Patterico's Pontifications

2/29/2020

Biden Destroys Sanders in South Carolina Primary

Filed under: General — Patterico @ 10:04 pm



Relative sanity has a chance tonight:

Former Vice President Joe Biden decisively won the South Carolina Democratic primary on Saturday, claiming his first victory of the 2020 race and giving a crucial boost to his struggling campaign ahead of Super Tuesday.

The victory tracked with polls indicating that Biden, buoyed by support among black voters, had a significant lead in the state for months over Sen. Bernie Sanders and others, despite the surging Vermont senator beginning to close the gap after early primary wins that rocketed him to front-runner status. Fox News projects Sanders will finish second, followed by wealthy progressive activist Tom Steyer — who ended his campaign within hours of polls closing.

Tonight’s delegate count:

The Bernie juggernaut still looks to be scary on Super Tuesday, especially in my home state of Leftistfornia. I’ll be voting in the Democrat primary for Joe Biden.

And I don’t really like Joe Biden.

UPDATE: New York Times:

Mr. Biden, the former vice president, captured just under 50 percent of the vote, well ahead of Mr. Sanders, who had 20 percent. Tom Steyer, the California billionaire, was a distant third, followed by Pete Buttigieg and Senator Elizabeth Warren of Massachusetts. The victory enabled Mr. Biden to significantly narrow Mr. Sanders’s pledged delegate lead, but he did not appear poised to overtake him.

Biden is not to be discounted.

Court of Appeal Vindicates the House’s “Obstruction of Congress” Article of Impeachment, as Trumpists Run False Victory Laps

Filed under: General — Patterico @ 11:35 am



The federal Court of Appeals for the District of Columbia issued a ruling yesterday that unequivocally vindicates the theory behind the House of Representatives’s “obstruction of Congress” article of impeachment of President Trump.

You wouldn’t know that from reading most media reports or from cruising Trumpist Twitter. The president’s defenders are actually running victory laps, claiming vindication from a decision that actually proves that the House was constitutionally authorized to impeach Trump for obstructing Congress. In this, they are aided by a news media that is not telling its readers the truth about what the decision says.

Put simply, the dispute in Congress between Trumpists and supporters of the obstruction article came down to this: when a president defies a congressional subpoena, should Congress have to run off to the courts to resolve the president’s objections to the subpoena? Or can Congress enforce such a subpoena on its own, using its powers up to and including impeachment? In the House, Democrats unequivocally argued: no, we don’t have to go to court. After all, the president has said that there will be zero give and take, and that he is not cooperating with a single subpoena of ours, but instead will fight “all the subpoenas.”

So we don’t have to go spend months in court. We have our own powers for dealing with this sort of blanket obstruction, and one of them is impeachment. And we are going to exercise that power.

That is what the Democrats said. And yesterday’s court decision vindicates that position. Wholly, utterly, and completely.

Virtually every headline you read in the Fake News Media™ about the holding of yesterday’s decision in the McGahn congressional subpoena case is wrong. Wrong, moreover, in a way that favors Donald Trump and his defenders. Here are some sample headlines:

Washington Post: Former White House counsel Don McGahn does not have to testify to House, appeals court finds. Wrong.

CNBC: Former Trump White House lawyer Donald McGahn does not have to testify to House, appeals court rules. Not even close.

CNN: Appeals court says Don McGahn doesn’t have to testify in major win for White House. Nope!

I could go on and on and on. Trust me.

The court did not address whether McGahn has to testify. The whole point of the ruling is that the court refused to address that issue. The court addressed whether the Committee on the Judiciary of the House of Representatives was constitutionally entitled to invoke the jurisdiction of the federal courts to enforce its subpoena. The court held that “Article III of the Constitution forbids federal courts from resolving this kind of interbranch information dispute.”

If the appeals court had held that McGahn does not have to testify, as all these media reports claim, the court would have been resolving the interbranch dispute, in McGahn’s (and the executive branch’s) favor. Which is precisely what they say in the opinion they will not do.

So does the court say Congress is out of luck, and has no authority on its own to enforce the subpoenas? Not only does the court not say that, it says the complete opposite. In fact, the decision lists several options that Congress has, and guess what is among the options listed by the appeals court as a power Congress has to enforce its subpoena? Why, impeachment for obstruction of Congress! The court even specifically cites the “obstruction of Congress” article of impeachment against Trump as an example of the kind of power that Congress has to deal with the executive resisting a subpoena. You think I’m making that up? Here is a screenshot from the opinion:

Screen Shot 2020-02-28 at 10.24.06 PM

Focus on the last five lines. The court is explicitly saying: Congress is not powerless in the face of resistance to its subpoena, because Congress has political tools to address that resistance — like, for example, when they impeached Trump for obstruction of Congress.

Another passage:

Screen Shot 2020-02-28 at 10.32.45 PM

Now that you have a clear understanding of what the appeals court did and did not say, behold the reaction of the Trumpist commentariat. I would like every honest person reading this to compare the decision actually issued by the court, and in particular the passages screenshotted above, with these tweets:

The sleight of hand here is breathtaking. In Congress, Trump argued “you should not be impeaching me for obstruction. Instead, you should have gone to court.” In court, DoJ argued “this is no place to resolve interbranch disputes such as the executive’s ability to resist congressional subpoenas. Enforcing those subpoenas is Congress’s job.” These are opposite positions, which is a point that Adam Schiff made in his closing arguments: the president is saying we should have gone to court, but his lawyers are arguing in court that the court is not the place to resolve these disputes. The court vindicated the latter position and Turley implies that ruling vindicates the former, opposite position.

Or, to put it Twitter-style:

The exact same sleight of hand is used here:

Turley spells out his thoughts more thoroughly in a column at The Hill, but the same confusion pervades the piece (I said all along Trump had privilege arguments; Trump won in court; now I am selling the false implication that because he won in court, he was correct on those privilege arguments).

The one thing Turley says that I agree with is that he believes the court is wrong to say these are not justiciable matters. For example, in Zivotofsky v. Clinton (h/t to University of Texas law professor Steve Vladeck), the Supreme Court confronted a case where the issue was as follows:

Congress enacted a statute providing that Americans born in Jerusalem may elect to have “Israel” listed as the place of birth on their passports. The State Department declined to follow that law, citing its longstanding policy of not taking a position on the political status of Jerusalem.

Like the appeals court in the McGahn case, the D.C. Circuit Court of Appeals agreed with the government in Zivotofsky that the case was not the type of matter in which Article III courts should involve themselves. Without providing a resolution to the underlying dispute, instead sending it back to the lower courts for a substantive decision, the Supreme Court in an opinion by Chief Justice Roberts rejected the idea that this was not a matter for the courts, writing:

Resolution of Zivotofksy’s claim demands careful examination of the textual, structural, and historical evidence put forward by the parties regarding the nature of the statute and of the passport and recognition powers. This is what courts do. The political question doctrine poses no bar to judicial review of this case.

The McGahn case does not present the exact same scenario, but I think the same principle applies. I am not persuaded by the distinction drawn by the appeals court in the McGahn case between their decision and the U.S. v. Nixon case — that enforcing subpoenas in criminal cases is a matter for the courts, but enforcing congressional subpoenas is not. Here, the courts confront a clash between branches: the executive and the legislative. The High Court in Nixon confronted a clash between branches: the executive and the judicial:

However, neither the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.

. . . .

The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III. In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence.

. . . .

Since we conclude that the legitimate needs of the judicial process may outweigh Presidential privilege, it is necessary to resolve those competing interests in a manner that preserves the essential functions of each branch.

Here it is the legitimate needs of the impeachment process rather than of the judicial process, but there is no reason that the judiciary cannot resolve such a dispute here when it did in Nixon. As in Nixon, “neither the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from [congressional] process under all circumstances.” All I did there was substitute the word “congressional” for “judicial.” Zivotofsky proves that the political question doctrine doesn’t kick in simply because the branches in question are Congress and the presidency (as opposed to Article III courts and the presidency, as in Nixon) — even if the executive has a dispute with Congress over whether a congressional action impinges on the executive’s constitutional powers.

After all: this is what courts do.

So, like Turley, I believe the McGahn is justiciable. But unlike Turley, I don’t think Congress is required to go to the courts for enforcement, just that they are entitled to.

I think the Committee should appeal this to the Supreme Court. Some people are saying they should go en banc, and maybe that is a better or wiser course of action, but I really want a final resolution of this issue from the nation’s highest court. It’s an important issue.


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