Neomi Rao (Photo by Alex Wong/Getty Images)
Donald Trump lost in court again in his fight to ignore Congressional subpoenas with the brazen surety of Charles I. The D.C. Circuit ruled that his accounting firm, Mazars USA, must comply with a Congressional subpoena, because of course they must comply with a Congressional subpoena, and Trump’s argument that they don’t have to comply with a Congressional subpoena is and always has been deeply stupid and flawed.
You can read the full opinion against Trump here. It’s not particularly interesting. Trump is making a bad argument, and Clinton appointee Judge David Tatel explains why his argument is bad. It takes many pages. I am not a circuit court judge, in part because my opinion would have been, in its entirety: “Mr. Trump, what you’ve just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent filings were you even close to anything that could be considered a rational legal thought. Everyone in this court is now dumber for having listened to it. It is so ordered, and may God have mercy on your soul.”
But will the bad, legally incoherent arguments Trump makes to defend himself matter to Republican judges or judges that Trump himself has appointed? The integrity of Trump judges is in serious doubt. Today, in dissent, Trump appointee and Clarence Thomas acolyte Neomi Rao did nothing to assuage the fears that Trump judges will rule for Trump, rule of law be damned.
Neomi Rao is a problem. Everybody knew she’d be a problem when she was nominated to replace (wait for it) Brett Kavanaugh on the D.C. Circuit. Rao has been an open conservative troll since college, existing to surface the worst Republican talking points with a lacquer of legal jargon to make them sound somehow more acceptable. She’s what Tomi Lahren would sound like if Tomi Lahren got hooked on phonics.
But Rao has risen in Federalist Society circles precisely because she functions as a kind of legal Id for what the conservatives really want to do. She will “go there.” She will “say that.” Her arguments are facially laughable and need to be cleaned up by conservative brethren who are a little more devious and write with a little more polish, but Rao gives voice to the dark core of their thoughts.
And so it is in this dissent. Her critical point here is that Congress has the power to subpoena Mazars, but not under their oversight power, only under their impeachment power. Because Congress has failed to vote on a “formal impeachment investigation,” Rao argues that Trump and Mazars are free to treat Congressional subpoenas as if they don’t exist.
Here it is in her own words:
As explained below, allegations of illegal conduct against the President cannot be investigated by Congress except through impeachment. The House may impeach for “Treason, Bribery, or other high Crimes and Misdemeanors,” U.S. CONST. art. II, § 4, and has substantial discretion to define and pursue charges of impeachment. See The Federalist No. 65, at 338 (impeachable offenses “are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself”). While it is unnecessary here to determine the scope of impeachable offenses, Congress has frequently treated violations of statutes or the Constitution as meeting this threshold. Impeachment provides the exclusive method for Congress to investigate accusations of illegal conduct by impeachable officials, particularly with the aid of compulsory process. Thus, the key determination is whether this investigation targets allegations Congress might treat as “high Crimes” or “Misdemeanors.” To make this determination requires no search for hidden motives, but simply crediting the Committee’s consistently stated purpose to investigate “illegal conduct” of the President. Cummings Memorandum at 4; cf. Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 508 (1975) (“[I]n determining the legitimacy of a congressional act we do not look to the motives alleged to have prompted it.”).
The Committee’s stated interest in remedial legislation may support any number of investigations, including into the conduct of agencies and how officials administer the laws. Yet a legislative purpose cannot whitewash this subpoena, which— by the Committee’s own description targets allegations of illegal conduct by the President. The most important question is not whether Congress has put forth some legitimate legislative purpose, but rather whether Congress is investigating suspicions of criminality or allegations that the President violated a law. Such investigations may be pursued exclusively through impeachment. The House may not use the legislative power to circumvent the protections and accountability that accompany the impeachment power.
None of the above is correct. None of it. Neomi Rao has here made up a standard that does not exist, to support the political opinion of the man who appointed her. Let’s do a close read of the first paragraph:
- [A]llegations of illegal conduct against the President cannot be investigated by Congress except through impeachment. — The Constitution doesn’t even talk about impeachment “investigations.” It simply identifies the process of impeachment as the only way to remove a president from office. From a Constitutional perspective, impeachment “inquiries” can happen however the hell Congress wants them to happen. There’s no Constitutional provision saying that the House has to formally vote to conduct an “inquiry.” The Constitution simply requires the House to vote to bring a formal impeachment CHARGE, which is then litigated in the Senate. At this point, “following Donald Trump on Twitter” counts as an “impeachment inquiry,” if Congress wants it to.
- While it is unnecessary here to determine the scope of impeachable offenses, Congress has frequently treated violations of statutes or the Constitution as meeting this threshold. — This is Rao teeing up a later lawsuit where Trump will say, “I cannot be impeached because I didn’t directly violate a statute, PRESIDENTIAL HARASSMENT!” And everybody saying “so,” but Rao saying, “Yes, my liege.” She’s right to say that a discussion of what constitutes impeachable offenses at this time is “unnecessary,” which is why her throwing this in there is so obviously partisan and hackey.
- Thus, the key determination is whether this investigation targets allegations Congress might treat as “high Crimes” or “Misdemeanors.” — It’s hard to emphasize enough how facially stupid this argument is. Under this logic, ANY oversight of the President of the United States MUST BE attendant to a formal vote of an impeachment inquiry. This is lunacy. Rao is arguing that the Constitution requires process (impeachment inquiry vote) that the Constitution does not specify, in order to access a power that the Constitution grants (oversight authority), if Congress is even thinking of maybe one day exercising a duty the Constitution charges to Congress (bringing impeachment charges).
The second paragraph repeats the faulty logic of the first, but more stridently for people who are easily impressionable.
Now, one might ask why I’m spending so much time dissecting a bad dissent from a troll in a robe. Rao lost; who cares how she came up with the wrong answer? Well, I care because the bad argument laid out in this dissent is precisely the bad argument Chief Justice John Roberts will be pressured to adopt in a majority opinion if the Supreme Court grants cert on this coming appeal.
If Roberts, along with the other conservatives — two of whom owe their positions to Donald Trump and one of whom was credibly accused of attempted rape — decides they want to try to save the president, some version of Rao’s argument is what they’re going to go with. They’ll try to find a way to preserve the Congressional subpoena power (because Jesus Christ, the separation of powers DEMANDS that they preserve the Congressional subpoena power), but create, whole cloth, a new Constitutional process for Congress to exercise that subpoena power. “Originialism” generally and easily cedes to the Republican agenda when the rubber meets the road. I imagine at least three justices (Thomas, Alito, and Kavanaugh) will have no problem just making up a new Constitutional requirement if it helps Republicans. Rao’s dissent was primarily written to Neil Gorsuch — though she’s bad at this, so I don’t know if it will actually work. And then there’s Roberts who will be in a tough spot because he’ll have to preside over the impeachment trial at the Senate — a trial that he must know is coming regardless of whether Mazars turns over information or not — because he can read about the president admitting to high crimes and misdemeanors on camera just as easily as anybody else.
Having just explained how Rao, and the conservatives who are inclined to agree with her, are wrong on every level, if I were a House Democrat, I might well be inclined to give baby its bottle. Rao cannot dictate to Congress how they conduct an impeachment investigation, but if some pro-forma vote on an “inquiry” is the legally wrong hill they want to die on, I might just say: Fine, here’s your formal vote you intellectually dishonest assholes. Every day the Democrats spend fighting over parliamentary procedure instead of the crimes committed by the president in plain sight feels like a wasted day to me.
But, like, when my kid was four he kept pulling the dog’s tail, and I told him to stop but he didn’t listen so instead of breaking it up, I just let him keep doing it until the dog nipped him. And when he cried I just said, “I think you’ve learned an important lesson,” and walked away. Which is to say: Maybe I’m not the guy to talk to about “strategy.”
Rao’s argument is legal bollocks. There’s a decent chance at least one of the five Republican Supreme Court justices isn’t able to swallow it.
Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.