

By Zenobia Jeffries Warfield, YES! Magazine

17 October 19

Would the possibility of mandatory sentencing make a police officer think twice before pulling the trigger? What about them having to forego their pensions, or pay victims’ families from their 401Ks?

tatiana Jefferson is dead.

The 28-year-old was shot and killed in her Texas home by a Fort Worth police officer on October 12. According to reports, the officer was responding to a nonemergency call for a wellness, or welfare, check. Jefferson’s neighbor made the call when he saw “both her front doors opened and all the lights on in her house” at 2 a.m.

Police body cam footage of the shooting shows the officer walking around Jefferson’s house for a little over a minute before yelling, “Put your hands up. Show me your hands [unintelligible],” and immediately fires his weapon. The officer—who is not heard identifying himself as law enforcement in the footage—claims he “perceived a threat,” according to a statement issued by Fort Worth police.

Some reports have described Jefferson as an Xavier University graduate, and social media posts include this information as if it’s why we should care that her life was violently taken by a public servant whose job was to protect her. But none of that is important in this context.

Jefferson’s death has compounded the rage and trauma from police violence felt by many in Black communities across the country, and is another example of two ongoing problems about policing in Black communities: How law enforcement sees us, and why we are hesitant to call on them for help.

The tragedy comes not even a week after the sentencing of former Dallas police officer Amber Guyger, who shot and killed Botham Jean, 26, in his home. Guyger’s defense was that she thought she was in her own home—she’d just gotten off duty—defending herself from an intruder, a threat.

When Mike Brown was killed by a Ferguson, Missouri, police officer 5 years ago, his shooter claimed he felt threatened. When Philando Castile, a licensed weapons carrier, was shot and killed in front of his girlfriend and her child during a traffic stop, his shooter, a Minnesota law enforcement officer, claimed he felt threatened. When Terence Crutcher was gunned down on the highway by an officer in Oklahoma, that officer claimed she felt threatened. When Charleena Lyles was killed in her home, the two Seattle police officers who fired the shots claimed they felt threatened by the “knife-wielding” pregnant mother of four small children, who was battling mental illness. Twelve-year-old Tamir Rice lost his life while playing in the park in Cleveland, because a police officer perceived him as a threat. Their stories, their deaths are only a handful among hundreds—Amadou Diallo, Oscar Grant, Eric Garner—of African Americans killed by police officers who saw them as threatening.

Ava DuVernay’s miniseries When They See Us, about the five Black and Brown teenagers who were wrongfully imprisoned for the death of a White woman, came out this summer and aptly gave this perceived threat a name. Some criticized the film’s title: “What difference does it make how they see us?” some fumed. “What matters is how we see ourselves.” While I partly understand this argument, the truth is the difference could be a matter of life or death.

Past tragedies have shown us that law enforcement is more likely to protect and serve non-Black and Brown communities, and continues to leave us with questions that can no longer go ignored. The next time a neighbor, friend, or family member is truly concerned about someone, will they even call for help? Had a wellness check been called for someone in a White community, would the officer have been so on the ready, with his weapon drawn? Or better yet, how do we get officers to respond with a protect-and-serve mindset when servicing Black communities?

The adoption of mandatory body camera policies is clearly insufficient to answer this critical question. Then what is?

These type of outcomes highlight the need for effective oversight of law enforcement agencies—oversight that will hold officers accountable for abuse and fatalities, while immediately implementing anti-racist policies, which, by the way, also affect non-Black and Brown people. Some anti-racism advocates are beginning to discuss the idea of police responsibility compensation, where officers who harm or kill unarmed people pay restitution to the survivors or victims’ families directly from their own pockets—not local governments’ coffers.

Would the possibility of mandatory sentencing make a police officer think twice before pulling the trigger? What about officers who kill unarmed citizens having to forgo their pensions, or pay victims’ families from their own 401(k)s?

Jefferson is one of about 700 people killed by law enforcement officers this year.  The Washington Post’s fatal force database has recorded 709 police killings, as of October 14. The number reached 992 in 2018.

What is it going to take to stop this madness?