Principled liberals and conservatives, whether they support or oppose the impeachment of President Trump, should want to make the momentous decision based on the best available evidence and the testimony of the most vital witnesses of fact.
Whether or not this occurs in what may be the most important judicial decision facing American democracy in the history of the republic will depend on decisions made by the Supreme Court, and whether the court acts expeditiously, with one major case involving release of the president’s tax returns now live before the court and others poised to follow in coming days and weeks.
Chief Justice Roberts and all eight associate justices have a rendezvous with constitutional destiny that will be remembered for centuries for its powerful and lasting impact on the fate of democracy and the rule of law.
It is no exaggeration to suggest that with democracy under attack in America and Europe from an aggressive Russian dictator among others, it would be an epic constitutional disaster for democracy if the Supreme Court rejects highly relevant and arguably decisive precedents of the court in historic cases, and effectively rules that a monarchical president is above the law.
Such a ruling would destroy the constitutional principles of checks and balances, separation of powers and legislative oversight over the executive branch—which the court has historically defended with vigilance. This would eviscerate the core American notion that no person should be above the law.
This would unleash a president who would escalate his attempts to make the presidency supremely dominant over the legislative and judicial branches, and Attorney General William Barr, whose aspiration for unlimited executive power is so extreme that he would have been the ideal attorney general for King Henry VIII in the 1500s, who decapitated Sir Thomas More over a matter of unlimited royal power.
It would unleash a president who regularly accuses leading political opponents of treason, a capital offense. He said “lock her up” about his Democratic opponent in 2016. He pleaded with foreign dictators to help fix presidential elections in his favor in 2016 and 2020. He is under investigation today for pressuring a democratic ally under attack by Russia by withholding military assistance until the plot was exposed, to spread dirt against a leading opponent in 2020.
It would inflict a devastating and permanent blow to the core vision of our Founding Fathers who warned the nation repeatedly, and drafted our Constitution carefully, to protect our democracy from being corrupted or destroyed by malignant dominance of foreign powers or domestic dominance of home grown despots.
In U.S. v. Nixon, a unanimous Supreme Court, including liberal and conservative justices appointed by Democratic and Republican presidents, ruled that President Nixon must release critical evidence and cannot claim any form of privilege. In Clinton v. Jones a unanimous Supreme Court including Chief Justice William Rehnquist and Justices Clarence Thomas, Antonin Scalia, Anthony Kennedy and Sandra Day O’Connor ruled that President Clinton was not immune and must respond to civil litigation while serving as president.
My hope, based on decisions in the Nixon and Clinton cases, is that the chief justice steers the Roberts court, in a nation as bitterly divided as America remains today, to decide the current cases expeditiously — even if it requires denying to hear appeals of cases already decided by courts of appeals, and to act with the unanimity and resolve the court achieved in those earlier cases.
For two years, President Trump has aggressively and systematically acted to obstruct critical administration witnesses from testifying, and obstruct critical evidence from being available to deciders of law and fact.
If the Supreme Court faces an extremely difficult position in a bitterly divided nation during an election year, the sole responsibility for this lies with the president.
The best course would be for the court led by the chief justice to speak with a unanimous voice, as expeditiously as possible, to rescue our democracy from grave dangers the Constitution was carefully designed to prevent.
Budowsky was an aide to former Sen. Lloyd Bentsen (D-Texas) and former Rep. Bill Alexander (D-Ark.), who was chief deputy majority whip of the House of Representatives. He holds an LLM in international financial law from the London School of Economics.