The madness of King Donald (and his lawyers)

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Josh Marshall succinctly frames the Trump lawyers’ argument:

I want to point out the common argument the President’s personal lawyers (yesterday) and the White House Counsel’s office (in today’s letter) are now making. They argue that the Congress has no legitimate oversight role with respect to the executive branch at all, a stunning argument that would clip the wings of Congress permanently. They are arguing first that the only legitimate document requests or subpoenas are those tied specifically and narrowly to shaping upcoming legislation. That’s an aspect of oversight but only a smallish part of it. Secondly, anything that is tied to wrongdoing or malfeasance or possibly crimes is “law enforcement”, which is the exclusive purview of the executive branch. In other words, from both sides of the equation, they argue that Congress has no oversight role at all.

Federal Rules of Civil Procedure, Rule 11(b) requires an attorney to certify that to the best of his or her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Trump’s lawyers should be facing sanctions under Rule 11(c) for violating Rule 11(b). It is “black letter law” that Congress has the right to investigate the president.

Former Deputy Assistant Attorney General in the Department of Justice’s Office of Legal Counsel Marty Lederman explains, Can Congress Investigate Whether the President Has Complied with the Law?

Attention, first-year ConLaw students who haven’t yet taken your final exams!  You might want to consider how you’d answer that question.

No, really.  You’re no doubt wondering:  Is that a trick question?  Well, until today it would have been.  But now . . .

* * * *

The House Committee on Oversight and Reform recently asked Mazars USA LLP, one of Donald Trump’s accountants, to provide documents and information relating to the firm’s preparation, review, and auditing of financial statements for Trump and his business entities.  Mazars told the Committee that it couldn’t voluntarily provide the requested documents without a subpoena, and so on April 15th the Committee issued a subpoena to Mazars for the documents.

Trump sued Mazars and the Committee Chairman (who was soon replaced as a defendant by the Committee itself), seeking to enjoin the Committee from enforcing its subpoena to Mazars.

This case doesn’t raise any issues of executive privilege or immunity from legislative process.  Trump’s claim is entirely predicated, instead, on the argument that Congress lacks any legitimate investigative authority that could justify trying to obtain Trump’s financial records from Mazars.

A couple of hours ago I attended a hearing that Judge Amit Mehta held on the merits of Trump v. House Committee on Oversight and Reform, No. 19-1136 (D.D.C.).  Judge Mehta began his questioning of Trump’s lawyer, Will Consovoy, in precisely the right place:  He asked, one by one, whether Congress has the power to inquire into any or all of the four specific topics identified by Chairman Elijah Cummings in his memorandum to the Committee a month ago, explaining the basis for the request to Mazars.  Cummings wrote that:

The Committee has full authority [1] to investigate whether the President may have engaged in illegal conduct before and during his tenure in office, [2] to determine whether he has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions, [3] to assess whether he is complying with the Emoluments Clauses of the Constitution, and [4] to review whether he has accurately reported his finances to the Office of Government Ethics and other federal entities.  The committee’s interest in these matters informs its review of multiple laws and legislative proposals under our jurisdiction, and to suggest otherwise is both inaccurate and contrary to the core mission of the committee to serve as an independent check on the Executive Branch.

Judge Mehta started from the end of this litany:  Does Congress have authority to inquire into whether a president “has accurately reported his finances to the Office of Government Ethics?,” he asked.

No, said Consovoy.

What about to assess whether the President is violating the Emoluments Clauses of the Constitution?  After all, Judge Mehta noted, Article I, section 9 specifically provides that an officer can’t accept any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State, “without the Consent of the Congress.”

No go, said Consovoy, Congress can’t inquire into the President’s possible acceptance of any foreign emoluments, either.

OK, but what about trying to determine whether Trump has undisclosed conflicts of interest that may impair his ability to be impartial in the conduct of his office?

Same answer.

(At this point the die was cast:  Judge Mehta didn’t get around to asking specifically about Congress’s authority to investigate whether the President may have “engaged in illegal conduct before and during his tenure in office,” because it wasn’t hard to guess what Consovoy’s response would have been.  Indeed, according to my notes Consovoy did say at one point that Congress lacks any power to assess whether the President is violating the law!)

When it was his turn to argue, Counsel for the House Doug Letter explained why Chairman Cummings was right that “[t]he committee’s interest in these matters informs its review of multiple laws and legislative proposals under our jurisdiction”–which ought to be enough, in and of itself, to justify the subpoena.

But even apart from such “legislative” functions, Judge Mehta wondered, what about Congress’s “informing function”–the power of Congress, which the Supreme Court has recognized, “to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government”?   Watkins v. United States, 354 U.S. 178, 200 n.33 (1957).  After all, as the Court noted in Watkins, id., “[f]rom the earliest times in its history, the Congress has assiduously performed an ‘informing function’ of this nature.”

Consovoy conceded, as he had to in light of Watkins, that Congress has the power to inquire into and publicize corruption, maladministration or inefficiency in agencies–which are, Consovoy explained, entities created by Congress itself.  However, Consovoy hastened to add, Congress does not enjoy a similar power to inquire into and publicize corruption, maladministration or inefficiency by the President.

Wait . . . WHAT?  Congress lacks authority to investigate and publicize possible wrongdoing–corruption or maladministration–by the President?  Did I hear that right?  But cf. Nixon v. Administrator of General Services, 433 U.S, 425, 452-53 (1977) (explaining that Congress enacted a law requiring preservation of a president‘s records and tapes in order to, inter alia, secure “the American people’s ability to reconstruct and come to terms with their history”).

Apparently I did, because Judge Mehta, too, was incredulous.  He asked Consovoy the obvious follow-up question:  Does this mean that Congress’s investigations into Watergate and Whitewater [and, I might add, Iran/Contra; etc.] were unconstitutional?   Consovoy responded (if my notes are correct) that that would depend upon the basis for those investigations.  It was “straightforward,” said Judge Mehta:  Congress was inquiring into possible violations of the law by the President.  In that case, Consovoy said, then yes, perhaps Congress did overstep its authority.  [That’s my recollection of the substance of Consovoy’s responses–not direct quotations.  If anyone who attended has a different account, please let me know.  Of course when the transcript becomes available I’ll insert direct quotations.]

“Bold,” “radical” and “unprecedented” don’t begin to describe this line of argument.  I’m not sure what does.  Flabbergasting, I suppose.

This “bold,” “radical” and “unprecedented” legal argument was doubled-down on by White House Counsel Pat Cipollone’s letter to House Judiciary Committee Chairman Jerrold Nadler (.pdf) in which counsel makes the following baseless argument and requests that the Judiciary Committee end its investigation:

[T]he Committee has not articulated any proper legislative purpose for pursuing inquiries that duplicate matters that were the subject of the Special Counsel’s inquiry. Congressional investigations are intended to obtain information to aid in evaluating potential legislation, not to harass political opponents or to pursue an unauthorized “do-over” of exhaustive law enforcement investigations conducted by the Department of Justice.

The Washington Post reports, No ‘do-over’ on Mueller probe, White House lawyer tells House panel, saying demands for records, staff testimony will be refused:

The White House’s top lawyer told the House Judiciary Committee chairman Wednesday that Congress has no right to a “do-over” of the special counsel’s investigation of President Trump and refused a broad demand for records and testimony from dozens of current and former White House staffers.

White House counsel Pat Cipollone’s letter to Chairman Jerrold Nadler (D-N.Y.) constitutes a sweeping rejection — not just of Nadler’s request for White House records but of Congress’s standing to investigate Trump for possible obstruction of justice. In his letter, Cipollone repeated a claim the White House and Trump’s business have begun making — that Congress is not a law enforcement body and does not have a legitimate purpose to investigate the questions it is pursuing.

Cipollone said the release of special counsel Robert S. Mueller III’s report now makes Congress’s questions moot. He stressed that the probe was “exhaustive” — the product of 2,800 subpoenas, 500 executed search warrants and 500 witness interviews — and that the president supported the report’s full release “in the interest of transparency.”

“The appropriate course is for the Committee to discontinue the inquiry,” he wrote. “Unfortunately, it appears that you have already decided to press ahead with a duplicative investigation, including by issuing subpoenas, to replow the same ground the Special Counsel has already covered.”

* * *

In an interview, Nadler called the White House argument “preposterous.”

“The White House is making the outrageous claim that a president cannot be held accountable in any way to the American people,” he said, adding: “This is ridiculous, it would make the president above the law, and of course we totally reject it. We will subpoena whoever we have to subpoena.”

* * *

Joshua Geltzer, a former Justice Department official who now heads a constitutional advocacy group, said the White House’s assertion that Congress does not have a right to the information a “mind-blowing” claim.

“These aren’t peripheral interests of the U.S. Congress,” he said. “They’re core oversight responsibilities — at the heart of our legislative branch checking our executive branch and even just understanding it.”

Just as a reminder, Article 3 of the Articles of Impeachment against Richard Nixon was specifically for:

violation of his constitutional duty to take care that the laws be faithfully executed, has failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives on April 11, 1974, May 15, 1974, May 30, 1974, and June 24, 1974, and willfully disobeyed such subpoenas. The subpoenaed papers and things were deemed necessary by the Committee in order to resolve by direct evidence fundamental, factual questions relating to Presidential direction, knowledge or approval of actions demonstrated by other evidence to be substantial grounds for impeachment of the President. In refusing to produce these papers and things Richard M. Nixon, substituting his judgment as to what materials were necessary for the inquiry, interposed the powers of the Presidency against the the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.”

Do you know who else is propagating the Trump lawyers’ bullshit claim that “Congress is not a law enforcement body and does not have a legitimate purpose to investigate the questions it is pursuing”?

Pseudo-intellectual and resident GOP apologist at the Arizona Republic, Robert Robb, in an over-the-top propaganda piece today. Note to House Democrats subpoenaing Trump: You’re not law enforcement, and his alternate caption “Trump subpoenas are a constitutional clown act.”

No sir, you are the clown. You attempt to normalize Trump’s outrageous behavior which violates the Constitution and our laws, our political norms, and undermines American institutions such as the Department of Justice in his pursuit of authoritarian despotism. As a GOP apologist, you would excuse any behavior, including Trump “shooting someone on Fifth Avenue” — you will say that his victim deserved it. The personality cult of Trumpism is the new American Fascism, and you are its willing propagandist.

This is the result of the conservative movement’s decades-long embrace of Friendly Fascism: The New Face of Power in America that professor Bertram Gross presciently warned us of in 1980.

Fascism doesn’t descend on a nation overnight. A nation has to be prepared for it first. Doctor Steven Jonas correctly noted in his 2015 essay, Fascism in the 21st Century:

When we are looking at 21st century fascism, in the context of what is happening in certain of the capitalist states, at the present particularly in the United States, it should be noted that it is entirely possible that wholesale violence will not be required for its introduction.  Nor will a maximum leader necessarily be required.  Like the fog in the famous, ultra-short poem by the U.S. person Carl Sandburg, it may well come in “on little cat feet.”

Robert Robb is preparing the way for Trump tyranny by attempting to normalize his outrageous behavior.

The Arizona Republic should rid itself of this rank embarrassment.

UPDATE: I got a troll comment complaining about the word “shyster” in the original caption. Geezus, do you have any idea how many times I have heard lawyers referred to with the pejorative “shyster” over the years? Nevertheless, I have changed the caption to avoid this kind of trolling to distract from the purpose of the post.