Congress Needs a “Rocket Docket” for Its Disputes With the President

On March 31, the Supreme Court is set to hear a trio of cases involving access to President Donald Trump’s financial records. Two of the cases concern Congress’ basic authority to obtain information through lawful subpoenas, meaning the court’s decisions could meaningfully impact the balance of power between the executive and legislative branches for decades to come. 

Despite the extraordinary nature of these lawsuits, they have grinded slowly through the ordinary litigation process. Faced with layers of appeals, motions to stay, and, now, Supreme Court review, a final decision is not expected until late June. The delays have prompted lawmakers to lament that “Congress will now have to wait several more months to get a final ruling.”

But lawmakers can address these delays by creating a judicial “rocket docket” for disputes between Congress and the president. As the nonpartisan Congressional Research Service recently wrote, it is “well within Congress’s power” to enact a law providing for expedited judicial review of particular categories of cases, including those seeking enforcement of congressional subpoenas. 

The rocket docket would work like this: Congress would shorten the appeals process by providing for an initial decision by a three-judge panel, which can only be appealed to the Supreme Court. It would also expedite all court proceedings and allow courts to impose monetary fines against agency heads who refuse to comply with lawful congressional requests. Both Republicans and Democrats have introduced legislation relying on this framework to expedite lawsuits over congressional subpoenas, and we have seen its success in redistricting and civil rights litigation as well.

A rocket docket could have prevented many of the abuses seen during the Trump administration, would reduce the likelihood of future abuses, and will enhance Congress’ ability to conduct oversight of potential government corruption. Consider the case of former White House Counsel Don McGahn. After the report from Special Counsel Robert Mueller identified McGahn as a key figure in the Russia investigation, the House Judiciary Committee subpoenaed his testimony in April 2019. The White House instructed McGahn not to comply with that subpoena, making the remarkable claim that McGahn is “absolutely immune from compelled congressional testimony” concerning his work for the president. The House Judiciary Committee sued in August, and it took three months before the district court issued its ruling against McGahn, rejecting his absolute immunity claim as “baseless.” But that ruling was quickly put on hold by the D.C. Circuit Court of Appeals until it could make a final decision in McGahn’s appeal. It made that decision just last Friday, over 10 months after Congress issued the subpoena. And that ruling will likely be appealed to the full court of appeals and Supreme Court, dragging the suit out much longer. Under a rocket docket system, the court of appeals would have been skipped altogether, resolving the case in potentially a matter of months. 

Or consider the congressional lawsuit over Trump’s tax returns. Despite a federal law requiring the Treasury Department to supply the House Ways and Means Committee with “any” requested tax return information, the Treasury has repeatedly refused to do so. More than seven months have passed since the Committee first sued in July 2019, and it has yet to receive an initial ruling from the district court. Instead, the court decided to postpone any ruling until the D.C. Circuit resolved the McGahn case—a dubious ruling itself given that the two cases raise wholly distinct issues. A rocket docket would have prevented the judge from indefinitely putting the case on hold. 

Now is the time for Congress to pass legislation on this pressing issue, and reaffirm its status as a co-equal branch of government. This fight is not just about Trump, but all future presidents who would exploit the judicial process to avoid compliance with the law. Our constitutional order, and much more, hang in the balance.

Image: White House Counsel Don McGahn attends a cabinet meeting with President Donald Trump at the White House October 17, 2018 in Washington, DC. Photo by Chip Somodevilla/Getty Images

 

About the Author(s)

Nikhel Sus

Senior Counsel at Citizens for Responsibility and Ethics in Washington (CREW)