In the Mazars case, Judge Rao adopted an argument--that the House lacks any power to investigate wrongdoing of *any* impeachable Executive officer unless it announces an "impeachment inquiry"--that would invalidate centuries of congressional practice & that was so extreme ... [1]
... & so unconvincing that neither Trump, nor the SG, nor any of the amici supporting Trump, have embraced it in the SCOTUS.
Undeterred, in yesterday's In re Grand Jury case Rao adopts an argument that DOJ itself didn't raise & that DOJ concedes ... [2]
Undeterred, in yesterday's In re Grand Jury case Rao adopts an argument that DOJ itself didn't raise & that DOJ concedes ... [2]
... “just doesn’t seem ... plausible." (And that from a DOJ that hasn't been shy about making extreme, implausible arguments (e.g., its 5000A & inseverability arguments in the ACA case & its arguments about HHS's power to require women to carry pregnancies to term in Garza).) [3]
Indeed, Judge Rao's argument is so implausible that even Judge Griffith, whose Article III standing opinion in McGahn a couple of weeks back--almost sure to be reversed en banc--forms the essential basis of Rao's argument, rejects it. [4]
Rao also includes in her opinion embarrassing assertions such as: "The role of the courts in our system of separated powers is to preserve *individual* rather than *institutional* rights." (Any first-year law student could cite chapter & verse of "institutions" ... [5]
... (e.g., legislatures, states, "the United States," associations, etc.) that have standing to sue in federal court to prevent harms to their interests.)
Iconoclasm isn't *necessarily* a bad thing, even in a judge. Even so, such an aggressively idiosyncratic way ... [6]
Iconoclasm isn't *necessarily* a bad thing, even in a judge. Even so, such an aggressively idiosyncratic way ... [6]
... of conducting business--adopting arguments no one's pressed, that are deeply inconsistent with long-established practice, & that persuade virtually no one--reflects, to say the least, an unusual conception of an Art.. III judge's role. [7]
Meanwhile, the opinions of Judges Rao and Griffith demonstrate anew why Judge Griffith's recent McGahn decision was wrong, even on its own terms, and therefore is likely to be reversed by the en banc D.C. Circuit. [8]
Judge Rao, for her part, tries to distinguish McGahn & In re Grand Jury from the current Trump v. Mazars case in the SCOTUS by arguing that the House subpoena in Mazars, albeit "intertwined with the 'official actions of the Chief Executive,'" ... [9]
"was directed to the President’s *private* accounting firm," and that "[w]hen determining standing, we focus on the identity of the parties rather than the issues they seek to adjudicate."
Well, in McGahn, just as in Mazars, the subpoena was directed at a private party-- [10]
Well, in McGahn, just as in Mazars, the subpoena was directed at a private party-- [10]
--which on Rao's view should establish Art. III standing.
Likewise, Judge Griffith writes that "Unlike McGahn, this case does not involve a suit between the political branches over executive-branch documents or testimony. . . . [11]
Likewise, Judge Griffith writes that "Unlike McGahn, this case does not involve a suit between the political branches over executive-branch documents or testimony. . . . [11]
The House isn’t seeking our help in eliciting executive-branch testimony or documents."
But the McGahn case, likewise, is not "a suit between the political branches," nor does it involve "executive branch documents or testimony." Don McGahn is a *private citizen.* [12]
But the McGahn case, likewise, is not "a suit between the political branches," nor does it involve "executive branch documents or testimony." Don McGahn is a *private citizen.* [12]
Accordingly, even if one were to credit the mistaken Griffith/Rao view that the House can't sue to compel the Executive branch to comply with a subpoena, McGahn isn't such a case. It is, instead, a case like those in which the judges concede there's standing-- ... [13]
... viz., where the House sues to compel a *private* party to comply w/a subpoena. [14]
