Posts Made By: James Brown

Originally Posted by Russ Carroll

Refusing to honor congressional subpoenas and block any oversite on top of that will turn our 3-branch government on its head.

Obstruction of Congress is wildly premature, and I think an invalid Article of Impeachment at this stage in the investigation. 

If I understand correctly, Trump asserted executive privilege in response to certain subpoenas.  Executive privilege is a real and important part of the separation of powers. 

It could be that the Executive's assertion of privilege is entirely bogus.  That is often the case, but it is not Congress who gets to decide.  It is the third branch, the Judiciary who must decide whether or not the assertion of privilege is warranted.  

Here, Schiff skipped the "going to court step" necessary to overcome the Executives branch's assertion of Executive privilege.  Schiff is the one who is ignoring the proper separation of powers here and the result is that the obstruction of Congress Article of Impeachment is premature.

If and only if the judicial branch overruled the Executive's assertion of privilege, and then the Executive still refused to produce the witnesses, can a legitimate obstruction of Congress have occurred.  To believe otherwise is to believe that the "prosecutor" (the House) should decide the legitimacy of the "defendant's" (the Executive's) assertion of privilege, and that can never be the case in a free society. 

The D's decided to short circuit the necessary process for political expediency, and if they somehow got away with it, that is what would turn our 3-branch government on its head.  

Jim

Originally Posted by Rod Kaufman

Now Pelosi is upping the ante on Moscow Mitch. She may withhold sending the articles of impeachment to the senate unless the pricks agree to a fair trial with witnesses, ie Bolton and company. Talk about turning up the heat...

Hi Rod:

I don't see how withholding the Articles from the Senate is turning up the heat at all.  Seriously, why would Trump and McConnell care one bit if Pelosi never sends the Articles to the Senate for trial?  Trump will declare vindication, the hard left base will feel screwed, and the persuadable middle will be left wondering why the Dems wasted all this time and money if they never intended to see it through.  Withholding the Articles seems like a lose, lose, lose situation to me.

Do you have a different point of view?

Jim

Originally Posted by James Lacey

Number 4 is a primary concern for many, like myself, who much dislike Trump and his policies. All I can say about impeachment is that I think Trump deserved it and that if what he did is not impeachable, then nothing is impeachable. Given that impeachment is the only constitutional means that we have to hold an out-of-control executive in check, I don't see that the House Democrats had any choice; political consequences be damned. Besides, it's not like impeachment stops ongoing investigations. The SDNY and other congressional committees are still investigating, and if Trump doesn't put a stop to his abuse of power and corruption, he may find himself impeached again. Of this, I'm confident, his scandals are far from over and that does not bode well for his political future.

The thing about the 538 poll, which happens to be one of the most trustworthy in my humble opinion since it is an aggregation and average of lots of surveys, is that it has been remarkably the same. Trump has been at an almost steady -10% approval rating regardless of everything that has happened. I don't think that will turn into a positive change for Trump anytime soon. He is his own worst enemy. For example, who would ever believe that insulting the deceased John Dingell at a political rally in his home state of Michigan would be a good idea? Only Trump could show up to such a rally and suggest that one of Michigan's favorite sons was in hell and then also question the loyalty of John's wife, who now occupies his congressional seat.

Hi James:

Good post, lots to think about - a few quick replies.  Regarding "if what he did is not impeachable, then nothing is impeachable... " - one of our reps. from CO., Ken Buck made the point yesterday that if leveraging the Federal Government for personal political gain is impeachable, virtually all presidents could have been impeached.  He did this without apologizing for DJT's behavior.   Certainly what Trump is accused of is impeachable, the question is whether it was a good idea.  The Constitution provides a better way to check DJT - the ballot box in November.  

Trump's approval delta has been remarkably consistent.  538 compares him to all recent presidents if you scroll down, and most of the others had wild rides.  Trump had no honeymoon of course.  I suppose the consistency of Trump's numbers and his steady negative delta reflect our current state of polarization.  This emphasizes my observation though, that something truly big is happening in public sentiment if the impeachment causes those numbers to move more in Trump's favor. 

Jim

Originally Posted by Russ Carroll

I'm not a constitutional lawyer, but if you want to plead the 5th amendment, you still have to show up and do it. You can't just say I'm not going to honor the subpoena because I'm pleading the 5th. Executive privilege works the same way, no? Executive privilege also only applies on a question-by-question basis. Am I wrong??

Hi Russ:

To consider your questions, we will really have to get into the weeds. 

The Office of Legal Counsel (OLC) is part of the Justice Department and are the lawyers for the Executive Branch.  In the OLCs opinion, "it is unconstitutional for Congress to prohibit executive branch lawyers from accompanying witnesses who are current and former executive branch employees called to testify. OLC argued that this practice would impede upon the president’s use of executive privilege and ability to “control the disclosure of privileged information and to supervise the Executive Branch’s communications with congressional entities.” 

Thus, in the opinion of the Executive of course, if Congress refuses to allow a witness to be accompanied by a lawyer for the executive branch, the executive is fully justified in withholding the witness entirely.  This makes sense to me because the Executive Branch, not the witness, is the one who must assert the privilege.  This blog  is a good source.  https://www.lawfareblog.com/olc-releases-opinion-executive-branch-counsel-officials-subject-congressional-subpoena  

Obviously, the House does not agree.  

My understanding is that Schiff refused to let the subpoenaed witnesses be accompanied by Executive Branch counsel.  His call on that, but  he probably knew they would not appear given the published OLC position.  

Whether or not the witnessess legally had to appear at all under the circumstances of these particular hearings is a thorny issue of Constitutional law that needs to be resolved by the Courts.   This needed to be resolved before any legit Obstruction of Congress  Articles would resonate, in my point of view.  Even so, this underscores the political nature of impeachment.  The majority can impeach for nearly whatever reason they want.  But if Schiff had tried  instead to assert the typical remedy in these situations, specifically to hold the witnesses in contempt,  (see Eric Holder), I bet he would have lost in court.

Jim

Originally Posted by James Brown

Hi Russ:

To consider your questions, we will really have to get into the weeds. 

The Office of Legal Counsel (OLC) is part of the Justice Department and are the lawyers for the Executive Branch.  In the OLCs opinion, "it is unconstitutional for Congress to prohibit executive branch lawyers from accompanying witnesses who are current and former executive branch employees called to testify. OLC argued that this practice would impede upon the president’s use of executive privilege and ability to “control the disclosure of privileged information and to supervise the Executive Branch’s communications with congressional entities.” 

Thus, in the opinion of the Executive of course, if Congress refuses to allow a witness to be accompanied by a lawyer for the executive branch, the executive is fully justified in withholding the witness entirely.  This makes sense to me because the Executive Branch, not the witness, is the one who must assert the privilege.  This blog  is a good source.  https://www.lawfareblog.com/olc-releases-opinion-executive-branch-counsel-officials-subject-congressional-subpoena  

Obviously, the House does not agree.  

My understanding is that Schiff refused to let the subpoenaed witnesses be accompanied by Executive Branch counsel.  His call on that, but  he probably knew they would not appear given the published OLC position.  

Whether or not the witnessess legally had to appear at all under the circumstances of these particular hearings is a thorny issue of Constitutional law that needs to be resolved by the Courts.   This needed to be resolved before any legit Obstruction of Congress  Articles would resonate, in my point of view.  Even so, this underscores the political nature of impeachment.  The majority can impeach for nearly whatever reason they want.  But if Schiff had tried  instead to assert the typical remedy in these situations, specifically to hold the witnesses in contempt,  (see Eric Holder), I bet he would have lost in court.

Jim

p.s.  Trump is not breaking new ground here. Obama also refused to allow Executive Branch personnel to testify before Congress in similar circumstances.  Here is the memo:  https://www.justice.gov/file/30896/download  You only need to read at least the first couple of paragraphs.  According to Obama's OLC, this is long standing Executive practice.

Soooo - please don't misunderstand me - I am not endorsing the Executive's right to ignore these subpoenas.  I am, however, saying that this is a thorny and open issue of Constitutional law.  The rational remedy is to go to the Courts to sort out the scope of the executive privilege issues.  Impreachment is exceptionally premature on the Obstruction article.

Jim 

 

Originally Posted by Russ Carroll

Executive privilege also only applies on a question-by-question basis. Am I wrong??

One last point, and I'll shut up....maybe.  According to Obama's lawyers, you are wrong.  https://www.justice.gov/file/30896/download

Originally Posted by Russ Carroll

Just out of curiosity, if Trump ignores Congress, what would stop him from ignoring the courts, too?

Impeachment and removal by 2/3 of the Senate. 

I'm not joking at all.  Right now, with respect to the "obstruction" issue Trump is taking a position squarely endorsed by many presidents, from both parties.  To my limited knowledge, none have ignored court orders when the issues of privilege have been litigated.  

p.s.  Trump is not ignoring Congress.  He is asserting privilege.  The Exec has been doing this since the beginning of time.

Originally Posted by James Brown

Impeachment and removal by 2/3 of the Senate. 

I'm not joking at all.  Right now, with respect to the "obstruction" issue Trump is taking a position squarely endorsed by many presidents, from both parties.  To my limited knowledge, none have ignored court orders when the issues of privilege have been litigated.  

Also, there was no need for Schiff and Pelosi to skip the Courts.  The Courts can move quickly in these circumstances, and when they do it can be the end of the Executive in question.  https://en.wikipedia.org/wiki/United_States_v._Nixon

So, in my view, Schiff and Pelosi malpracticed the impeachment - assuming that the testimony of Bolton, Pompeo, and the rest would have bolstered the Abuse of Power Article.  This should piss off Ds and Anti-Trumpers everywhere, but it is probably too arcane a point for most folks.  It is not too arcane a point for Schiff and Pelosi though.  Their advisers know the law.  These two chose to rush this through for political expediency, even though it guaranteed no removal from office.  Schiff gave up on any possibility* to have Trump's wikki article end something like this:

"The Court held that a claim of Presidential privilege as to materials subpoenaed for use in a criminal trial cannot override the needs of the judicial process if that claim is based, not on the ground that military or diplomatic secrets are implicated, but merely on the ground of a generalized interest in confidentiality. Nixon was then ordered to deliver the subpoenaed materials to the District Court.  Nixon resigned sixteen days later, on August 9, 1974."

It is laughable to think now that the House or Schummer will shame McConnell into doing the House's job and corralling these witnesses for Senate hearings.

Jim

* (yes James, any possibility"so far" )

Originally Posted by Rod Kaufman

First, Moscow Mitch says he wants a speedy trial so he can dispense with it and exonerate the president.  Second, Trump wants a long and protracted trial. They'll get neither until they get the articles of impeachment. Given the public comments of McConnell and Graham, it's only prudent that the Democrats exert leverage for a fair and impartial trial.

Hi Rod:

My guess is that McConnell, Graham and Trump would be thrilled if the House never sends over the Articles.  How would that look in November?   The D's have no leverage here.

Jim

Originally Posted by Rod Kaufman

Jim,
Trump gave standing orders for all of his staff to ignore Congressional subpoenas and requests for appearances before their committees. Everyone of 
'em. No president has done that before. And if the Democrats went to the courts and won, which in many cases they have, what does the Trump administration do? Appeal and appeal and appeal, all in an effort to thwart and obstruct congress. Trump and company got what they deserved... 

Hi Rod:

Actually, the Nixon and Bush v. Gore matters demonstrate that the Federal Courts all the way up to the Supremes can move in a matter of several weeks in these huge high-stakes political cases.  Also, even if the D's were not thrilled with the process for enforcing subpoenas, Why should they expect that they can recover these witnesses and leverage the Senate now, when they chose to short-circuit the process when they were in charge of the House investigation?

Jim