Executive Privilege

This was released Monday (May 19, 2019) from The Hill:

A district judge on Monday upheld a subpoena issued by the House Oversight and Reform Committee for President Trump’s financial records, dealing a blow to White House efforts to resist the Democrats’ investigations. In a 41-page opinion, Judge Amit Mehta, an Obama appointee, found that the panel, under the leadership of Chairman Elijah Cummings (D-Md.), had valid reasons for requesting the president’s financial records from the accounting firm Mazars, even though they predated his entering office.

“These are factually valid legislative purposes, and it is not for the court to question whether the Committee’s actions are truly motivated by political considerations,” Mehta wrote.

The judge was skeptical of the arguments brought forward by the president’s attorneys both in court last week and in his opinion issued Monday. Trump’s attorneys had argued that the subpoena, issued by Cummings earlier this year, was unconstitutional because it wasn’t tied to legislation. But attorneys for the House said that the records will help strengthen ethics and disclosure laws and see if Trump is in compliance with the Emoluments Clause of the Constitution.

Let’s get this straight: the basis for this judge’s ruling was reasonable because the committee’s request for Trump’s financial records was “to see if Trump is in compliance with the Emoluments Clause of the Constitution.”

Americans should be horrified!

Judge Mehta in his ruling forgot one thing — a very fundamental thing — that is a thread of the very fiber of the Constitution: “Probable Cause.” In his 41-page opinion, Federal District Judge Mehta asserted that Congress has the right to investigate potential illegal behavior by a president, including actions both before and after the president assumed office. Seriously?!? Americans are to accept this amazing finding by a federal judge as a “legal and Constitutionally based opinion?” I think not!

Most Americans when discovering Congressman Elijah Cumming’s subpoena for the President’s financial records for a period before he became President and for the period of time he has been office will shake their heads in disbelief. This committee’s action further fans the flames of those who look own in amazement at what Congress is doing to “get” Donald Trump in the wake of the Mueller Report. (In our Summary below we’ll unpack what Congress is really up to)

President Trump’s team is fighting this action based on Executive Privilege. What is it?

Executive Privilege

In the landmark case of United States v. Nixon, the Supreme Court ruled that it had authority to resolve the conflict between President Richard Nixon and Special Prosecutor Archibald Cox, who had been appointed to investigate the Watergate affair, over the issue of executive privilege. Cox had obtained a grand jury subpoena requiring Nixon to deliver to the district court tape recordings of various meetings with assistants. The Supreme Court acknowledged, for the first time, that an executive privilege exists under the Constitution, but it qualified the scope of the privilege by subjecting it to a balancing of the opposing interests and legitimate needs of the executive and judicial branches. Courts have applied this general approach in the context of enforcement of congressional subpoenas as well, but there haven’t been very many such decisions—and the ones that do exist are drawn to the particular facts of the cases at hand. In addition, as articulated in United States v. AT&T, courts will only decide such a case if the executive and legislative branches have tried, in good faith, but failed to reach an accommodation. (“in good faith” is the principle in this argument that, in my opinion, is NOT occurring)

So while it is settled that the federal courts have jurisdiction to resolve a conflict over a claim of executive privilege in the context of enforcement of a congressional subpoena, there isn’t much actual case law to suggest exactly how assertions of executive privilege by the president may ultimately be decided by a court. In addition, the good-faith accommodation requirement typically has the effect of lengthening the amount of time it takes for civil enforcement action by Congress to confirm its subpoena power, and in many instances may prevent the practical usefulness of a court decision in a given controversy.

Dealing with White House executive privilege has always created issues: and always have been political in nature.

The most recent example is President Obama’s assertion of executive privilege regarding “Operation Fast and Furious”—a federal gun-running investigation and operation gone wrong. On March 31, 2011, the House Committee on Oversight and Government Reform, then chaired by Republican Rep. Darrell Issa, issued a subpoena to the Department of Justice’s Bureau of Alcohol, Tobacco, and Firearms. The Justice Department responded in writing to the committee a few months later. After more back-and-forth, on Oct. 12, the committee issued a second subpoena to the department for communications from several top officials, including Attorney General Eric Holder, relating to the operation. The subpoena covered communications from Holder’s chief of staff and the head of the department’s criminal division. It also requested information regarding relevant departmental communications with the White House and details about the death of a U.S. Border Patrol agent that spurred investigation of the operation.

In June of 2012, President Obama invoked executive privilege to deny the committee access to certain documents responsive to the subpoena on the basis that complying “would raise substantial separation of powers concerns and potentially create an imbalance in the relationship” between Congress and the White House. The House voted on June 28, 2012, to hold Holder in contempt—the first such action against a sitting Cabinet official. The committee then brought a complaint in the U.S. District Court for the District of Columbia to force disclosure of the documents at issue. The court case was repeatedly delayed by procedural issues and unsuccessful efforts to broker a settlement.

It wasn’t until January of 2016—a full three and a half years later—that a federal judge rejected Obama’s assertion of executive privilege to deny Congress access to the records on the grounds that “under the unique and limited circumstances of this case, … the qualified privilege must yield, given the executive’s acknowledgment of the legitimacy of the investigation, and the fact that the Department itself has already publicly revealed the sum and substance of the very material it is now seeking to withhold.” The court also found that “records reflecting the agency’s internal deliberations over how to respond to Congressional and media inquiries fall under the protection of the deliberative process privilege.” Finally, the court “encourage[d] the parties to start with a fresh slate and resolve the few remaining issues with flexibility and respect.”

Knowing what we know now and this exhaustive confrontational relationship between the White House and the Democrat-controlled House, peaceful resolution of this conflict does not seem inevitable. What will happen?

The criminal contempt statute permits Congress to certify a contempt citation against the executive branch for the criminal prosecution of whoever is the principal of the subpoena. But Congress will have a practical problem using this approach if the president does not agree with the action. Administrations of both political parties have decided that U.S. attorneys are NOT required to refer congressional contempt charges to a grand jury or prosecute an executive branch official who carries out the president’s instruction to invoke the president’s claim of executive privilege before a committee.

That leaves Congress’s inherent contempt power, which means relying on the legislature’s own constitutional authority to detain and jail a person in contempt until the individual complies with congressional demands. What does that actually look like? It’s not very pretty—which is why the contempt process has not been used by either body since 1935 when a Herbert Hoover administration official was held briefly in the Willard Hotel. While there is no “Capitol Jail,” the Capitol Police do maintain a holding cell a few blocks away at the Capitol Police Department. At the current moment, the prospect of the House sending the sergeant-at-arms of the Capitol to arrest an administration official would likely not sit well with a public that does not favor physical confrontation in U.S. politics.

Summary

Let’s see: unemployment overall is at record lows; black, Hispanic, and female unemployment is at record lows; millions of taxpayers received a federal income tax reduction in 2018 that averaged just over $2000; federal government revenue last year far exceeded any previous year, in spite of those massive tax cuts; there are far more people at work today than ever before. And what is our government doing in the wake of these successes?

  • Congress refuses to pass comprehensive immigration reforms;
  • Congress refuses to finance measures to close our borders to illegal aliens;
  • Congress refuses to support and/or demand federal law enforcement agencies enforce laws that Congress passed;
  • Pushes for the legalization of 3rd-trimester abortions;
  • Pushes for two legislative measures that have NEVER worked anywhere on Earth but if made law will cost Americans MORE THAN THE ENTIRETY OF THE ANNUAL FEDERAL GOVERNMENT INCOME over the next 10 years;
  • Demanded that all stay away from Special Counsel Mueller to guarantee completion of his findings on Russia collusion with the Trump Campaign;
  • Demand now the rejection of the Mueller findings because they are “incomplete;”
  • Are burying members and agencies of this Administration with subpoenas, testimony, and records that are already in the treasure-trove of evidence voluntarily given to Mueller;
  • What else is our government doing? NOTHING!

What’s Really Going On?

What we are watching in D.C. in the House of Representatives is the equivalent of that North Carolina Tar Heel 4-corner stall in which the sole purpose is to bring the game to a screeching whoa: kill time to “run out the clock.” The clock that concerns them is the calendar until 2020’s elections. They are desperate with these parlor tricks masking the REAL reasons for these silly measures: praying that something will mysteriously pop up they can use to legitimately go after Mr. Trump.

Congressman Jerald Nadler (D-NY) is totally committed to destroying Donald Trump. And his commitment is running far ahead of all reason, legality, and any concerns for the citizens of the United States. On his watch the committee he chairs — the House Judiciary Committee — is instead of doing the business of the People, sending out demand after demand, subpoena after subpoena, daily threatening members of the Trump Administration with obstruction charges if they do not comply with his committee’s requests. This is all after exhaustive compliance with subpoenas for records and testimony by the Administration to Robert Mueller over 2 years and $30 million of taxpayer funds: a “Witch Hunt” in the President’s words. I suggest that Mr. Nadler and Democrat House members get after doing the work for which they were elected: Legislation. Find some ways to make America better. What they’re doing now is pure insanity: doing the same things over and over but expecting different results.

Democrats’ only hope is for some mysterious piece of evidence is uncovered that is so egregious that the U.S. cannot in any way reconcile a sitting U.S. president committing such a travesty that they can immediately impeach.

Wait: they can file articles of impeachment right now, can’t they? Absolutely! Nadler’s committee is the ONLY committee that can draft, approve, and then send to the floor of the House for consideration. If the President’s actions are so egregious and if there is real evidence that confirms any illegal actions as Congressmen Adam Schiff and Eric Swalwell still maintain they have, why don’t they just go ahead and file the impeachment articles? Honestly, as a law-abiding American, I think THEY are obstructing justice by NOT taking legal action because of the President’s wrongdoing of which they say they have evidence. Why don’t they take action? THERE’S NO THERE THERE!

So what is Congress doing that really matters? Congress is REALLY good at doing two things and only two: 1) assuring their spot in Congress through massive campaign contributions to give them an extreme inside track to re-election, and 2) Spending taxpayer money!

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