Patterico's Pontifications

2/29/2020

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 Zivotofsky’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.

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

  1. Whew. I don’t write posts like this that much any more.

    Patterico (115b1f)

  2. Great post, Patterico! You are doing us all a great service.

    felipe (023cc9)

  3. Good catch, brother!

    Ragspierre (d9bec9)

  4. I agree. Great post, Patterico. Thank you!

    nk (1d9030)

  5. https://legalinsurrection.com/2020/02/appeals-court-rules-house-cant-sue-to-enforce-mcgahn-subpoena/

    This was the headline used: Trump Vindicated Again: Appeals Court Rules House Can’t Enforce Subpoena To Don McGahn

    This is from someone I used to respect…

    Ragspierre (d9bec9)

  6. This should be appealed, as the issue is not only justiciable, but in the past (US v Nixon) it HAS been addressed. The Courts should have the ability to — at the very least — determine the facts of the matter: Is it a valid claim of executive immunity (is it advice, or evidence of a crime that is being withheld)? Is it a bona fide impeachment investigation (and is that decisive)? Does Congress have other ways to get the same information without breaching confidence?

    Since I have felt that Congress’ article 2 short-circuited the legal process I dislike this decision immensely. Were it to be upheld, it would leave Congress with little recourse BUT impeachment (or the next election) to resolve obstruction claims of executive privilege. That is bad all around.

    Congress has a necessary oversight role that is (functionally) apolitical. Treating all such disputes as non-justiciable political matters makes this oversight nearly impossible.

    Are the required to go to the courts? In a matter that has no bright-line answer from precedent, yes they are. In a matter where the WH is simply ignoring established law, no, but the courts response should not take too long if they did.

    Kevin M (ab1c11)

  7. Great post! Thank you for the thoughtful, instructive and insightful analysis.

    cmd (88e9b1)

  8. An advantage of going to the courts and getting a final order is that if the WH still refuses to produce the witness/papers/tapes/etc then it makes the impeachment article stand on its won. Even Nixon knew he had to produce the tapes.

    Kevin M (ab1c11)

  9. Thank you for posting the link to the decision. I note that despite the active judges being 7-4 Democrat, this panel was 2-1 GOP (GHWB, W, Clinton) with the split being just that.

    I note that they do differentiate the case from Nixon

    Third, we do not question the federal courts’ authority to
    adjudicate disputes historically recognized to be within our
    jurisdiction. For example, in criminal prosecutions, we can
    adjudicate executive-privilege claims arising out of criminal
    subpoenas, as in Nixon, 418 U.S. at 683. Likewise, we may
    adjudicate cases concerning congressional subpoenas if they
    implicate the rights of private parties, as in Mazars, 940 F.3d
    at 723 (noting that the Committee’s subpoena was issued to a
    “non-governmental custodian[] of the President’s financial
    information” (emphasis added)). Such cases ask us to “decide
    on the rights of individuals,” Marbury, 5 U.S. at 170, and we
    “cannot avoid” resolving difficult constitutional questions
    “merely because the issues have political implications,”
    Zivotofsky, 566 U.S. at 196.

    The problem comes up for me with Congress’ asserted coloration that this was an impeachment inquiry. While I feel an impeachment TRIAL would breach a number of confidences, an “inquiry” has no real procedural barrier and might be no more than a “magic words” test. Clearly this would have to be judged by a Court as neither Congress nor the Executive can be relied upon to weigh this meaningfully.

    Kevin M (ab1c11)

  10. Congratulations, Pat. This is you at your best.

    My main concern is not the ignorance of Turley and others. It’s the absolute privilege that this decision would create which is quite troubling. While it has been abused beyond measure, Congressional Oversight is a necessary function.

    I’d be fine with a narrow tailoring requiring Congress to show some super significant and obvious need to compel testimony or documentation when the privilege is asserted. I’m talking extremely rare occurrences. When classified matter is in dispute, the privilege must be near-absolute.

    How would you tailor/balance EP v. Congress?

    Ed from SFV (950df5)

  11. Are the required to go to the courts? In a matter that has no bright-line answer from precedent, yes they are. In a matter where the WH is simply ignoring established law, no, but the courts response should not take too long if they did.

    But you do understand that, according to this decision, they are absolutely not required to go to the courts and in fact should not.

    Patterico (115b1f)

  12. Whoa!

    Patterico calls out Mitt Romney.

    Make America Ordered Again (afc191)

  13. Whoa!

    Patterico calls out Mitt Romney.

    Make America Ordered Again (afc191)

  14. But only once. Sorry about the double post!

    Make America Ordered Again (afc191)

  15. I don’t write posts like this that much any more.

    I’ll go out on a limb and say most readers wish you did, but I know they take time.

    Paul Montagu (ae8832)

  16. Whoa!

    Patterico calls out Mitt Romney.

    I did believe he was wrong (as were all Republicans) to vote against Article 2, yes.

    Patterico (115b1f)

  17. Patterico calls out Mitt Romney.

    Take a breath and explain that nonsense.

    Ragspierre (d9bec9)

  18. Patterico already did.

    Make America Ordered Again (afc191)

  19. So you meant “Patterico calls out all Republicans”.

    Gotcha…

    Ragspierre (d9bec9)

  20. Good.

    Make America Ordered Again (afc191)

  21. But you do understand that, according to this decision, they are absolutely not required to go to the courts and in fact should not.

    Indeed, and I dislike it for that reason. You are right, Turley is wrong (and it is hard to understand how he got it this wrong. Did he rely on news reports, or some intern?).

    The court seems to have viewed this as purely a separation-of-powers dispute, unrelated to criminality (Nixon) or individuals (the passport case). I don’t think that is right (as far as justiciability is concerned) because there are matters of fact that only a court can decide.

    Kevin M (ab1c11)

  22. Great post. You made me think and I learned from it. Well done.

    DRJ (15874d)

  23. I did believe he was wrong (as were all Republicans) to vote against Article 2, yes.

    I don’t, but then again I also think this decision is wrong. Assuming that this is not appealed (and Congress really should), or affirmed, then sure hindsight is wonderful.

    Doesn’t your belief that this WAS a justiciable matter weaken your argument for Article 2? Or do you think that Congress’ case for breaching the asserted privilege was a good one? If so, why? (And if not, isn’t finding obstruction without a legal basis for the charge a little difficult?)

    Kevin M (ab1c11)

  24. Here it is the legitimate needs of the impeachment process rather than of the judicial process

    What bar is there to Congress beginning an “impeachment inquiry” whenever it really really wants something from the executive? Why could the House not have done this several times to Obama, with this or that committee saying (more in sorrow than anger) that they had to weigh impeachment regarding the IRS/Tea Party, Fast & Furious or any other scandal of the day?

    A TRIAL is one thing, but an “inquiry” is a lot less definable.

    Kevin M (ab1c11)

  25. It does make me wonder why didn’t the House just make this argument and prevail in a court rather than go right to impeachment.

    Make America Ordered Again (afc191)

  26. As a Senator (good luck with that, Kevin!) I would have voted NO on Article 2 for all the reasons that this decision ignores. I do not know how I would have voted on Article 1.

    Kevin M (ab1c11)

  27. 8.An advantage of going to the courts and getting a final order is that if the WH still refuses to produce the witness/papers/tapes/etc then it makes the impeachment article stand on its won. Even Nixon knew he had to produce the tapes.

    Speaking strictly as a non-lawyer civilian, seems the Dems would have added more leverage going to courts as well. More intriguing is what if Nixon had decided to defy and just burned the tapes– as ‘catch-me-if-you-can-Trump surely would have.

    DCSCA (797bc0)

  28. Speaking strictly as a non-lawyer civilian, seems the Dems would have added more leverage going to courts as well.

    Yeah, pretty much.

    Make America Ordered Again (afc191)

  29. Doesn’t your belief that this WAS a justiciable matter weaken your argument for Article 2?

    Not unless I think the courts are the only avenue of recourse. And I agree with the decision yesterday to the extent that it holds that they are not.

    Or do you think that Congress’ case for breaching the asserted privilege was a good one?

    Yes.

    If so, why?

    To properly answer that would require more time than I currently have. But I believe that there is no privilege not to appear and no privilege to stonewall “all subpoenas” and that a more limited executive privilege (which I do not believe Trump actually asserted!) would give way under these circumstances to Congress’s right to learn what happened in an alleged breach of duty to one’s office.

    Patterico (115b1f)

  30. It does make me wonder why didn’t the House just make this argument and prevail in a court rather than go right to impeachment.

    ?

    Make what argument?

    And what is the “it” in “[i]t does make me wonder”?

    Patterico (115b1f)

  31. This is a great thinking post from P.

    Remember, though, Nixon resigned– not because of any ‘legal battles’– he’d have toughed it out- but because he was told he’d lost the political support of Republicans if it went to a Senate trial and would be convicted.

    Impeachment is a political endeavor, not a pursuit of justice. In the end, it really doesn’t [or didn’t] matter what courts would rule in a Trump impeachment; w/a majority party support, he beats the raps in a Senate trial. And did. In the end ‘the rule of law,’ in a sad way, – to a non-lawyer, civilian, is sort of meaningless in all this. If you wanna nail him, flip the Senate w/t necessary political majority and impeach him again. Or just try to vote him out of office– which is seemingly less and less likely.

    ‘Catch him if you can.’

    DCSCA (797bc0)

  32. I’m dubious that this ruling totally vindicates the House’s Obstruction of Congress impeachment.

    While I’m convinced by Pat’s argument on technical legal manner, the House going straight to impeachment, as a political manner, creates all the wrong sort of precendents going forward.

    Politically, there were OTHER tools in Congress’ toolbox to elicit more oversight cooperation than going straight to impeachment politics.

    whembly (c30c83)

  33. When I first started reading you posts at RedState (in the long-long-ago), it was posts like this that stood out to me and made me feel like you were the contributor I enjoyed reading most. Glad I followed you here and discarded them when they went down the toilet.

    nate_w (5efffe)

  34. Politically, there were OTHER tools in Congress’ toolbox to elicit more oversight cooperation than going straight to impeachment politics.

    I’m dying of suspense waiting to find out what these other tools were.

    P.S. Great post, Patrick.

    Dave (1bb933)

  35. @33 The power of the purse bruh. Congress can starve out the Executive Branch if it so wants.

    The Senate has their own influence via Advise & Consent powers.

    whembly (c30c83)

  36. @33 The power of the purse bruh. Congress can starve out the Executive Branch if it so wants.

    Completely inadequate.

    It’s like saying if you rob a bank, we’ll get the IRS to audit you, or if you murder someone we’ll cut off your cable TV.

    Dave (1bb933)

  37. Patterico (115b1f) — 2/29/2020 @ 1:45 pm

    Yeah, OK. I disagree of course, mainly that it opens up all kinds of fishing expeditions when “executive privilege” can be overcome by a committee opening an impeachment inquiry on a party-line vote.

    Kevin M (ab1c11)

  38. Yes, Whembly, Congress has other tools, but they already pulled out the “big guns.” After the nuke detonated, the target was still intact. Until Congress gets the votes needed in the Senate, all other tools are just so much sparrow-shot. Until The Democrats can persuade the Republicans to join in the effort, they should save their breath to cool their porridge.

    felipe (023cc9)

  39. Completely inadequate.

    It’s like saying if you rob a bank, we’ll get the IRS to audit you, or if you murder someone we’ll cut off your cable TV.

    Why? Congress can refrain from spending *some* money on targeted things, and can tie up funds entirely. A defense bill that has a “no money for the wall” rider, for example. They did it to Reagan all the time (e.g. the Boland Amendment).

    Kevin M (ab1c11)

  40. I’m dying of suspense waiting to find out what these other tools were.

    Why don’t you go read the judicial opinion quoted. It lays out about six of them.

    rcocean (1a839e)

  41. I liked that someone up thread noted that the 3 judge panel was 2-1 Republican vs. Democrat. sorry, its impossible to take this legal mumbo-jumbo seriously when it ALWAYS divides along partisan lines. Or more accurately, the Left-wing judges vote for the Democrat/liberal position 95% of the time.

    Does anyone doubt that if this went to the SCOTUS, Ginsberg, kagan, and the “wise latina” would be automatic votes against Trump? As far as I can tell the 4 liberal horsemen have voted against Trump 95% of the time.

    rcocean (1a839e)

  42. Impeachment is a political process and Congress has sole power over it. As such, the courts don’t need to get involved. Nor do they need to get involved in getting information from the President. The opinion notes all the tools at the disposal of Congress, they simply need to use their power.

    Of course, Judges NEVER want to give away one inch of their power. So, even when they rule that the Courts have no standing, its always limited to the particular case at hand. And Courts in the future can rule the opposite, and as long the SCOTUS doesn’t care to differ, it will then be the law. We basically, have a standing Constitutional Convention of Judges who can change their minds at any time, and change the law. All they need is the votes.

    rcocean (1a839e)

  43. Patterico,

    I agree with Montague:

    I’ll go out on a limb and say most readers wish you did [write more posts this this]…

    and Ed from SFV:

    This is you at your best.

    Dana (4fb37f)

  44. Had Hillary been elected, and put two leftists on the SCOTUS, and a Republcian Congress had sued, their chance of winning would be zero. Its all politics, the legal reasoning is just a cover, a smoke screen for a “Living Constitution”.

    rcocean (1a839e)

  45. Its amazing that Romney went to Harvard Law, like several SCOTUS Judges, because his speech justifying his vote was very lame and unconvincing. Its obvious he wanted to vote against Trump, but understood that voting Yes on BOTH articles would make him look like a hack, so to maintain the “Profile in Courage” (LOL) he only voted with the D’s on the 1st Article.

    Yesterday, Mittens told a International nonprofit based in Denver that he’d let expediency rule his actions several times in the past (No really) BUT NOW Mittens is going to vote and say what he wants to say and do, the public be damned. This got him a standing ovation from the rich fats. I wonder how many other R’s would’ve impeached Trump if they’d be “untethered” to party loyalty?

    rcocean (1a839e)

  46. Congress can refrain from spending *some* money on targeted things, and can tie up funds entirely. A defense bill that has a “no money for the wall” rider, for example.

    Those things require the president to sign the legislation in question.

    They also do not, as whembly claimed, “elicit more oversight cooperation”.

    At best, they are tit-for-tat attempts at retaliation on completely unrelated political issues, and distractions from the real issue of the president abusing the power of his office to cover up his own corrupt acts.

    As a practical matter, without 2/3 supermajorities in both houses, legislation can do nothing to force a corrupt executive to comply with the law.

    Dave (1bb933)

  47. Nah, the courts were right and so were the Republicans. Impeachment was a farce and its clear that no person who actual analyzed the arguments would for for it. But Orange Man Bad because he talks funny, amirite?

    Patrick Henry, the 2nd (43976c)

  48. BUT NOW Mittens is going to vote and say what he wants to say and do, the public be damned.

    Do you EVER tire of lying? That’s a serious question.

    Ragspierre (d9bec9)

  49. And FYI, if you check the archives for 2016 here, you’ll see I was a hard core NeverTrumper. But that was because I thought Trump would be bad for the country, and would be mostly a liberal. I was wrong. He’s been good and mostly has done conservative things. Sure he talks funny and does weird things. I look past that, because who cares. He’s got two decent SC justices, and a ton of good judges.

    After 4 years of TDS, and seeing what the Dems would be like if they got power, I’m voting for him. It will be the first time I’ll be voting for a major party for president since 2000 & Bush. But Trump has done nothing wrong or illegal or impeachable, except not be “presidential”, and I don’t care about that because its irrelevant.

    Patrick Henry, the 2nd (43976c)

  50. Dave @45 – This is a feature, not a bug. Power plays such as the ones the House Dems have engaged in must succeed ONLY on the most obvious and necessary occasions. Nixon fell on such an occasion.

    Our system can not withstand if the Legislative and Judicial branches constantly war with the Executive. If the people saw fit to elect a fundamentally flawed human like DJT, and re-elect a piece of trash like WJC, so be it. The federal government simply can not function unless the Executive is given wide berth. (This why we need to reign it in).

    All this talk about “corruption” is specious. It is EVERYWHERE one looks. Again, it is endemic to our system. All efforts to write law in hopes of countering human nature are a waste. In the end, it’s about leaders choosing to do right things. A more perfect individual morality through legislation and judicial fiat? Farce.

    So…save the wars for moments where broad agreement is present. This built-in “filibuster” is necessary and a good.

    Ed from SFV (950df5)

  51. Orange Man Bad because he talks funny, amirite?

    No. He’s bad because he, like Hellary Clinton, has spent a life being a lying, cheating, pathological narcissist, and Collectivist thug.

    Ragspierre (d9bec9)

  52. All efforts to write law in hopes of countering human nature are a waste.

    Sorry, THAT is one of the stupidest damn arguments ever made (not calling you stupid).

    EVERY criminal law since time immemorial is directed at “countering human nature”.

    Ragspierre (d9bec9)

  53. Ragspierre @51 – You choose to go with your context. No worries.

    The point is that we can write all the laws with excruciating details you like as to how to “guide” behaviors – particularly in politics – but it all comes down to individuals making choices.

    Command economies fail for the very same reasons.

    Legalisms are refuge for the wicked. In our Republic, a unified Congress is supreme. That has to be enough. All the rest is imperfect policy and politics. For example…if Congress really wanted us to bring our sons and daughters home, they can do it any time they choose. They refuse to even take up the matter.

    Ed from SFV (950df5)

  54. For example…if Congress really wanted us to bring our sons and daughters home, they can do it any time they choose. They refuse to even take up the matter.

    Why would they do such a daft thing?

    Ragspierre (d9bec9)

  55. Remember, though, Nixon resigned– not because of any ‘legal battles’– he’d have toughed it out- but because he was told he’d lost the political support of Republicans if it went to a Senate trial and would be convicted.

    Republicans turned against him because they understood Nixon had no legal defense to the impeachment charges, i.e., he was guilty, and they cared about the law — something today’s Republicans don’t care about.

    DRJ (15874d)

  56. “In the past, they had a House jail,” California Democrat Ted Lieu, a member of the House Judiciary panel, said last week. “I don’t think we’re going to go that far, but courts have upheld that.”

    An interview with longtime Senate counsel Chuck Ludlam conducted by the Senate Historical Office’s oral history project shows that the confusion about the jail’s existence is longstanding.

    “I went to the Architect of the Capitol and found out where the old Capitol jail was located. There was at one time a jail here in the Capitol where the Congress could imprison citizens who refused to comply with its subpoenas,” Ludlam said.

    https://www.rollcall.com/2019/05/08/just-where-is-this-secret-house-jail-located/

    nk (1d9030)

  57. Those things require the president to sign the legislation in question.

    Of course they do, and the president can veto the entire defense bill over some relatively minor issue IF he is willing to fight that battle. But not only will he have the people who hate the wall fighting him, he will ALSO piss off all the people waiting for their other funding.

    Kevin M (ab1c11)

  58. As a practical matter, without 2/3 supermajorities in both houses, legislation can do nothing to force a corrupt executive to comply with the law.

    Possibly the worst Supreme Court decision since the end of the 70’s was INS v Chadha.

    When the Congress set up all the great agencies of the 1970’s and delegated law-making powers to them, it retained a “single-house veto” on the theory that a law that was opposed by either house would not pass, so an executive regulation should have to pass the same test.

    Then a man named Chadha was granted (for very good reason) a stay of deportation, and for some reason the House of Representatives vetoed the stay, as it had a right to do under the relevant law. Chadha sued to stay in the country (he was otherwise stateless) and won.

    The Supreme Court struck down the legislative veto in its entirety, but sustained all the executive powers that had been predicated on such a veto. 7-2 with Rehnquist and White aghast.

    Wikipedia has an excellent summary of the dissents:

    Justice White, dissenting, argued that (1) the legislative veto power is absolutely necessary to modern government, as exemplified by the legislative veto powers granted in the War Powers Act of 1973. (2) The absence of constitutional provisions for alternate methods of action does not imply their prohibition by the Constitution, and the Court has consistently read the Constitution to respond to contemporary needs with flexibility. (3) The legislative veto power does not involve the ability of Congress to enact new legislation without bicameral consensus or presentation to the president, but instead involves the ability of Congress to veto suggestions by the executive, a power that both houses of Congress already possess. (4) The Court has allowed Congress to delegate authority to executive agencies; lawmaking does not always require bicameralism or presentation. (5) The bicameralism and presentation provisions of the Constitution serve to ensure that no departure from the status quo takes place without consensus from both houses of Congress and the President or by a super-majority vote of both houses of Congress. In this case, the deportation of Chadha is the status quo situation, and the veto by House of Representatives of an alternative suggestion of the executive branch is reasonable given the purposes of bicameralism and the Presentment Clause.

    Justice Rehnquist, in a dissent joined by White, argued that it is unlikely that Congress would have promulgated § 244(a)(1) without the corresponding provisions of §§ 244(c)(1–2). Therefore, the provisions are not severable from one another, and holding one unconstitutional requires invalidating the other.

    Kevin M (ab1c11)

  59. Republicans turned against him because they understood Nixon had no legal defense to the impeachment charges, i.e., he was guilty, and they cared about the law — something today’s Republicans don’t care about.

    That’s debatable. The politics of the situation ruled, not the ‘rule of law.’ Revisit the numbers. His party supported him right up until the ‘smoking gun’ tape was made public, which was literally just a few days before he resigned and political support eroded quickly. If senators Goldwater, Scott had told him the party would hold in the Senate- he’d have toughed it out; Rhodes didn’t have any leverage given the situation in the House.

    DCSCA (797bc0)

  60. Republicans turned against him because they understood Nixon had no legal defense to the impeachment charges

    The fact that Nixon had spent the prior 5 years implementing the Great Society and generally co-opting the Democrats’ expansion of the bureaucratic State (the EPA, Clean _____ Act, wage and price controls) was part of it, too. The Democrats hated him for “triangulating” them, the GOP hated him for being a squish. Remember, 4 years before Nixon they nominated Goldwater. That faction never warmed to Nixon.

    Kevin M (ab1c11)

  61. Did you know that Nixon ending the gold standard, and imposing wage and price controls, was the reason the Libertarian Party formed in late 1971?

    Kevin M (ab1c11)

  62. @59. Yeah but The Big Dick was owed a lot of political favors for campaigning for a lot of GOP candidates after the ’64 loss and cashed them in on the’68 run. By ’72, he ran for the second term on his own, against a candidate they wanted to run against [revisit the dirty tricksters part of Watergate for details]. That ‘faction’ may not of warmed to him, but in ’68, they certainly didn’t object: Buckley summed it up himself o national TV: ‘We’ve nominated Nixon. What’s all the fuss about?!”

    DCSCA (797bc0)

  63. The fact that Nixon had spent the prior 5 years implementing the Great Society and generally co-opting the Democrats’ expansion of the bureaucratic State (the EPA, Clean _____ Act, wage and price controls) was part of it, too. The Democrats hated him for “triangulating” them, the GOP hated him for being a squish. Remember, 4 years before Nixon they nominated Goldwater. That faction never warmed to Nixon.

    Barely a year earlier, Nixon had just been re-elected in one of the most lop-sided presidential elections in history…

    Dave (1bb933)

  64. 58. Even after the smoking gun tape, not all Republicans bailed on him at-once. Two that didn’t would go on to win the 1980 presidential election quite decisively.

    Gryph (08c844)

  65. Nixon was a right Progressive like T-rump.

    Ragspierre (d9bec9)

  66. Ragspierre @ 53 I used that as an example of something Congress critters from each party have brayed about for decades (War Powers, anyone?). Yet, despite ample opportunity, when push comes to shove, Congress punts. All the while bemoaning the oversteps by the C-I-C. It’s only the most consequential consideration of any government: War.

    They want the issue, not tough solution. When they want to get serious about something foundational? They will. It is as clear as can be that they do not want a genuine resolution to the Executive Privilege question. I applaud the majority in this McGahn decision for recognizing.

    Ed from SFV (950df5)

  67. Yeah, OK. I disagree of course, mainly that it opens up all kinds of fishing expeditions when “executive privilege” can be overcome by a committee opening an impeachment inquiry on a party-line vote.

    Kevin M (ab1c11) — 2/29/2020 @ 2:45 pm

    I both agree and disagree with you. The disagree part is because you seem to think it would be a bad thing. I think it would be a good thing.

    Kishnevi (de99b8)

  68. 51.All efforts to write law in hopes of countering human nature are a waste.

    Sorry, THAT is one of the stupidest damn arguments ever made (not calling you stupid).

    EVERY criminal law since time immemorial is directed at “countering human nature”.

    Ragspierre (d9bec9) — 2/29/2020 @ 3:39 pm

    I won’t put words in the posters mouth. But what I interpreted from his post is—

    “You cannot legislate morality”

    Iowan2 (1c4a14)

  69. Everything about the Dems impeachment of 2019 is messed up, because the Dems kept gaming the system. Refused to have a full house vote, authorizing the impeachment investigation. Everything they did was contrived. All well withing their congressional power. But, at the same time demonstrating at every turn, what they were doing was 100% political power battle. Thus turning off 90% of the population that are not news, and political junkies. The rest of the population is too busy dealing with important stuff to sort out political dick measuring contests.

    So this ruling told the Dems, ” while you use legal terms and language, this is a purely political exercise. Have at it”

    Iowan2 (1c4a14)

  70. Few laws counter human nature, no more than your cake recipe counters your desire to gobble down the flower, eggs, and sugar raw. The purpose of laws is to guide us in the society we live in, so that every human being does not have to reinvent civilization from scratch.

    And, yes, we do absolutely legislate morality. Or better said, the laws create morality. Deeply felt, feel-good-and-proud-of-ourselves morality, making those who obey the laws “good” and those who disobey them “bad”.

    nk (1d9030)

  71. And I do know how spell flour and flower. Damn homophones!

    nk (1d9030)

  72. So this ruling told the Dems, ” while you use legal terms and language, this is a purely political exercise. Have at it”

    As Pat’s post points out, this exactly NOT what the ruling said.

    Colonel Klink (Ret) (305827)

  73. 71. Yes, that’s it. The court said the conflict, is a political conflict. No place for the judiciary to insert its self. This is no matter for the judiciary, use the political tools at your disposal.

    I say, and have mention several times in reference to the 2019 impeachment. Dems intentionally couch their arguments for impeachment using legal references. When I or others point out the impeachment articles name no crimes, I get lectured that impeachment requires no crime. Correct. So stop wailing about criminal behavior and get on with the political show.

    Leftist will rewrite the history and talk about how the Republican senate ignored the crimes of this president, and refused to convict and remove. When the fact is, President Trump has never committed a crime. And.. Democrats are the ones proving that fact. Democracts could not find one crime to include in their articles of impeachment.

    Iowan2 (1c4a14)

  74. Or better said, the laws create morality.

    You have the whole cart and horse thing reversed.
    Morality precedes any laws. Laws are an attempt to enforce morality. Mans attempt at playing God.
    Attempt.

    Iowan2 (1c4a14)

  75. President Trump has never committed a crime.

    That’s laughably false! But just keeping it to the impeachment, actually Duh Donald committed a crime in his treatment of congress.

    And he should have been found in contempt.

    Ragspierre (d9bec9)

  76. “You cannot legislate morality”

    Yeah, I know what was said, and my observation applies.

    “You can’t legislate virtue”, would be a true statement.

    “You can’t legislate morality”, is a stupidly false statement. Every criminal law and most civil law, including environmental laws, are morally based.

    It was ever thus.

    Ragspierre (d9bec9)

  77. “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.”

    Yes, perhaps they argued that in the House, but that’s not what they argued before the court. The court rejected the arguments they made, and accepted many of the arguments the government made, which is why the media characterized the ruling as a victory for Trump. Democrats said a lot of crazy and conflicting things in the House, but it’s what they say in the courts that gets ruled upon.

    Jenny from Iowa (357dde)

  78. It’s much like what happened in one of the Obamacare cases: the administration publicly insisted that the mandate was not a tax, but won in court on the argument that it WAS a tax. So the decision was viewed as a victory for the government. Random political utterances by politicians are not law.

    Jenny from Iowa (357dde)

  79. It’s much like what happened in one of the Obamacare cases: the administration publicly insisted that the mandate was not a tax, but won in court on the argument that it WAS a tax.

    This decision is nothing at all like NFIB vs. Sebelius.

    In the Obamacare case, the question was whether the individual mandate fell within the powers enumerated by the constitution. The court decided that question by finding it fell within one of those powers (but not the one originally argued by the administration). But the court made a decision on the merits of the arguments.

    In the case which is the subject of this post, the court explicitly refused to decide on the merits of the arguments, but rather declined jurisdiction entirely.

    Dave (1bb933)

  80. What the Court seems to have said was that subpoenas by Congress are worthless against members of the executive branch( if it didn’t say they are worthless, period)

    This is an issue that courts (and the litigants) have avoided having decided until now.

    It doesn’t make Turley wrong, because the court didn’t decide that until now. (it’s also not a final decision)

    And, furthermore, a court could decide that Charles Kupperman and John Bolton (and the civil servants who testified) are perfectly free to comply with a subpoena, and that the subpoena holds them harmless against any liability for violating any non disclosure agreement.

    Sammy Finkelman (7072ea)

  81. Really interesting breakdown.Thank you for taking the time to write it.

    I really want Congress to be more forceful in asserting their oversight rights and responsibilities.
    I’d love to see them press Pompeo or another appointed official on a legitimate issue and impeach them if they refused to testify fully.

    Which should have happened with some Obama officials, but didn’t.

    If a Dem wins in this year many of the commentators on here will agree with me.

    Time123 (52fb0e)

  82. This decision is nothing at all like NFIB vs. Sebelius.

    My point was simply that in both cases, the court was deciding arguments actually made before it, and not addressing the spin of politicians made outside of the judicial forum.

    Jenny from Iowa (357dde)

  83. The politics of the situation ruled, not the ‘rule of law.’ Revisit the numbers. His party supported him right up until the ‘smoking gun’ tape was made public, which was literally just a few days before he resigned and political support eroded quickly.

    You keep focusing on what Nixon thought. Clearly he was a political person who didn’t care about the law. That’s apparent.

    My point is what the GOP Senators thought. They saw Nixon’s impeachment as political until the tapes were revealed and it became obvious Nixon was guilty. That is when the Nixon-era GOP decided the law trumped politics, something the Trump-era GOP won’t do.

    DRJ (15874d)

  84. @82. If he didn’t care about the law he would not have complied w/t court and tuned over the tapes. What he ‘cared about’ was not getting caught–hence everyone was thrown under the bus including Haldeman and Ehrlichman.

    My point is what the GOP Senators thought.

    And he relayed what the Senators– and he– thought and concluded in his resignation speech– by coincidence watched it again this morning: go listen to it on youtube. Nixon said it himself to the American people: that he’d lost the support in Congress. Otherwise, he’d have fought on. The guy won a landslide victory but the numbers weren’t there in Congress to get an acquittal in the Senate trial. So he resigned.

    DCSCA (797bc0)

  85. This is judicial overreach in my opinion https://www.politico.com/news/2020/03/01/federal-judge-cuccinelli-appointment-unlawful-118477 and a matter entirely within the jurisdiction and practical power of Congress.

    nk (1d9030)

  86. Why, nk?

    Ragspierre (d9bec9)

  87. For the same reasons as the Congressional subpoena case. Who made the courts the President’s personnel department? Congress can impeach Cuccinelli if it wants.

    nk (1d9030)

  88. Who made the courts the President’s personnel department?

    Congress, by passing the law.

    Ragspierre (d9bec9)


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