I find it interesting that "executive privilege only seems to come up when a Republican is in office. Granted, the Supreme Court says it exists, but I don't see it in the Constitution - isn't all that "plain meaning" and "original intent" one of the hallmarks of Conservative belief? If they don't believe that a right of privacy for private citizens exists as affirmed by the Griswold v Connecticut decision, then isn't it the height of hypocrisy for them to claim a right of privacy for public officials via "executive privilege"??
17
Just to elucidate, Warren Burger's opinion in US v. Nixon was joined by every justice who heard or participated in deciding the case. Rehnquist recused himself because he had worked in the Nixon administration.
This fact establishes that justices across the spectrum of the moment agreed that executive privilege exists.
3
@Andy: Sometimes lying is the least-harm way to handle something, but one should have an explanation for it before one does it.
2
@Steve Bolger: What happened to "no comment"? That seems like a perfect way to reply to a question without lying.
What is ironic and which most seem to be ignoring is that any attempt by Trump to stonewall Congressional requests for information can be met by initiating an impeachment proceedings. It ought to be crystal clear that a claim of executive privilege can't block subpoenas issued by the Congress in an investigation of high crimes and misdemeanors of the president. Even a Supreme Court comprised of nine Scalias would reject any such claim 9-0.
6
How refreshing -- an Obama official who actually counsels prudence and restraint.
But the Dems will be unable to help themselves, as they search hither and yon for the magic bullet that brings them relief.
Mr. Trump can, and should, channel his inner Eric Holder, and tell Congress that he'll see them in court -- maybe, and someday. And we'll be well into Trump's second term before we get significant rulings from the Court.
The Dems need to get new thinking caps -- their current ones are coming up dry.
3
So far, the president is acting identically as he did in private business. When pushed by those he felt beneath him, his response was predictable; he stiffed them. That was followed by "let'em sue me." The only problem for him now is that he can't pay someone off to make the problem go away. I doubt Representative Nadler is going to settle for 15 cents on the dollar.
21
Congressman Nadler represents a complex district stretching from the Upper West Side to Brooklyn, which takes interest in Israeli politics too. He doesn't want to play with matches.
Nobody, ships passing in their night.
In 2000 we had SCOTUS choose POTUS.
In 2020 will SCOTUS pardon POTUS?
Who will win? The more important question is how much the country will lose during this debacle.
2
Trumps 'RED MEAT SPICE' has always been "Dems" vs "Repubs." We The People are watching and talking - this is not about partisan politics. This is about Sanity and Truth vs the chaos and corruption of the Trump administration. I think Madam Pelosi and all the oversight committees have to incorporate into these investigations a united front of the facts with an unrelenting VERBAGE that clearly and without ceasing produces LIGHT, insight and ESPECIALLY that which produces curiosity for the uninformed, as to what really is at stake to the heart of Our democracy. Nixon was a choir boy and a saint compared to the sludge rolling up from Trumps soul. Trump and his enablers, synchophants, Fox, etc., are poisoning Our air waves and in print, with gross lies and spin inorder TO suppress truth.... We in Our armchairs, should have a pen and paper at the ready when Trumps synchophants- Meadows, Collins, Jordan and others speak or tweet - mark them, mark them well. Which enablers are up for re-election in the Senate? Mark them. They have not stood up for Our Constitution!!! They have despised and disdained 'We The People' by siding with a monster. Leave no hiding place for this disease to resurface or morph. I guess my point is WE must be LOUDER and BURN BRIGHTER than the protectors of this present darkness.
2
I don’t know but I know who loses as they always do. The American people.
He has packed the courts over the last two years. What I want to know is how we handle all these lifetime appointments of “judges” who are nothing more than paid yes men?
2
The question is meaningless since our "Justice System" moves so slowly for rich people that the election will occur before impeachment, indictment, etc. Also Democrats attack like a vicious rabbit.
Democrats should subpoena the President's academic record, with the excuse that they are checking to see if Cohen lied about needing to protect Trump's miserable academic career. However that would take brains, which is something that both parties obviously lack.
2
People! Do not disregard what Cohen warned about: No peaceful transfer of power, if 45 loses in 2020.
Congress will win. It's in the Constitution - Congress can fire the President. The President cannot fire Congress.
Our government is a republic, not a dictatorship.
2
In a democracy congressional oversight should always win. But as billionaires Jeffrey Epstein and Donald Trump have proven, their riches, powers and influence have earned them preferential treatment in our so-called “rule of law.” The corruption is so pervasive that federal prosecutor Alexander Acosta, instead of going to prison for his felony crimes, is now Secretary of Labor. The Judge in the case even ordered that Epstein not be called a child molester (sex criminal was okay) even though all his victims were children and Epstein was involved in human sex trafficking. No prison, no consequences, no accountability. Anyone who thinks we live in a democracy is deceiving themselves. Money, power and corruption are the lords of this America.
1
America may not win this battle.
Hatred and greed and lies are well entrenched, and the judges are in place.
The GOP are scared feckless.
Get the facts out, and public, while you can.
Seek the evidence.
The Orange King is not OK.
1
Anyone who knows anything about appropriate business dress codes also knows that any sort of initials embroidered on a cuff sleeve is the penultimate of tacky, tacky, tacky.
They could have at least made the "45" orange to coordinate with his orange face and orange hair.
I don’t know who wins just who looses - the American people.
1
No one “wins” in a collision
11
"We the people" will be the losers, no question about that!
After two years of this President's actions and activities (plus the time before he became president), the amount of wreckage left in his wake is overwhelming. For the first time he now has a congressional check on him. He Is now only realizing what that will mean. His handlers will have their hands full denying access to information requested by House committees. Yes, investigate but investigate wisely.
1
@richard wiesner: I'm with the "investigate willy-nilly" crowd myself. Do unto Trump as he has done to Stormy Daniels, I say. What has he done that deserves a measured response?
I wish Congress lots of luck. George W. Bush not only refused congressional subpoenas, but managed to delay sufficiently so that his term ran out before he was ever forced to comply. And Bush was no Donald Trump.
1
Isn't there a distinction between a president's actions that concern executive affairs of state and a president's actions as an individual and whether they broke the laws that govern us all? If not, then 'Executive Privilege' cancels any constitutional right of congress to hold a president accountable, no?
@mark: The Congress can impeach and the Senate can convict a president for wasting money flying back and forth to Florida too much.
"The Constitution mentions neither congressional oversight nor executive privilege. But it is now well settled that both exist. In 1927, the Supreme Court held that each house of Congress had the power 'to compel a private individual to appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution.'"
There you have it, Congress does not have a right to investigate the President for the sake of investigating him. There is no legislative function behind these subpoenas and therefore they should be quashed.
Further, Congress' remedy is to hold anybody who refuses to comply in contempt of Congress and then move to impeach that person sending it to the Senate for trial.
1
Trump will never leave office for fear of being charged and jailed. We are heading for disaster
5
@Mixilplix Trump will leave if he loses in 2020 or has to resign beforehand. He believes in the rule of law and will act accordingly. The left and CNN have created this false belief that trump will not leave office easily to bolster their depiction of him as a dictator or dictator want to be. He believes in the law and there is absolutely nothing to worry about.
1
The constitution is so inadequate in so many ways.It was written 250 years ago, different times, it was a compromise among a bunch of people who actually approved slavery. It is so out of touch. Now we have a president that no one can believe and he is showing us how inadequate all of our so called Democracy laws are. He is showing how a dictator can arise out of all of this. We ned to get real. get into the 21st century, realize the weakness and inadequacy of this ancient out of date paper and rewrite laws that are meaningful and related to today. Forget the so called constitution.
3
@RichardHead: Learn from history to avoid its errors. The man who wrote that "pursuit of happiness" is the common denominator is of human intentions was a hypocrite of the first order, who should have ended slavery in recognition of York's contributions to the Lewis & Clark expedition. Maybe that is why John Adams detested him.
The US Constitution charters a government by consent of the people, limited to the purposes described, with voting allocated and leveraged to some, according to inscrutable rationales rooted in dead issues.
The US revolution was revolutionary because it was done without God. All the drippy sanctimony came later. Government by consent of the governed. May the best ideas win.
@RichardHead: I don't believe the Constitution should be sacred text, but we endanger ourselves if we discard it. A Constitutional Convention would be worse than the Electoral College, and we already know what that did last time. Britain's Magna Carta has served them for almost four times as long, during which they had their own civil war, so age and attributes of the writers are not reason enough to discard the "out of date paper". The prospect of it being rewritten to establish Empreror Donald I is real and horrifying. Let's amend it to get the warts out instead.
1
I get it.
Up until now, I was wondering why the Democrats were focusing in on impeachment instead of finding the best candidate to run against Trump and beat him.
They have no one who can win the Democratic Primary and the National Election.
Biden is their best hope at this point and he doesn't have a chance to win the Primary with AOC & Sanders leading the Democratic Party over the cliff on the left. It's over. It is Trumps to lose at this point. Four years to find someone and they couldn't do it. Incredible. Mind-boggling.
If anything the Democrats should be building up Howard Schultz in the hope that he'll take more votes from Trump than he will take from the Democrats.
5
@P&L: You describe a future that contains the Republicans and the Republicans Lite. I don't believe we need either sort of Republicans.
1
Unfortunately, this is one of Trump's strong suits: Endless, unremitting legal battles that drag out as long as possible. Legal bullying, more than anything else, is what's allowed Trump to amass a fortune. Is he a good businessman? Not really, but he knows how to sue. Trump has been doing this his entire life and he won't make the slightest effort to do anything fair or reasonable. This will be a knock-down, drag-out fight, but a necessary one if we are to uphold our Constitution. Keep an eye on the Supreme Court because their rulings have the potential to bring down our government. Let's hope when choosing between the Constitution and their party, they choose wisely.
7
@Jim Dennis: Trump is only the tip of an iceberg of sociopaths who operate as does, skating between courts that play ping-pong with cases.
@Jim Dennis: The underworld of Trump supporters live on payoffs by insurance companies, because they cost less than litigation.
Among the most important documents are Trump's tax returns for the past ten years and documents related to the emoluments clause. Even if Trump is successful in shielding them from public scrutiny, which is doubtful because they related directly to the power to impeach, he will have lost the PR battle to the American voters yet undecided whether he is crooked. It will not take that many to boot him.
Executive privilege will not apply to a host of other documents such as insurance and loan applications and property tax appeals--documents given greater meaning as a result of Cohen's testimony.
There will more witnesses. Some will describe how Trump uses "code" to instruct, thus giving Comey great credibility that Trump sought to obstruct justice by asking him not to investigate Russia and then firing him for refusing.
.
4
Think about this headline, Ladies and Gentlemen:
"The White House and Congress Are Heading for a Collision. Who Will Win?"
This is not a "contest" between The Con Don and OUR U.S. Congress. Neither of them will "win or lose".
It is WE THE PEOPLE who will suffer under the thumb of The Con Don and his International Mafia 0.01% Robber Baorn/Radical religion Good Old Boys' cabal.
The only way WE will "win" is to DEMAND that the people with power in OUR political, legal, military and secret service complexes SET A NEW PRECEDENT, step up together, put The Con Don, Minister Pence and Traitor Mitch McConnell under Citizen's Arrest and hold them for prosecution for trying to destroy OUR democratic form of governance.
That will leave Speaker Pelosi in charge and she can immediately dismiss The Con Don's cabinet and regulatroy agency appointees, rescind his supposed "executive" orders and start OUR United States of America on the path the majority of Americans want.
Who will have the guts? Please, Good People with power - Just Do It!
10
@njglea: This is a corporate matter. Think of the citizens as stockholders. Our birthright or naturalization is worth one share, our vote. An election is just another proxy solicitation for directors to be elected to a board. This board supports the president as the CEO implementing the spending plans of the board.
We all need to get to know who our two senators and one congressperson are. These are our directors. And then we can negotiate a settlement.
No, Mr. Bolger, government is NOT a corporate entity. Government is supposed to work for 99.9% of us - not the wealthiest.
Govenment is not a "profit-making" venture. It is a profit -controlling entity to stop people like The Con Don - with his inherited/stolen wealth - from taking over.
Now is the time to restore OUR governments back to their inteneded purpose before The Con Don and his brethren can do further damage.
10
@njglea: All of us equally: one vote for each, and may the best ideas proliferate and the worst pass into extinction.
This article illustrates that, contrary to popular belief, the nation does not have a well-established process for holding the executive branch accountable.
We simply have to rely on political appointees to the once by many considered supreme, but nowadays by more and more as obscene 'Court' to find out if the country operates on a higher standard of governance accountability than, say, your garden-variety banana republic when it comes to criminal acts by the executive leadership. Especially when that leadership has support from a significant minority of the population.
The experiment continues.
The same applies to curious interpretations of the Constitution such as the obtusely worded second amendment which refers to a 'well regulated militia' possibly as a precondition to gun ownership. The 'court' has interpreted that to include militias made up of single individuals.
A stretch, you say?
4
@Erik van Dort: Yes we do! But the Republicans discredited even that by using it to impeach Clinton for lying to protect the reputation of a young lady.
@Erik van Dort: I agree. You might find the origin of "banana republic" relevant.
How is it possible for anyone to defend a troll like Trump? No need to list the litany of his misdeeds by him and those who have enabled him.
2
@rhdelp Now that you have asked the question, have the courage to find the answer. Its all out there in the Right media.
This is what happens when a crime boss lurks around OUR white house and gets control of OUR government, "the White House shows no signs of rolling over. It has indicated for months that it is prepared to assert the president’s executive privilege to keep congressional investigators from gathering information about Mr. Trump — including his conversations with high-level advisers."
His "high level advisers" are part of the same 0.01% International Mafia Robber Baron/Radical religion Good Old Boys' cabal who are trying to take over and destroy OUR United States of America, OUR lives, governments around the world and literally OUR world.
There is no question in the minds of thinking, informed, honest people that the Russians and U.S. mafia members stole the election for The Con Don. He and Minister Pence are not legitimate.
People in power in OUR political/legal/military/secret service complexes MUST SET A NEW PRECEDENT by stepping up right now, putting them and Traitor Mitch McConnell under Citizen's Arrest, holding them for prosecution for treason against OUR democratic form of governance and put Speaker Pelosi in charge.
WE THE PEOPLE must DEMAND that the world understand that WE wil never allow someone like The Con Don to get and keep control of OUR United States of America.
Not now. Not ever again.
11
Ultimately the whole mess will land before the Supreme Court who will get around to ruling after the 2020 election. So the main value of this exercise for the Dems is as campaign fodder, Trump knows this, and already is pointing at the Dems as gadflies of no import. The Dems’ challenge is to make this gesture into something important.
5
The Trump strategy will be to stonewall as long as possible. His Republican accomplices will aid him in every way possible, including continuing to work at breakneck speed to stuff the courts with unqualified compliant judges.
The goal is to stall until the election while breaking the agencies of checks and balances. And anyone who believes Trump and the Republican Party, with the aid and funding of their Russian and Saudi friends, won’t do everything in their power to subvert, or even prevent, the next election hasn’t been paying attention.
The corruption runs fast and deep. Is there a road back to some form of government resembling a democratic republic at this point? If there is, it’s likely many of us reading this paper will not live to see it.
We should have the answer by the fall 2020.
5
@Chickpea: As Cohen warned us, Trump may not leave peacefully, even then. Lock him up, now!
Whatever Republicans did to Bill Clinton, the Democrats of Hillary are doing back to them.
We must expect that after this, whenever the Democrats again get the White House, they will get back in spades what they deal out to Trump now.
Trump deserves it? Yeah. That doesn't mean we can ignore wise precedent just to get him. It won't end there. The bad lives on, long after the good is interred in the past.
So the question is, "What limits would Democrats like to see on what Republicans can do to the next Democrat in the White House?" Because that is what is being decided now, as much as Trump's own future.
2
@Mark Thomason: Stormy Daniels should do to Trump what he did to her. I don't need to see it, but everyone who voted for him does, so they'll have to put it on TV so Putin can watch. Then we should decide what to do with him.
The “investigative” and “oversight” obligations Congress spring from it’s essential legislative function. Those obligations are being tested by a President dedicated to breaking norms, pushing the limits on conflicts of interest, nepotism, use of authoritarian tactics and divisive rhetoric. These traits are compounded by apparent ignorance, refusal to consider expert advice and counsel and trashing long time alliances.
The results of the test thus far show that our cherished democracy is flawed. The Constitution separation of powers can be stretched to a breaking point by a chief executive such as Trump. Congress may well lose some of his investigative battles with the executive branch, which would point to the need for stronger conflict of interest and anti-nepotism laws. The laws on the books today which cede legislative power to the President must be reigned in.
However, some of these legislative controls over the executive branch my not pass Constitutional muster.
This brings us to the ultimate “decider” of the fate of our functioning democracy: the voter.Hopefully the experiment with a demagogue occupant of the White House will inform the voter’s next choice. Only the voters can rescue our democracy.
4
What to do with all those “ bespoke” 45 cuffs?
3
Who wins?
America
That was an easy one.
1
Of course I want Trump removed from office immediately, but if it means waiting until he is out of office for him and his cronies to go to jail, I will gladly accept that. If this guy avoids jail time or at the very least, the shutting down of his business empire with millions of dollars in fines, then this country of laws will have forfeited to the criminals.
4
The article says "With the 116th Congress up and running, President Trump is facing meaningful congressional oversight for the first time."
More accurately, the article should say that "Trump is facing meaningful oversight for the first time IN HIS LIFE."
Before this, he has always had somebody around to bail him out, or "fix the booboo," starting with his daddy, his first "junkyard dog lawyer" Roy Cohn, his "fixer" Michael Cohen, and people like Rupert Murdoch of Fox and David Pecker, head of AMI, and most recently, all the Republicans in Congress, who would cover for him, look the other way, or deflect bad news.
Talk about a "wake up call."
Welcome to reality, Donnie. It took you long enough.
16
@Joe From Boston: Americans had better wake up to the reality that their one congressperson and two senators are their only voices on the Board of Directors of USA, Inc.
1
I think we're entering what potentially could be an existential battle for the survival of our government. Our countries politics are in an uproar from the scorning of the Paris climate agreement to the President hugging the American flag in an unhinged manner. I think the Democrat led house is merely trying to meet the Constitutional requirement of doing oversight of the President.
12
@Javaforce: To tame corporations, we need to take control of the one corporation we all own: USA, Inc.
A few days ago, without any thought of why or what for, the US congress took it upon itself to launch a years long multi million dollar probe into Trump.
Why? Because it can and because the left has run out of ideas on how to get rid of him. The left believes there has got to be some dirty secret somewhere.
Good for the American people? Good for the American system of a democratic republic?
5
@Charles Segal
Yes, Charles. Oversight of the President is a good thing for the American people.
Actually, these issues are a lot simpler than Prof. Shaw describes. One need only look at the rulings of the Roberts court to understand that this Supreme Court will toady to Trump.
A highly partisan, Republican Supreme Court (despite Justice Roberts' protestations to the contrary) has five solid votes that will toady to Trump. The Roberts court undercut President Obama's executive authority at every turn. For Trump, however, the majority has no such concerns about "executive overreach". And recall that the Roberts court gutted the Voting Rights Act, and brought us Citizens United.
This Republican Supreme Court also handed Trump a victory on his Muslim ban, with absolutely no substantive showing of terrorists entering the U.S. from the banned countries. No doubt they will side with Trump on his racist declaration of a national emergency, an emergency that exists only in his mind.
Anyone who seriously believes this Supreme Court will side with the House Democrats and order Trump to produce witnesses or requested documents is naive in the extreme. This court will kowtow to Trump with an expansive interpretation of executive privilege that will essentially gut the Constitutional responsibilities of the House. And when they do so, there will be no further doubt that we are living under a dictatorship. Their message to Trump is that he may do literally anything as president. Bet the rent on it.
6
The US evidently cannot establish who has authority to establish anything.
6
This piece makes a fair point but lacks nuance. First, the judicial process proceeds slowly and so will most likely go past next November. The outcome of the next Presidential Election will therefore not be influenced by any new revelations. That may not matter if the Mueller probe surfaces those findings and Congress should focus first and foremost on making sure those are made public. Furthermore, the issues most likely to bring Trump down are criminality as a private citizen, not those for which he can claim executive privilege. These are being pursued by Federal District Courts and the previously established "custom" of not indicting a sitting President needs to be revisited, given the unique situation the Country finds itself in. If the Dems focus on Russian collusion and obstruction of justice we are likely doomed to face another four years of hell.
2
My layman's view is that while executive privilege may be preserved, there is a level of scrutiny that must be maintained to insure that Trump who regularly "colors out of the line", is held accountable for any misdeeds and outright violations of the law. The constitution must protect our democracy. No president can be allowed to rule as monarch.
8
@Guitarman: The Constitution has the President reporting to Congress, acting as a board of directors. Marbury v. Madison does not establish that the US Supreme Court can alter this.
I doubt very much that Nadler or Schiff need this warning, but the detailed analysis is very helpful to panicky liberals like myself who are terrified that the Republican Party has gone from opposition to national security threat. What if the President's advisors are Rupert Murdoch's unvetted, sans security clearance staff and agents of foreign authoritarian nations? (See Jane Mayer's recent investigation of the Fox/Trump alliance in The New Yorker).
4
@mary bardmess: The Republican Party is a collection of children forced to come to grips with the reality that the God it purports to be created and governed by does not exist, for all Constitutional purposes.
Every day in the Oval Office a portrait of Andrew Jackson peers over Donald Trump's left shoulder. He should follow Jackson's advice on executive privilege. " If Congress...can point to any case where there is the slightest reason to suspect corruption or abuse of trust, no obstacle which I can remove shall be interposed to prevent the fullest scrutiny..."
5
In due time we’ll see whether the Supreme Court will support the Constitution or support the bonkers Oligarchy controlling the White House and the GOP. If they make some decisions before 2020, the reigning in of the Court will become a major election issue.
9
It would be surprising if Trump and his adminstration is fully prepared for the onslaught of oversight by seasoned professionals and staff. There is scant evidence that the administration has been fully prepared to manage actual emergencies, the day to day operations of the White House, or most of all, manage anything politically without the past help of a republican controlled congress.
So, that leaves the republican packed Supreme Court. Trump will bring his case in a heartbeat to the Supreme Court, I'm sure he thinks its his ace in the hole. And he may be right.
4
The Congress and Senate constitute a board of directors, and the president is the CEO under their supervision. The US government is a public corporation we the people own. Manage well.
What, Kate Shaw, would you do is you were #82 on the list and received the letter with Exhibit A, two pages, attached? I know what I would do if I was #83, I would show my contempt of Congress and throw it in the trash. Scott Baum
1
Trump will win.
Time is on his side, because he can stall with respect to all requests, or subpoenas, and, in the end, SCOTUS will save him. That's his approach; he laid it out for the world to hear last week.
"Settled law" does not mean that precedent cannot be reversed or narrowed or broadened.
And, narrowing or broadening is not hard if the facts of a new case diverge enough from the previous "settled law" case.
And, not hard if the underpinnings of precedent are based upon a right that has been implied by the courts, as opposed to being included in the Constitution in clear language.
Also, the ability to rely on legislative intent for interpretation decreases as the issues become more complicated than the Founders anticipated.
4
Its cute that the author a former lawyer in the Obama admin has any faith in the Supreme Court. Why do you think Trump packed the court with who he did? It is not an accident it is so he can protect himself. Kavenaugh will go along with anything as will most likely Gorsuch. One has to hope John Roberts is not a complete hack.
9
I wouldn't worry too much. The topics Congress will most stringently pursue are self-narrowing. You don't go into a Supreme Court battle over congressional oversight with a dragnet. You use a scalpel. If Trump claims executive privilege over everything, Congress chooses one thing which Trump can't credibly refuse. Start with that one thing and chip away at executive privilege from the outside in.
If Congress can have tapes, can't Congress have emails? If Congress can have emails, can't Congress have phone records? If Congress can have phone records... and so on.
What remains of executive privilege in the end will be equivalent to pleading the Fifth. You only use that option if you want to admit guilt of wrong doing. The public will perceive it as an admission of wrong doing regardless.
84
@Andy. And how long will that take, sir? By the time the Court “decides” each of these individual issues the Congress and the Court will be moot points. Only the President will decide what is important and what is to be done.
3
@Andy: Trump could not care less about all this procedural muck a muck. It's for lawyers.
2
@Andy
How about just 1 thing that does not have ANYTHING to do with national security, government policy, or white house operations.
His tax returns.
22
The rush to launch a new inquisition suggests someone on the House Judiciary Committee has been granted an advanced look at the Mueller report. Trump is right to refuse to turn over documents. If the Judiciary Committee opts to subpoena the documents, federal courts should require it to show probable cause for each document, especially since it appears the committee wants to explore ground—such as the Trump Tower Meeting—already tilled by the Mueller investigation. The Judiciary Committee is merely conducting “opposition research” for Democratic candidate in the 2020 election.
4
@William Case
Your fine with the mobster in chief and all his destructive henchpeople?
You don't care that there will be a country - and a world - for your children and younger friends to inherit?
Short term profit uber alles!
Best buddies with the world's dictators, wanting to jail, torture, and imprison opponents.
Equating wealth and power with god, and blaming victims for anything that goes wrong.
Try the Gospels, if you call yourself a Christian.
Jesus wept!
12
@William Case No it merely suggests that the GOP congress failed its congressional duty to conduct due diligence and oversight of the executive branch. My guess is you were not out here screaming for discretion when the GOP led house had 37 hearings on Benghazi.
13
@Susan Anderson
The FBI asked National Security Advisor Michael Flynn if he told the Russian ambassador during the presidential security period that Russia should not retaliate against the United States for sanctions imposed by the Obama administration until the Trump administration had time to review them. Flynn answered: “Not really. I don't remember. It wasn't, 'Don't do anything.’" That statement, which the Special Counsel Roger Muller judged as misleading, is the only “crime” so far attributable to the Trump administration.
No one has been charged for a crime committed as members of the Trump campaign.
George Papadopoulos was not a member of the Trump campaign when he made misleading statements to FBI agents during a post-election interview about his lawful but unsuccessful efforts rho set up a meeting between Trump and Putin. Roger Stone was not a member of the Trump campaign when he lied to Congress about his contracts with WikiLeaks, which—if they actually occurred—were not unlawful.
2
Who wins? Whoever wins at SCOTUS is who wins. And with this court, packed with far right wing Republican partisan ideologues, Trump wins.
2
Do the good guys ever win?
4
The House is investigating criminal behavior by Trump; as such Executive Privilege is another form of "an accused cannot be required to testify against himself".
Executive Privilege should apply when it involves the execution of Presidential duties, in cases of Malfeasance, nonfeasance, or misfeasance.
Trump should decline testimony and evidentiary request based on his 5th amendment rights, just like any other US mobster.
3
That's the best that a law professor and director of a center on the Constitution can give us?
Most of us could have written this, even without a law degree.
Hope there's a follow up, especially one that examines
1. how the members of the Supreme Court have ruled on related issues in the past (especially executive power)
2. how oversight committees can compel testimony or, at least, ensure that the people refusing to provide documents appear under oath and are forced to plead the 5th during national televised hearings.
3. how those committees can still gather testimony, documents, and evidence to investigate these matters.
4. the type of requests that have been made and the extent to which they could even be remotely considered part of executive privilege.
Otherwise, as happened, the result is a vacuous column filled with generalities.
4
The Democrats have to know that continued extensive investigations will just make them look petty and vindictive. The Mueller investigation is already making them look like aggressive, petty, sore losers, and if they think two more years of bad press will help them, i disagree. When someone trashes another person every day, sooner or later it reflects bad on the accuser. I think we're already there. The big revelation that Trumps assets have a Tax Basis or Assessed Value that is lower than Fair Market Value is not news. Any home owner will tell you they pay property taxes on the Assessed Value of their homes, which is far lower than market value.
When Trump points out that they spent two years calling him names and trying to make him look bad instead of actually working, they will have no defense.
3
@RD: "When someone trashes another person every day, sooner or later it reflects bad on the accuser. I think we're already there." You nailed it! Trump's constant personal attacks against anyone who does not genuflect before him have reflected badly on him. (Boy, is that an understatement!) We were already there during the 2016 presidential campaign.
4
Yup. Exactly right.
1
@RD
The Mueller investigation was ordered by Republican appointee Rod Rosenstein, not the Democrats. Mueller is a Republican. The Democrats had no power in the first two years of the Trump administration. They do not run the Mueller probe, nor have they ever run the Mueller probe. Accuracy of facts matters.
Leaving Russian collusion aside, here are multiple publicly available facts as well as guilty pleas and convictions by a court that suggest Trump may well have engaged in criminal activities including assisting in money laundering, campaign fraud and obstruction of justice. This is a just a short list of likely violations. The Republicans call investigation into these things partisan. This is an absolutely irresponsible and ridiculous claim. Congress has an obligation to proceed. The problem is that there are just so many allegations it is hard to hone in on them without looking like they are asking for the kitchen sink. Because, really, the potential criminality of this president is "unpresidented", as Trump would say.
5
Trump will win in a Supreme Court stacked with a Federalist Society majority. They were put there for a reason, to exalt executive power.
45
@Garak
To exalt republican power. With a Democrat as president there could be a difference.
7
@Garak: They will lose all credibility when they overplay their hand.
2
@Steve Bolger: What credibility do they now have to lose?
3
Attorney General Barr made it clear in his confirmation hearing as well as in his last stint whose side he is on. The very idea that "executive privilege is stronger than congressional investigations" says but one thing. The President IS above the law and can do whatever he wishes.
How much or what was he paid to join this current lawless administration? His son-in-law just joined the White House Counsel's office. Conflict of interest? Nepotism? Nah, not for this bunch where anything goes.
109
@LFK: Think of the president as a CEO, and think of the Congress as a board of directors. That is how the Constitution provides for the supervision of presidents.
3
@Steve Bolger: Sorry to pick on you.
It's clear we have a would-be Emperor Palpatine in the White House, the Republicans in Congress are his minions, the Democrats are what's left of the Resistance, and Jerry Nadler is Luke Skywalker. Keep your analogies straight, and use the Force!
3
This isn;t aabout the rule of law.
It's about progressive left's relentless pursuit of the erosion of the Constitution of the United States, and the transfer of natural sovereignty from the people to the state, so that natural rights become priveleges that may be granted and revoked arbitrarily by the state.
Any investigation of a sitting presidents actions while in office are within the purview of the Congress asa potential basis for recommending impeachment.
Investigations into private business affairs that predate candidacy are clearly, only, within the purview of the DOJ.
The leftist ideologues who control the Democratic party hold the citizenry and the Constitution in contempt, and their constant invocation of double standards for conduct will never end, until they are once again cast out of power.
The good news is that because they hold all non-progressives in complete contempt, they will see that the majority of America has become fed up with their abuses, so early in their return to power in the House.
They are going to be out, again, in 2020.
2
The line from "The Mikado" comes to mind:
"Well, HERE'S a pretty howdy-do."
The question arises--and (hostile to Mr. Trump and all his works though I am) I think it a legitimate one.
This man's record of shady, dubious deals--the strong suspicion of SOME kind of collusion with the Russians--the morally questionable doings that give this White House such a bad odor--
--might that not warrant the Supreme Court saying to itself: "The circumstances right now--the general state of feeling in the country right now--the abominable uniqueness of this dreadful President right now--
"--all these call for extraordinary action."
Which leads (as ever to two thoughts)
(1) I've always remembered "Mr. Dooley's" tart comments of a hundred years ago. That hard-hitting, no-nonsense Irishman! who remarked that "even the Supreme Court justices read the papers."
And they do. Don't they? They must recognize as well as anyone the huge cloud of suspicion that hangs over this White House.
(2) Look at the election of 2000. It is unclear to me that the Constitution--or anything or anyone else--empowered the Court simply to step in and settle that election.
But they did it. The public welfare (they felt) required no less.
How about the public welfare right now?
We're in a bad way right now, Ms. Shaw.
As I'm sure you know.
As we all know.
2
The Roy Cohn scorched earth approach to perceived attacks ... the DJT standard reaction ... not exactly the reflective, thoughtful, well crafted response one would expect from a president with a staff of world class advisors. Oh, point taken. DJT doesn't have those.
2
No one will win!
2
"If that happens, the courts will have to reconcile Congress’s need for information with the president’s need for confidentiality in his communications with advisers and when it comes to information that might implicate national security or international relations."
In light of the following, I find the author's conclusions here rather laughable.
On May 19, 2017, the NYTimes reported the that in a May 10 meeting with Russian diplomats in the Oval Office, the POTUS told them, “I just fired the head of the F.B.I. He was crazy, a real nut job,” Mr. Trump said, according to the document, which was read to The New York Times by an American official. “I faced great pressure because of Russia. That’s taken off.” Mr. Trump added, “I’m not under investigation.”
I fail to see how the POTUS was concerned about national security or confidentiality in these exchanges, in the Oval Office, with a government considered to be a long standing enemy or threat to the security of the United States. What entity poses more of a threat to confidentiality and national security? Clearly, it's the POTUS. That is what this battle is about, at the core.
105
Executive privilege hides too many presidential sins, especially the sins of this reality show president, whose corruption, lies and unbridled narcissism have tarnished the office to a degree unseen in our history. It should be done away with in the interests of transparent government.
87
I love the meaningless statements and imagry that the office is "tarnished", which roughly translated means...absolutely nothing. Enlighten me, what does this sentiment actually mean?
3
@RD
I think she was clear. His "corruption (obvious), lies (documented), and unbridled narcissism(clear as day)". Who wouldn't agree that this tarnishes the office?
19
@RD Let me explain: in this context It is a metaphor.
12
The only reason the current set of investigations seem excessive to some is because republicans have neglected to do any meaningful investigation during Trump's first two years in office - now we're playing catch up. Republicans have protected the president at all costs, and our democracy is in peril. This will indeed end up in the Supreme Court, and the court's credibility is at stake. Let's hope they protect the integrity of our country.
13
Congressional investigators must be prepared for an ironclad Executive refusal to cooperate. They must be prepared for a Supreme Court taking the side of lying Trump. But,
Congressional investigators should prepare for the tyranny of lying Trump and the Republican SCOTUS by taking the case for the survival of our democratic republic to The People. The House Hearing which put Michael Cohen before The People, is a good example of what congressional investigators need to do. More of.
Democrats must make the nation aware, 24/7, of lying Trump's obstruction of justice and the obstruction of justice each and every time the Administration refuses to cooperate. Make the story of obstruction the narrative of every news-cycle.
The need for congressional investigations must dominate the national discourse. The People must be informed of, saturated with how corrosive lying Trump's obstruction of congressional investigations is on our democratic republic. If Republicans continue to defend lying Trump and try to block the investigations, the nation must be reminded daily of congressional Republicans' failure to honor their oath of office. Obstruction of congressional oversight undermines the Constitution making Congress subordinate to the presidency.
Democrats must be prepared to bring The People to their side in this existential fight for the survival of our democratic republic. The other side of this fight is lying Trump, Republicans in Congress and Republicans on the Supreme Court.
18
I have been watching this executive privilege nonsense since the 70s. Like many things in government it is just one of the many practices that unethical and corrupt politicians/white-collar criminals used to hide their actions and behaviors from the American people. That said, there is no way that politicians, politically appointed members of the Justice Department or the politicized Courts are going to fix the problem with existing practices/procedures.
Suggestion to build on, review the requested materials or testimony in a closed door session of no more than say 4 people — leadership of the House and Senate. The leadership should be required to sign a legal waiver of 5th Amendment rights so that a lie detector tests can be given if there are leaks. Failing a lie detector test with regard to leaked information should result in an immediate suspension from Congress while a criminal investigation is conducted.
If unethical or illegal behaviors by the executive or their staff are found to exist then let the games begin.
This needs work, but hey it is better than what we got.
1
The idea of "Executive Privilege" originates from memo's written up by subordinates to Eisenhower to provide him justification, after the fact, for not disclosing actions of the CIA, notably U2 flights over the Soviet Union. Conjecture and argumentation -- not constitutional law discussion -- support "Executive Privilege"; reality does not.
2
For once a writer was able to share a perspective from both sides of a issue. Unfortunately Mr Nadler is ignoring the “both sides” approach, simply watch his interviews on Sunday w/George S.
1
Congress can refuse to fund when it doesn't get what it wants. Use that power
Who wins?
An easy question; the rule of law and America win!
Easy? When Trump has stacked the court with executive power sycophants?!
1
Nixon V United States
decision 8-0
Executive privilege does not allow for hiding evidence of criminal activity from investigators and congress
There is not even a question, unless the 5 reactionary radical right wingers on SCOTUS decide they wish to end the United States as a Constitutional Republic
6
This abomination of what we call the president may be able to fend off Congrss, but:
1) They will nail him after he leaves office for the remainder of his life, and/or,
2) The Southern District of New York will file criminal charges during his term and even this abomination wont be protected by the Supreme Court.
8
Trump should back down but he does not seem capable of admitting defeat.
A virtually "bright line" principle of law has been that no non-marital privilege can be asserted to hide evidence of a conspiracy to commit a crime engaged in by the persons invoking that privilege.
It will be interesting to see whether Trump's Russian-Republican judicial henchmen regain their integrity and promptly uphold traditional American jurisprudence or they continue to succumb to partisan political expediency.
2
The Constitution gives Congress the power to impeach the president and should by extension give them the power to collect evidence. It says almost nothing about executive privilege. If the Justices especially the conservative ones are true to their goal of strictly interpreting the constitution they would allow Congressional oversights. Otherwise, Congress will have no power to over see the president and if the emergency powers Trump assumes over the power of the purse stands, Congress will have no power left at all. Dictatorship here we come.
3
If the supreme court sides with the president, our representative system of government will be rendered useless. If the president does not have to answer to congress and if he cannot be made to appear in any court, then he has absolute power and is answerable to no one, not even the supreme court. All institutions in government will be made worthless.
5
Tying things up in the courts is a Trump favorite means of avoiding laws.
The overriding issue in this topic is that the American system of justice, in its concerns to protect the innocent, leaves itself open to exploitation to those who realize that the time, limited resources, and cost of litigation are deciding factors in far more cases than expected by idealistic law school texts.
Trump is exploiting that weakness as POTUS just as he did in his real estate business.
Trump riches were acquired with an undercurrent of fraud and breaking laws, forcing litigation against him, and using time and barrier of legal expenses to demolish his subcontractors. His MO was to refuse to pay on the basis that the work was "substandard"; let the contractor take him to court; make it clear that the time and expense of a court case would far outweigh a just award. Settlement for a small fraction of the costs was the common result, keeping the results secret and not admitting guilt.
Just as in business, Trump can be expected to tie up any and all document requests in courts, with appeals well beyond the next election, possibly with no decision ever being completed by SCOTUS.
One cannot help but believe that our legal system leans much too far in favor of those with resources adequate to perpetuate a lawsuit forever in order to break the laws.
It appears that the American values and ethics are undermined by the system of "justice" that is so fundamental to those values and ethics.
8
Elections have consequences and on that night in November 2016 we turned over our judicial system to a party that only seeks political advantage and not the rule of law. It was a large part of that sinking feeling I felt on that election night. When a president is as lawless as ours, how can we investigate that person assumes a position that he thinks is above any law. Is Trump any scrutiny ? Is he a King? Or will the Supreme Court where this issue is bound land grow a spine and be the independent branch of government that it was supposed to be.
11
@just Robert Obama signed the Iran deal without bothering to consult congress. I think it was a good thing and he has the support of many Democrats.
But it WAS an abuse of executive privilege.
The important thing about Trump and his wall is that he will probably lose and in politics it is the victory or defeat which matters and not principles.
1
@Ludwig
Other Presidents, including Republicans, also signed similar agreements without Congressional consent.
Are all those abuses of executive authority? Or only those of Democratic Presidents?
2
Executive Privilege and U.S. court practice preventing indictment of a sitting President is Trump’s dream. He has lived outside the law his entire life and obviously has no respect for the U.S. Constitution or its Principles. The man may not even leave after his second term, if heaven forbid he wins!
10
@Margaret Ammirati " He has lived outside the law his entire life"
Not really. He just has not lived inside enough. His peregrinations about Stormy Daniels, or his paying off the judgment against Trump University show that he does obey the law even if he does not respect it as much as we might like.
3
This country is now on a slippery slope with a president who shows no respect or regard for the U.S. Constitution, preferring instead to rule over it like one of his personal enterprises.
This is not what the Founding Fathers had in mind.
That is not what the majority of Americans want.
And this Congress, which finally has a House capable of asking the questions that need to be asked should proceed with doing just that, while being mindful that any inquiries relating to a possible "obstruction of justice" or "other abuses of power" by the Trump administration will be regarded as an overreach -- or as this president prefers to call it a "witch hunt."
Of course, after stacking the Justice Department and Supreme Court with his hand-picked acolytes, it's going to be a challenge to prove anything.
But that should not deter the American People from demanding an answer and accountability, as nothing less than the very fate and future of our country depends on it.
17
I read yesterday a story about the WH's brand new legal justification for refusing to turn over documents related to Jared Kushner's security clearance: executive prerogative. If they're putting up a fight on something like this, which they will probably lose, it's pretty clear they will fight tooth and nail to protect any information that could possibly be related to executive privilege.
8
Trump should win. One of the house committees is asking for ten years of tax returns. Those returns have absolutely nothing to do with Russia or obstruction. All of them are reviewed by the IRS and eight of those years were during the Obama administration. Probable, most if not all, were audited. One of the reasons a president has advisers, is to talk about various options. To one person it may seem reasonable. To another illegal. It has been reported that Obama had lawyers review military actions for legality. In Nixon's case, he talked about doing things and other options. Not one advisor said, “We need to find out if that is legal. I don't think it is." We need to allow our president to be able to talk frankly about options good or bad, legal or illegal, without oversight by congress. Hopefully the advice will be better. But these hearings, are not about Russia or obstruction. These are about vengeance wrecked on a bombastic, self-promoting, reality show host who had the audacity to win the presidency and take both houses with him and for sure, they want to keep him off the ballot in 2020.
2
“Those returns have absolutely nothing nothing to do with Russia or obstruction.”
How do you know?
In fact, there is growing evidence Trump may well have been involved in Russian money laundering and shady Trump Tower in Moscow deals!
Plus, there are enough detailed investigative reports on his financial frauds and improper tax avoidance (Trump University, Trump Foundation, irregular real estate deals, inflating assets for Forbes, while deflating them for tax purposes, etc.), that a full-scale investigation is warranted.
Who is claiming that the tax returns are part of obstruction of justice? That's a different set of actions— firing Comey, ordering Mueller fired, floating pardons, etc.
Trump's crimes are not just about collusion with Russia; in fact, your focusing on that shows you have fallen for Trump's lies and his distorted view of the matter!
6
@Ron ten years of Trump’s tax returns “have nothing to do with Russia”, unless of course they do have something to do with Russia or possibly even have everything to do with Russia.
Without seeing and verifying the accuracy and completeness of Trump’s returns it is not possible to determine the degree of Trump’s connection to Russia, but it has been established beyond all doubt that there is some connection.
3
@Swift Trumps tax returns were sent to the IRS who go through all of them Eight years were during the Obama presidency. Also his Justice Depart was available to look into his business dealings. Is there a reason to think either was incompetent. As far as doing business with Russia, there was 25 billion dollars of trade with them last year, 19 billion of that was the U.S. purchasing from them. If fact, up until about two to three years ago they were a significant supplier of security system for our government as well as missile components. It is not illegal. There is a "Connection between Russia and our government." It isn't and wasn't illegal. If there are any suspicious dealings, that should be looked, at by Justice or the IRS. Not a bunch or or vengeance seeking politicians and their paid for lawyers.
1
We are facing the autocrat in charge whose gut tells him what to do and when and how. He acts on intuition and on nothing else. As clear in a recent article in the New York Review of Books this argument, above, is very clear. This man acts on instinct alone, his gut tells him what to do, his feelings dictate his actions. And those actions can change instantly, from referring to Kim Jong Un as "little rocket man" to telling the world that he and Kim are in love. Can the Supreme Court deal with this? I hope so because if not we are doomed.
5
It's one thing to claim executive privilege to protect national security or other sensitive matters that could cause damage to the country. It is another thing to claim executive privilege in order to cover up and/or obstruct investigations into criminal behavior of the presidency.
I think we all know which of the two Trump and his administration are claiming.
12
The winner will be determined by the party that moves together towards the ballot box for the next Congressional and presidential elections. If progressive and centrist Democrats do not align behind the Democratic nominee after a clean, fair fight through the primaries, not only will we fail to indict Trump for his crimes - Republicans will accelerate gerrymandering and Democratic voter disqualifications, and block voting rights in every way they can think of (Kemp's election in Georgia is now the dirty playbook for GOP candidates around the country), they will restrict freedom of the press (see Clarence Thomas' and his wife's collusion with Trump on suing journalists for libel), and they will deepen their alignment with enemies of state to corrupt our voting processes even further than they do today. Our Democratic Republic will not endure another four years of Donald Trump doing his illicit best to topple it.
Progressives and centrists should both take heart that, no matter who the ultimate Democratic nominee is, they will restore and safeguard our voting rights by overturning Citizens United, and cleaning up voting violations around the country. They will also ensure that no more alt-right justices are appointed to the Supreme Court or joining 100 plus young federal judges Trump is appointing this term - all committed to destroying equal rights. The very first step towards progress is restoring our right to vote.
Vote Blue in 2020. Together.
27
One interesting revelation of the Trump era has been how extensively the executive functions of the republic have been governed until now by tradition and norm, rather than specific laws.
Americans sometimes look down on British parliamentary systems, without written constitutions and founding documents, where common agreements and unwritten convention regulates governmental affairs. It has been salutary to learn just how little force the Constitution and shared norms have to rein in a criminal Executive.
The Founders' constitutional language may have anticipated a tyrant wanting to be president, but not the head of a crime family with a slick understanding of media, a mafia family to run errands and a consigliere to intimidate rivals.
Congress has its work cut out.
33
Montesquieu, who articulated the modern principle of the separate of powers for Western democracy, said that each Power should only exercise its own functions:
"When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner."
"Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression."
There would be an end of every thing, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals."
— The Spirit of the Laws, 1748
Montesquieu also said that the independence of the judiciary has to be real, and not merely apparent.
The judiciary was generally seen as the most important of the three powers, independent and unchecked.
https://en.wikipedia.org/wiki/Separation_of_powers#Montesquieu's_separation_of_powers_system
We're about to see if this Supreme Court supports the rule of law or the corrupt, lawless rule of Trump.
128
@Socrates I clearly need to read more. Thank you for this historical perspective on the separation of powers.
27
@Socrates apparently Roberts respects the separation of powers and at times seems to avoid overruling legislation. Kavanaugh I fear is a partisan hack. Gorsuch may surprise.
6
@Socrates. My money is on an obsequious Supreme Court upholding the President’s faux Emergency on the grounds that he has the authority to do so. In fact, I would not be at all surprised if they point to the fact that the Senate will not have over-ridden his veto to justify their decision. The Court often looks to the legislature’s discussion around a law to see what the “intent” was. They won’t have to go too far back in time to say that the lack of an override shows that the Congress supports the right of the Executive. They will have no opinion on whether what the Executive wants to do is right or wrong or necessarily needs to be based on reality.
They will say it is “legal” and consequently, the US President from here on out could be as tyrannical as they wish.
11
The House May find that it’s investigative powers are limited by the Supreme Court. Congress has no authority or responsibility to oversee an individual private citizen which is what Trump was before being elected. Dems May very well come to rue the day. Even if successful they will have created the precedent that every Dem President thereafter is perpetually investigated by Republicans. Remember, when Dems eliminated the filibuster, how did that work out for them?
1
@Matthew
This article makes abundantly clear that the Republicans "perpetually investigated" the Obama administration without the "precedent" you predict. So what do they have to lose?
5
@Matthew Wasn't Whitewater about private citizens? While the Supreme Court did not consider that question then my feeling is that it's not applicable here anyway. Trump was not a "private citizen" once he won the Republican nomination and if the election was based in part upon fraud that was a pretty significant assault on our democracy. In any event, if Cohen was telling the truth about reimbursement for hush money in March 2017, Trump was already President.
3
Executive or Congress, Who Wins? Simple answer is "None of the Above." But I can tell you, one thing for for sure: the American public loses. To confess, I'm having a "glass half-empty" day...or maybe year. There has been a distressing and ever bolder line of malfeasance running through the presidency, most obviously starting with Nixon, though some might argue that. Decisions avoided, accommodations reached, pardons extended, the Dellinger 1973 memo (when Dellinger himself asked "How do you want this to come out?" on whether a president can be indicted?). Then, it was a device to get rid of Agnew. For some odd reason, that 1973 DOJ "finding" now constrains us. And the guy who kited all the pardons for Iran-Contra before scurrying out of town is now running DOJ. By all means, when no one (except the low level players) ever pays a real price for their malfeasance, we guarantee this happens again. And again. And again. And Axios reports today (from a just completed Axios-Harris poll), among America's most visible companies, the U.S. government, as a provider of services, is near the bottom in *all* categories including ethics, trust, culture, vision and citizenship. Way to go, swamp-dwellers!
8
It seems to me that Executive Privilege should not be a factor at all in the many document requests that pertain to trump's personal and family business matters. There is no threat to national security, or even any connection to his role as president; therefore, these should not be contentious. As to those related to possible obstruction of justice, there is no reason why those requests shouldn't be treated the same as any such requests that were made and honored previously by the Congressional investigative committees under Republican leadership. Also, should these matters rise to the level of the Supreme Court, I believe (perhaps naively) that John Roberts will exercise a moderating vote. I do believe that he realizes that all SCOTUS decisions now become part of the legacy of The Roberts Court. Unlike partisan hacks like Thomas and Kavanaugh, Roberts cares about his and the court's legacy.
18
@Caveat Emptor
Republicans subpoenaed both Bill and Hillary Clinton to testify in Whitewater. Executive privilege did not apply.
Same here.
6
What the title ignores is the question that should be at the heart of all this (not whether Congress or the White House 'wins') but what is best for the country and the American people. Can we bring the focus on that instead of treating these things like sporting matches?
13
If Trump tried to legalize slavery there are four justices on the Supreme Court who would uphold him. Those four justices are emissaries of the Republican National Committee.
20
@Bob it is true that the Libs believe in slavery and taking away Express Constitutional rights. Thanks for pointing out the horrors of the Left!
1
With Russia as the backdrop, everything should be on the table. The way I see it, the world is becoming a very dangerous place, old norms are replaced by behaviours I’m unfamiliar with, and they then become acceptable.
To preserve the way of life we’ve come to know, warts and all, nothing should be kept off the table. Expose everything, let people decide if this is the western world we want.
24
It is likely this request for documents will wind up in the Supreme Court. It is also likely that one reason President Trump appointed Justice Kavanaugh is his defense of executive power. Justice Kavanaugh is on the record saying that a sitting President can't be indicted, so it's little stretch to assume that he would defend executive privilege in the instance of this document request.
20
This same issue arose during the Obama administration. In connection with Fast and Furious, Eric Holder was subpoenaed by a Congressional committee. When he refused to comply, he was held in contempt. The contempt order was subsequently overturned but the subpoena was upheld. The mired result will surely be cited by any court taking this issue on.
4
Thank you professor Shaw for exposing a difficult side of the law which, even for a seasoned lawyer like me, difficult to comprehend. And thank you for bringing the political perspective into this, something that is always lurking in the background. Some of us were too young during the sunset to the Nixon administration to fully comprehend what was happening back then and how it all developed and the politics behind the SCOTUS decision back then.
6
This president is corrosive to our democracy. A president is suppose to represent all the people...yet we see Mr Trump time and time again speak only to his base. The people of this country will ultimately decide the fate of Trump. Let the investigations proceed without interference from the White House. Sadly this is not happening and so it will become necessary to issue many subpoenas some of which will find there way to the supreme court for review. This country is in trouble.
30
As with any armed conflict, the one who fights hardest wins. If Congress wimps out, Trump wins. If Congress fights hardest, Congress wins.
And the SCOTUS? How many divisions does the Supreme Court have?
5
@Juniper
Quoting the bigoted, violent President Andrew Jackson during his dark crisis of morals is another false analogy and false equivalence used by the alt-right to justify entitling a criminal PINO destroy our Constitution.
1
@Juniper
When it gets to an armed conflict, he lost the popular vote.
1
@alan
He never had the ‘popular’ vote. All he needs are the “Fifth Avenue Loyalists”, and make sure that the person he shoots on Fifth is of the right demographic.
1
As near as I can tell, the forms are government forms, my reading of the constitution says Congress is the representative of the people’s government. So the forms belong to them to study.
27
@John impressive that you “read” the Constitution but maybe reread the article (paragraph 5)......”the Constitution mentions neither congressional oversight”.
No surprise that the petulant, impulsive trump continues to thwart political norms and drive his trademark wedge even deeper into a fractured nation. (What’s he hiding anyway?)
Likewise, it should be no surprise to his increasingly shrinking and paranoid inner circle that such adamant refusal is fertile soil for leaks and anonymous, but substantive tips.
The truth will out,
Eventually, it always does.
70
Ms. Shaw's op-ed is carefully and thoughtfully constructed, but it has little to do with the actual facts on the ground. The House is engaged in a 'fishing expedition' - they are searching for any grounds to impeach the President. It is an investigation looking for a crime, any impeachable crime, and under such circumstances, it is a flagrant effort to overturn the results of the 2016 Presidential election. That's why subpoenas are being issued for every possible document, toward 81 different people, and counting (not done yet). The resemblance to McCarthyism is not accidental. No judge, presiding over routine civil litigation, would countenance or permit such discovery tactics. Congress really does have substantial powers over Article I of the Constitution, but no legal relationship can exist without fundamental due process protections. If the House wishes to investigate, they ought to be required to set forth a Bill of Particulars, and justify such Bill in a courtroom by more than a mere 'scintilla of evidence.' Even an initial complaint in civil litigation cannot be a mere collection of bad adjectives, suspicions, and resentments.
4
@Tom Wolpert
If it's a fishing expedition, it's fishing in barrel. Just from what's in the public record I can name six felonies directly attributable to Trump, some with multiple counts.
It's clear that high level Trump campaign officials illegally worked with the Russians during the election( see:Manafort) and as of now we know of over 100 communications and 28 meetings between Russian intelligence and members of Trump's campaign staff.. It's only a question of what Trump knew, when did he know it, and can it be proven.
It's also clear that the Trump Foundation and the Trump organization have committed countless financial crimes.
146
@Tom Wolpert. That's a big assumption. There are a sufficient number of breadcrumb trails which require further investigation. Especially as the Special Counsel's report may not be made public. But to declare that the enquiries are directed towards impeaching the President is presumptuous. Our Senators are supposed to be law-makers. The GOP failed to follow the trail of breadcrumbs for two years and, in fact, tried to kick them under the rug.
it's time the American people are told the truth.
51
@Tom Wolpert
An "investigation looking for a crime" is both reasonable and proper. If a crime has certainly been committed, i.e., if there is unassailable evidence of a crime, then no investigation is necessary; prosecution (or impeachment) is the next step. On the other hand, if a crime has only possibly been committed, i.e., if the evidence is suggestive but ambiguous, then an investigation is exactly what's called for.
43
At least part of the reason these issues have not been resolved in the courts is that there's a practical separation of powers issue. Failure to comply with a Congressional subpoena may result in a contempt of Congress resolution and then a referral to the US Attorney for DC for action / prosecution. But the US Attorney is an Executive Branch officer who serves at the will of the President. And Congress cannot force a separate and equal branch of the federal government to do anything.
1
In Nixon, SCOTUS ruled in favor of the Judicial branch over the claims of privilege by the Executive branch. I am curious why Professor Shaw thinks the Court could side with the White House in a similar contest with Congress? Is the Judiciary more “co-equal” than the Legislative?
8
@Alan McCall
A criminal subpoena is issued to help solve a crime. A Congressional subpoena is issued as part of Congressional fact finding. Courts are likely to give more weight to criminal subpoenas because more is usually at stake.
7
@michjas
That may be true originally but this battle is for the very survival of the nation as a democracy. I'd say a lot is at stake here.
Members of Congress need to make it clear that any members of the judiciary, including Supreme Court justices, who collude with this Administration to obstruct justice will be subject to impeachment. It's unfortunate, but we've reached a point where Congress must enforce the rule of law if Trump's appointees and allies do not.
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The only winner we need here is something Trump seems to have an aversion to. The rule of law.
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"A give-and-take between the two political branches of government usually results in congressional requests being narrowed but ultimately complied with."
This seems almost quaint in the Age of Donald Trump. As Ms. Shaw observes, these are not normal times; there likely will be no "give and take" with this president at the helm.
Donald Trump is not only the most corrupt president in modern times, he's also the most secretive. I have little doubt there's been no compliance with the Government Records Act, or other normal record-keeping. When and if they build a "Trump Presidential Library," it's likely to be pretty empty except for audios of his speeches.
Clearly the president has brought his Trump Tower practices to Washington. Thus Congressional oversight committees must pick their battles carefully. And therein lies the rub, because frankly, there is so much we, the public, want to know--all those black holes between him and Vladimir Putin top the list.
How will this all work out given the intransigence of this administration? I fear it will further tear this frayed nation apart.
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If you'll allow me, i'll tell you how it will turn out. There are four parties here...Trump and his supporters, congress on the Left, the leftist media, and the consumers of the leftist media. When consumers of the leftist media start to realize they've been sold a bill of goods by parties 2 and 3, some will be disillusioned with both, others will double down after 2020 to start all over again.
One of the American values that is most at risk today is the rule of law.
If the judges Trump has been appointing are, in reality, tools of the autocrat trade, we will soon be as Russia is, a pretend democracy with a pretend rule of law.
Putin's word is the law in Russia. If indeed, Trump's far right judges he, and the Republicans, have been appointing with great alacrity, see themselves as employees of the Trump Corporation, then sure, we are on a downward slide to a corrupt legal system.
Imagine a thousand Clarence Thomas clones sitting around ruling on Trump's every whim, and against every request of Congress...
Hugh Massengill, Eugene Oregon
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This is a matter of both law and politics, both in the highest sense of those terms. If we are to be governed by laws, then they not only need to be obeyed but supported as common sense rules to conduct our public affairs. In our system, laws are created through political processes to represent the power of our ultimate authority—the people.
Executive privilege is meant to provide a context for the free flow of ideas to a president, not to hide criminality. Its unqualified assertion in the face of Congressional oversight denies the people the right to understand the actions of our leaders.
If Trump is successful in his blanket denial of Congressional oversight, it may win him the time he needs to leave office unindicted and unimpeached. The reaction from the public, however, will likely be to destroy such privilege in the future.
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"When Executive Privilege and Congressional Oversight Collide, Who Wins?"
That's something we are all going to find out a lot about, very painfully.
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The Judiciary Committee is fully aware that Trump will use every opportunity to stonewall their investigation. Rep. Nadler has stated as much. After refusal from all or most of the 81 witnesses, the committee will issue subpoenas. When Trump asserts executive privilege they will go to court. Trump will undoubtedly try to force each case to the Supreme court where he hopes that his appointed savior, Kavanaugh, will have enough influence to rule in his favor. If nothing else, Trump will keep things tied up in court for as long as possible. This is completely in keeping with Trump's private business conduct. But, it will also keep things in the public eye. No one has delusions about where this will go. The only uncertainty is how this will end.
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@syfredrick So Rep. Nadler is going to have teh committee issue subpoenas for 81 alleged witnesses based on the testimony of convicted liar/disbarred lawyer Cohen? hahaha. Judge Pauley should have had Mr. Cohen walked away to his Club Med prison on the day of his sentencing hearing. Why the special treatment?? Imagine if, after conviction, Bernie Madoff was trotted around like a showpony talking about his crimes before going in to serve his time...
Something's shameful here, and it is not the legitimate choice of the American voters, who played by the rules and won the game fair and square. Be careful, please. And for the country's sake, let Mr. Mueller wrap up his growing "investigation" already. Nadler who?
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@Midway. The “legitimate”choice of the American voters in 2016 was Hillary Clinton — by 3 million votes. That is what a democratic vote showed. The votes of an Electoral College have always been a compromise made with smaller, less populated states which until recently did not have one party stripping the voter rolls to maximize political power. There is nothing “legitimate” about a winner who actually got the least votes.
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@Midway
What's shameful is that there were enough Americans who blindly followed a reality TV star and put the wannabe president in the Oval Office - and continue to support him despite being exposed to the criminal activity that made him the grifter he is.
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I believe that state and federal investigations will prove Donald J. Trump had no business ever running for President.
The RNC failed to properly vet Trump before nominating him as the standard-bearer of their party. Why?
The Republican majorities in both bodies of Congress refused to perform their oversight responsibilities during the first two years of the Trump administration. Why?
Is it significant that Trump may have misrepresented his
intellectual prowess, his wealth, and the tangled web of his international business dealings? You betcha. Let the investigations continue.
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@Sunny
Gee. I wonder who YOU voted for in 2016.
Point one, the RNC did everything it could to give the nomination to anybody but Trump. Voters in the primaries went for Trump, much to the dismay of the Republican Establishment.
Whatever his failures of truthfulness or morality, President Trump has worked hard to fulfill his campaign promises. He has a 90%+ approval rating with Republicans.
Before you ask, I voted for Bernie in the primary (against Hillary, actually) and Gary Johnson in the general. I will be voting for Trump in 2020 if he is on the ballot.
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@danny70000
If you voted for a far right libertarian, then you voted for a cult member. No difference between that and voting for Trump.
I just wrote another comment regarding confirmation bias. You may remember the far Right vilifying Secretary Clinton for talking about "implicit bias," which they variously referred to as Leftist, socialist, or liberal propaganda.
Actually, "implicit bias" is a very mainstream, scientifically sound concept central to much of cognitive science research. The findings have been replicated for nearly 50 years. And everybody exhibits implicit bias in virtually every moment of their live.
Look at Socrates' or Gemli's or Rima Regas' comments. Look at any of my comments. Look at vulcanalex, or AACNY. Heck, look at Mr's Douthat, Brooks, Kristof, Krugman, or Ms.' Goldberg, or even Haberman (yes, in the news as well as the op-eds).
The thing is not to try to get rid of this bias - it's nearly (not altogether) impossible.
But to acknowledge it (much as Secretary Clinton did). Then we would have an entirely different journalism, opinion writing, and comments - in fact, a different world.
Recognize our biases (as any good judge should do), do all you can to find people and reputable sources with different views from you, and think and speak and act accordingly.
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@danny70000
"Whatever his failures of truthfulness or morality...." Gosh, that's not how I'd want to refer to my choice for elected office, much less any activity. Oh well, "whatever."
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Neither Congress nor the Executive have an absolute right to either of their positions.
The American people need Congress to pass laws to limit the span of executive orders.
The American people need Congress to govern which it adamantly refuses to do in instances of international strife.
The American people need a functioning government that works on their behalf in a secular and rational manner under the rule of law.
We have none of that. We have politicians and political parties who avoid accountability. Boss Tweed would know each and everyone of them.
The American people need the Supreme Court to resolve the matter; let the political chips fall where they may.
These matters transcend politics. Their resolution is necessary to reaffirm who we are and how we choose to be governed.
At least until some executive sitting in the White House in collusion with some Congressional politicians to apply the powers of the United States to ensure his or her continued rule over the country. Call it a permanent majority as one of our political operatives once did.
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The Constitution gives the House of Representatives the power to impeach for high crimes and misdemeanors. That power would be useless without the power to investigate. Executive privilege, which has far less constitutional backing should not prevent the House from proceeding with its investigations.
This may become a test of how far conservative jurists will back their party rather than the Constitution. A lot more than the POTUS is at stake.
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@Arthur
The conservative jurists will always back their party, and their guy no matter what. The sheer volume of crimes, criminals and current indictments mean nothing at all to them. Everything we have in this Nation has been up for grabs to be stolen by the gop. Now it is done right to our faces in broad daylight, time and time again. They are too lazy now to actually try to attempt to pretend that it is anything else, and then say what are you going to do about it? What indeed.
The Supreme Court (as stolen) will be a faithful abetter of all this and more, this is what the whole point of toxic republicanism has been since Reagan. Besides destroying education, especially civics knowledge, the absurd voting suppression and voting machine outrage is their greatest achievement. Very difficult to get this crime syndicate out of office for good. Ask Stacey Abrams.
Investigations are way overdue, however my feeling is that again, the gop and their installed grifter will get away with everything. That is what they do, that is all they do.
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@Arthur - Leon Jaworski wrote a book called "The Right and the Power." In it, he explained how, as Special Counsel, his office went about its investigatory process.
At the point where their subpoenas got stonewalled, and they ended up in the US Supreme Court, the Court's July 24, 1974 ruling stated his office had "the Right and the Power" to obtain what they were after, Executive Privilege notwithstanding.
The concern, now, if whether the US Supreme Court will adhere to that longstanding precedent.
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@Stephen Csiszar "The conservative jurists will always back their party, and their guy no matter what. The sheer volume of crimes, criminals and current indictments mean nothing at all to them." Actually, it is the sheer volume of crimes, criminals and current indictments that mean everything to them. They don't want their house of cards to collapse.
3
there is nothing Trump has done that explicitly warrants this fishing expedition. We can hope hope hope all day long, but dems da facts, unfortunately.
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You don’t see much smoke pouring out of this White House? There has NEVER been this number of convictions, indictments and confessions in ANY prior administration. And these were all people Trump appointed or hired. Does this not provide some compelling evidence that all is not right? Does Cohen’s testimony not indicate the depth and length of this criminal depravity?
What would it take for you to concede that there is compelling evidence of fire?
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@Joe Yoh. Ummm... the point of a investigating is to find out what he has done, eh?
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@Dsmith
I think rational people who read centrist/factual news don't realize the extent to which, if you start by accepting the kind of framework that Joe Yoh appears to accept, it is actually rational to extrapolate the kinds of conclusions he puts forth.
To put it another way, support the framework you accept from the "alternative facts' media (to paraphrase Kelly Anne Conway) tells you that "liberals only want power, to enrich themselves and enslave minorities in order to stay in power," and "conservatives value freedom, respect religion and traditional values.'
Now add to that reading or watching daily analyses that, among other things, tell you that the numbers were cooked for President Obama's economic achievements and only now do we have the true numbers.
Then Joe's conclusions, as utterly bizarre as they may seem to you and me, make perfect sense.
Add to that confirmation bias - that is, once you accept a particular framework (particularly if it has a strong emotional salience for you) it becomes almost impossible to even consider facts which conflict with it.
Here's an example. D Smith, you seem like an intelligent person. Look at the April, 2018 issue of the APA journal, where you'll find irrefutable evidence for various parapsychological phenomena. My guess is that you and most liberal NY Times readers will either not bother or will read it and ignore the facts.
True, it's MUCH worse on the far right. But we all do it.
www.remember-to-breathe.org
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