Yesterday was a momentous day in Washington. Three significant things happened.
The Supreme Court heard two related cases concerning Trump’s financial records. The first was whether Congress (three House committees) can subpoena Trump’s records from a third party. If the Court decides against Congress, it will effectively destroy the ability of Congress to conduct oversight and be a check on presidential power. If the Court decides for Congress, it will risk allowing investigatory powers that can be abused for vague and possibly political purposes. Justice Roberts may find some way to create a middle ground that limits the scope and lasting effect of the Court’s decision, but it’s hard to see or predict which way this case will go.
The second case was whether a New York State prosecutor can subpoena Trump’s financial records from a third party in a criminal investigation. This case seems harder for Trump to win. If the Court decides for Trump, it harms the ability of law enforcement to investigate crimes swiftly and effectively, especially crimes for which the president is not the only party being investigated. If the Court decides against Trump, it could allow future state prosecutors to “harass” a president with the undue burden of any number of subpoenas (though states have always had this ability and have not abused it). This case seems more likely to go against Trump. The court doesn’t want to say that prosecutors can investigate a president but can’t use their most powerful tool, the subpoena, and the court surely doesn’t want to say that the president can’t be investigated at all. So it seems likely that they will send this back to a lower court to determine if the subpoena meets all of the proper criteria.
As a lay-person who has never, until yesterday, heard Supreme Court arguments as they occurred, what struck me from yesterday’s deliberations was how little time each side had to give their argument, and how little time the Justices had to question the lawyers. It was like speed-dating for justice. Granted, the sides had already submitted giant briefs and filings that the Justices reviewed, but I always imagined that in-person Supreme Court arguments are lengthy and extensive. They are not.
The second significant development yesterday also occurred in the legal sphere. The judge presiding over the Michael Flynn perjury trial, who will soon be asked by the DOJ to drop the case, opened the door for other parties–such as the 2,000 former DOJ prosecutors who wrote a letter blasting Barr’s conduct–to submit briefs in opposition to Barr’s expected motion to vacate the case. This invitation slows the process and at least shows that the judge has doubts about the propriety of Barr’s decision. It’s a fascinating chess move. Stay tuned to this story.
Finally, members of the CDC gave testimony to the Senate yesterday, including currently quarantined Doctor Fauci. Fauci was asked many hard questions and gave answers that were often in direct opposition to Trump’s latest nonsense. For example, Fauci was gravely worried that opening up too quickly, without proper testing and tracing measures, would ensure a second and possibly worse wave of infection. Fauci was also skeptical that we would have a viable vaccine in 2020, but felt reasonably confident that we could have one in 2020. Here’s a good overview from the Washington Post:
Testing is the key to emerging from our lockdown, yet we are nowhere near a national, comprehensive system to test in adequate numbers to protect the public health. To understand the nuts and bolts of the testing challenges and testing supply chain, here’s an excellent article in Reuters by Chris Canipe and Travis Hartman with illustrations by Jeong Suh:
On The Last Word with Lawrence O’Donnell last night, Senator Chris Murphy from Connecticut perfectly nailed our current national situation:
No state is in compliance with the plan to reopen America because the plan to reopen America presupposes that every state has adopted a system of robust testing, tracing of contacts and quarantine. No state has done that. You know why? Because the federal government has refused to design, implement and pay for that system. And every single state, including mine, doesn’t have the resources to do that.
Keep asking, “Where are the tests?”
Keep resisting Trump and keep working to “vote his ass out of office.”