Could the Coronavirus Pandemic Slow Down Trump Legal Fights?
The pandemic has shuttered courthouses across the nation, guaranteeing that major Trump administration legal battles will drag on for longer than expected.
March 20, 2020 at 03:05 PM
6 minute read
The coronavirus pandemic has shuttered courthouses across the nation, all but guaranteeing that major Trump administration legal battles could drag on for longer than expected.
The U.S. Supreme Court took the rare step of cancelling its March arguments, including the two cases over third-party subpoenas from Congress and the Manhattan district attorney for President Donald Trump's financial records. There's no word on when those arguments will be held, but in the meantime it gives Trump's attorney William Consovoy and House lawyer Doug Letter more time to prep.
At least one lawsuit challenging the Trump administration's public charge rule, which makes it harder for undocumented immigrants receiving public assistance to obtain legal status, has been delayed for a couple months. The U.S. Court of Appeals for the Fourth Circuit postponed oral arguments in the case until May amid the pandemic, after arguments were originally set to be held this week.
The U.S. Court of Appeals for the D.C. Circuit also stopped holding upcoming oral arguments, which could impact the en banc rehearing it just granted in the cases over Don McGahn's testimony and the challenge to Trump's diversion of military funds for border wall construction. Those arguments are set to be held April 28.
The circuit began to hold arguments over the phone, starting Friday. Circuit executive Betty Paret said in an email Friday that she wasn't sure how those en banc arguments will be held.
"The technology works well with 3 judges, but it might be tricky with nine or 11 judges," she wrote. "Once a decision is made, we will post an announcement on the court's website."
If the en banc rehearing is ultimately delayed, that could also trickle into the House's pending lawsuits at the district court level: U.S. District Judge Trevor McFadden of the District of Columbia ordered Friday that lawmakers's lawsuit seeking Trump's federal tax returns would be stayed as the circuit deals with the McGahn case. The panel ruling, which found the House didn't have standing to bring forward the suit, was vacated by the en banc circuit.
"The subpoena-enforcement issue is unsettled for now. And piecemeal litigation would be an inefficient use of resources. These reasons alone favor a stay," McFadden wrote. "Thus, the court will await further proceedings in McGahn before it acts on either the subpoena-enforcement claim or the § 6103(f) claims."
He added that the en banc ruling in the case "may not be the final word either."
The effects of coronavirus are even trickling into the more technical parts of having an appeal at the D.C. Circuit: On Wednesday, the House filed a motion to extend the deadline for lawyers to file paper copies of their previously filed materials, as well as the paper copies of their supplemental briefs for the case. The DOJ joined in the motion for the briefs. The request wouldn't impact the deadlines to file their briefs with the court electronically.
"In light of the COVID-19 pandemic, and to minimize personal contact, reduce the possibility of exposure, and slow community spread, the House parties seek an extension of time to prepare and file additional copies of their previous filings, and all parties seek an extension of time to file paper copies of the supplemental briefs," Wednesday's motion reads.
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The House is also asking the D.C. Circuit for an extension over its appeal of a ruling requiring lawmakers to notify Trump if they request his state tax returns under a New York law.
On Wednesday, the lawyers asked the appeals court for an extra 30 days to file its opening brief, citing its other deadlines in the en banc cases and preparation for the Supreme Court arguments.
"The Supreme Court has postponed that oral argument because of the COVID-19 pandemic, but it is uncertain how quickly the argument will be rescheduled," Wednesday's motion reads. "The extension is also necessary given the disruptions caused by the COVID-19 pandemic and the Committee Defendants' significant and unanticipated work on pandemic-related issues."
House lawyers, led by Letter, have repeatedly argued in court that its cases must be resolved quickly, so members of Congress can obtain the information and take action before the current session ends.
But the pandemic and resulting public health restrictions has left the congressional lawyers, like so many other attorneys, in a holding pattern.
Other Trump-related lawsuits have also been left in the lurch over COVID-19: Reporter Brian Karem and his attorney, Gibson, Dunn & Crutcher's Theodore Boutrous, will argue before the D.C. Circuit on Monday over the White House's temporary suspension of Karem's White House hard pass.
Boutrous had asked the court to reschedule the arguments, as he's based in Los Angeles and Gibson Dunn was in the process of transitioning "to a remote-working, restricted travel policy" at the time over the COVID-19 pandemic.
He said both parties "have a strong preference" to argue the case in-person. "That said, the parties also have a strong preference that oral argument be held prior to this Court's summer recess and can be available telephonically or by video, if necessary, in order to ensure that oral argument does not occur after the Court's summer recess," Boutrous wrote.
In a per curiam order issued Thursday, the panel said the case "remains scheduled" for Monday.
The D.C. Circuit said in its order freezing all scheduled arguments that it would notify parties if the case will now be decided on the briefs, held telephonically or postponed. And with arguments scheduled through mid-May, and the circuit's regular summer break coming up, getting everything decided on time could be a tight squeeze.
Boutrous said he will call into the arguments from his home office in Los Angeles, 6:30 a.m. local time.
He said there is a concern that the global health crisis could slow down the already relatively slow court proceedings, but that everyone understands that the courts are trying to just do their best, like every other institution is."
"It really is a feature of everybody working together, to try to do the best we can to keep everything going in a way that keeps everyone safe and healthy as possible," Boutrous said. "I think the courts are really trying to grapple with that, and at the same time to try to make sure that they're achieving justice within their court systems."
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