Judge Jackson has denied the request for a stay in enforcing the House subpoena directed to Donald McGahn. I have posted a copy of the memorandum opinion.
One part of the opinion seems to me to clearly be directed at thwarting the use of appeals to simply delay the process. The Court distinguishes the McGahan case and, by extension, all of the other cases attempting to defeat subpoenas directed to the Trump Administration, from the opinion in Comm. on Judiciary, U.S. House of Representatives v. Miers (Miers
Stay Opinion), 575 F. Supp. 2d 201, 204 (D.D.C. 2008). At page 6 of the slip opinion, the Court notes:
Miers was a case of first impression, whereas, now, two federal district court judges have addressed the same legal issues concerning both the authority of the federal courts to entertain a disputed subpoena-enforcement claim brought by the House Judiciary Committee after a former White House Counsel refused to testify before Congress in response to a valid subpoena; and also the President’s assertion that senior-level presidential aides have absolute testimonial immunity. And both judges rejected the Executive branch’s contentions—a track record that had not developed at the time that the D.C. Circuit considered the stay motion in Miers.
And, on page 16 of the slip opinion, the Court states:
[T]he fact that the issuance of a stay of McGahn’s testimony would
Emphasis by the Court.
impede an investigation that a committee of Congress is undertaking as part of an impeachment inquiry is yet another distinction between the instant circumstances and those that existed when the D.C. Circuit stayed the district court order in Miers.
If the Courts continue to enforce the Congressional subpoenas and refuse to delay their enforcement, Senate acquittal will no longer be certain.
“If the Courts continue to enforce the Congressional subpoenas and refuse to delay their enforcement, Senate acquittal will no longer be certain.”
In the dreams of children!
Conviction in the Senate requires a 2/3 majority of all those present. If the parade of witnesses brings copies of letters from President Trump to V. Putin offering money in exchange for hacking our elections, and videos of President Trump offering … etc., it will not budge the needle. A two-thirds majority in the Republican-controlled Senate is about as likely as the Senate suddenly passing far-reaching legislation controlling greenhouse emissions, subsidizing non-carbon renewable energy, and strengthening protections of our forests, our wildlife, and our in-shore waters.
Hamilton explained it in Federalist No. 65. I can’t see that anything has changed in that regard in the last two centuries.
If true, sad and depressing. However, if the floodgates of evidence open, the resulting public outrage may be too great to ignore.
I’ve got a tangentially related ethical question:
Suppose you’re a prosecutor, considering a murder case. You’ve got rock-solid physical evidence, and you’re certain that your defendant is guilty. You also, however, know that in the venue where you’ll be trying the case, it’s overwhelmingly likely that the jury will vote to acquit despite the strength of your case.
Do you have an ethical obligation to drop a strong case that’s virtually certain to fall to jury nullification?
A thoroughly realistic question, and one that I assume has actually arisen for a significant number of prosecutors, although in real life there would likely be at list a bit of gray in the shading. I would suspect that the decision has gone both ways. Given the high discretion of prosecutors over what cases to bring, and the need to consider matters extrinsic to a particular case such as resource allocation, it is not likely it would come down to a strict ethics decision. In response to your direct question, however, I cannot see that it could be unethical to proceed with such a well-justified case, even in the face of “virtually certain . . . jury nullification.”
A valid prosecutorial concern could be the attachment of “double jeopardy estopel” if the case is brought and fails. If the prosecutor has some expectation that future years might see juries more disposed to judge by the evidence, rather than their personal biases, then withholding prosecution now might be a sound tactic.
It’s probably a theoretical justification (particularly for a crime with no statute of limitations) but except for a one in a million situation cases tend to deteriorate so, as a practical matter, if the case is there it’s either now or never.
The other problem that I see is that this line of thinking lends itself a bit too easily to self serving rationalization. Which ultimately leads to a legal system with special rules for special people.
Doesn’t that describe the decision faced by prosecutors in the cases of of crimes committed by white terrorists in the southern US in the 1960s? Eventually at least some of the conspirators were tried and convicted on other charges. The record also suggests that an unethical prosecutor might proceed with a case they knew they were going to lose, as a sort of inverse show trial.
The two problems with such an approach is that cases tend to not to age well. So if you’re in a position to bring a strong case, that’s what the ethical prosecutor should do. The other problem with a wait until the stars are perfectly aligned is that prosecutors will tend not bring unpopular cases even as they preen themselves about being on the right side of history.
As a former prosecutor, I would say that you’re supposed to do your job and assume that others in the system such as judges and jurors will do the same.
If they won’t convict for a corrupt reason, you expose the corruption, you try to persuade the people that corruption is bad and you prosecute both the corrupt and the corruptors.
If the judges and jurors won’t convict because they are bigots, I think you still have to do your job even if others won’t do theirs.
Either way I think the ethical prosecutor has to do what’s right and play out the hand.