Congress should create a special court to rule on disputes between branches

Insurrectionists loyal to President Donald Trump riot outside the Capitol, Jan. 6, 2021. (AP Photo/John Minchillo, File)

By Tom Coleman
Opinion, St. Louis Post-Dispatch

One of American democracy’s bedrock principles is that no one, not even the president of the United States, is above the law. The principle was confirmed last year by a District of Columbia appeals court when it concluded that Congress has the authority to seek civil enforcement of its subpoenas of executive branch officials if it passes a law that sets forth a cause of action upon which it could bring suit. Even more important is when Congress seeks criminal enforcement by the Justice Department of individuals who fail to comply with a congressional subpoena.

From a practical standpoint, the time-consuming process of judicial decision-making has often rendered subpoena enforcement matters moot — allowing a president, his aides, and even political operatives to run out the clock beyond the next election. This process jeopardizes another legal principle: Justice delayed is justice denied.

The House select committee investigating the Jan. 6 insurrection has issued subpoenas to a number of people close to former President Donald Trump who likely had firsthand information on the president’s intentions and activities surrounding the violent storming of the Capitol.

The most notable recipient so far is Steve Bannon, a former Trump adviser who has been indicted by a federal grand jury for contempt of Congress in his failure to respond to the committee’s subpoena. His trial date has been set for July 18.

Mark Meadows, Trump’s former White House chief of staff and Jeffrey Clark, a former top Trump Justice Department official, have indicated they also will not comply with the committee’s subpoena. The committee last week was weighing whether to seek referrals to the Department of Justice for possible criminal prosecution of Meadows and Clark.

Bannon, Meadows and Clark are just three of the many former officials subpoenaed by the committee who will likely try to run out the clock. This foot-dragging has long been used by Trump as president, and he now hopes his former advisers will utilize this abuse of the court system to shield him from public exposure for his possible role in the Jan. 6 insurrection.

Because a Congress lasts only two years, it’s likely many of those subpoenaed by the House select committee will attempt to drag out the case so that the authority of the Congress seeking the enforcement will have expired before it can obtain judicial enforcement of its subpoena. The constitutional power of congressional oversight in this case would be rendered meaningless.

If the Justice Department fails to advance enforcement of any of these subpoenas, or if the courts fail to expedite their trials, one way for the constitutional checks and balance between Congress and the executive branch to be effective would be for the Congress to pass legislation creating a new court designed to enforce Congress’ constitutional authority in a timely manner

The current flagrant abuse of the constitutionally prescribed process demonstrates that the process is not working. It is wrong to require Congress to repeatedly undertake a patently flawed judicial process to assure our constitutional checks and balances are not rendered obsolete. The current system produces a no-win situation for the rule of law.

That’s why Congress should create the new federal court — one with exclusive jurisdiction over, and focused solely on, disputes between the branches of the federal government.

The legislation should state that a separate house of Congress, or Congress as a whole, has the constitutional authority and standing to bring a cause of action in the new court and that the court would be required to expedite the proceedings. The legislation should spell out specific rights and remedies associated with the court’s authority.

As recent litigation involving Trump has shown, the special court is especially needed to handle future instances when Congress pursues an impeachment.

The legislation would include special rules of procedure. The court’s rulings could be appealed directly to the Supreme Court. The legislation should also spell out that the general rule that so-called “political questions” are beyond the purview of the federal courts is not operable in its jurisdiction.

Failure to adopt meaningful reforms in the current process will only invite more non-compliance by a president as well as employees in the executive branch, when faced with lawful inquiries by Congress. To condone the executive branch’s wrongdoing is to encourage more of it in the future and to give up on the rule of law and our democracy.

Tom Coleman is a former Republican member of Congress from Missouri and serves as an adviser to Protect Democracy.
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12.13.21
Source: Coleman: Congress should create a special court to rule on disputes between branches, St. Louis Post-Dispatch

Photo Caption/Credit: Insurrectionists loyal to President Donald Trump riot outside the Capitol, Jan. 6, 2021. (AP Photo/John Minchillo, File)