Editorial: Democrats must force the hand of the Supreme Court

photo by: Journal-World Photo Illustration

Lawrence Journal-World Editorial

Hopefully, the American people still believe in the system of checks and balances.

President Donald Trump seemingly thinks a check is nothing more than a piece of paper that occasionally bounces. Checks and balances, though, are fundamental to the preservation of our form of government. At one point in time, even the kids who slept through most of civics class understood that point.

That creates an open question about what many members of Congress were doing in civics class, because large numbers of representatives seemingly don’t put much stock in the system these days.

That judgment isn’t made by whether a member of Congress supports or opposes this particular impeachment case. Rather, it is better made on whether they support or oppose the idea of compelling certain members of the Trump administration to testify.

To refuse to comply with a congressional subpoena to testify on the grounds of executive privilege is a farce. For one, those doing so don’t know every question that the congressional panel may ask, so how can they know that every answer would involve matters that even qualify under the definition of executive privilege? But more importantly, if executive privilege has become a more important part of our system of government than checks and balances, then the system is broken.

Democrats ought to do all they can to fix it, but it appears they won’t. Three key Trump executives who really must be interviewed are John Bolton, Mick Mulvaney and Rick Perry. If Democrats don’t do everything they can to interview those three, then they will have failed in running a legitimate impeachment process.

At this point, getting those three to testify is probably the biggest, longest-lasting victory Democrats can hope for. It will set an important precedent that the Office of the President can’t simply give a one-finger salute to Congress. That precedent would last long beyond the age of Trump.

How can Congress do this? By getting the third actor who is lurking off stage involved in this drama. Congress must force the hand of the Supreme Court. Edward B. Foley, the chair in constitutional law at Ohio State University, presented a good strategy on how to do so in a recent guest opinion piece in the Washington Post.

He correctly notes that the Supreme Court can act quickly on matters. It has done so both in cases of stays of execution and matters involving election law. Remember how quickly the Gore v. Bush election case made it to the Supreme Court?

Foley basically suggests using that model to force the Supreme Court’s hand. The House of Representatives should set a deadline for ending its impeachment proceedings. The rationale for the deadline can legitimately be tied to the upcoming elections. If this process goes on too long, it will create problems in running an orderly election.

That deadline opens the door for lawyers to ask the Supreme Court for expedited action. Based on past practice, there is reason to believe the Supreme Court would grant such action.

Perhaps House Democrats aren’t pursuing this strategy because they are afraid the Supreme Court won’t side with them and thus will create a precedent that weakens congressional power for years to come.

If that is their fear, then the Democrats darn well should have listened to the pragmatists who argued against impeachment because it was clear that conviction would be very difficult.

Instead, Democrats chose to gamble. Now, they may need to adopt the frightening philosophy of the gambler: In for a dime, in for a dollar.

If only we were betting with dollars.


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