Separation of Powers

Wishing for a Constitutional Crisis

When politicians tell you we are in a constitutional crisis, you shouldn’t take it at face value.

|The Volokh Conspiracy |

I am currently finishing a book on the idea of constitutional crisis, the role it has played in recent American politics, and the ways in which it might be helpful in understanding the American constitutional experience. (I have written about the notion before; you can get a taste here and here.) As a result, I have mixed feelings about House Judiciary Committee Chairman Jerrold Nadler walking up to the assembled press corps and declaring, "We have talked for a long time about approaching a constitutional crisis. We are now in it. We are now in a constitutional crisis." On the one hand, I appreciate the cultural relevance. On the other hand, we are not now in a constitutional crisis.

As Nadler himself admits, "the phrase 'constitutional crisis' has been overused." And yet, and yet, he just can't help himself from reaching for it as well. The rhetoric of "constitutional crisis" is debased currency because it is used too often and in contexts that cannot possibly justify it. Nadler knows this, but he feels the same pull others have felt before him of insisting that this time is different, this time you should believe me, this time the sky really is falling.

He feels the need to elevate a relatively routine dispute over the scope of executive privilege into the last gasp of democracy. Only if the House gains access to the last few sentences under redaction in the Mueller report can America be spared the collapse of the republic and the ascension of a "monarchy." Only if Attorney General William Barr can be cross-examined by committee staff in a public hearing will we be able to avoid Donald Trump making "himself a king." Someone has been watching too much Game of Thrones.

Politicians have become incentivized to declare constitutional crises because it enhances their own importance as saviors and demonizes their opponents as illegitimate. The rhetoric of constitutional crisis attempts to short-circuit routine constitutional processes and justify extraordinary and extraconstitutional responses. Donald Trump has played this game as well. His closing pitch to the voters in the fall of 2016 emphasized the notion that they could not possibly vote for Hillary Clinton because doing so would cast us into a constitutional crisis. The "unprecedented and protracted constitutional crisis" he depicted for voters was the sad spectacle of a president struggling under criminal investigation and the threat of criminal indictment and impeachment. Only by electing Donald Trump could we avoid the horror of special counsel investigations and impeachment inquiries.

Special counsel investigations and impeachment inquiries are not a constitutional crisis. Assertions of executive privilege and stonewalling congressional investigators are not a constitutional crisis. This is how government officials are held accountable and how political disputes are played out in a fragmented constitutional system. As usual, Donald Trump is overplaying his hand, making assertions that cannot withstand scrutiny, and escalating the political rhetoric as he lashes out as his foes. If we took the president both seriously and literally, we might eventually get to a point of real crisis. But there is no reason to rush into things.

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157 responses to “Wishing for a Constitutional Crisis

  1. No reason to rush into things?!? Are you kidding me? There’$ million$ of rea$on$ to ru$h into thing$. Billion$ probably.

  2. “As usual, Donald Trump is overplaying his hand, making assertions that cannot withstand scrutiny, and escalating the political rhetoric as he lashes out as his foes”

    I would point out that this is not only usual for Donald Trump, it is usual for American Presidents. Oh, we have had Presidents who refrained, but they are the exceptions, not the rule.

    1. “Silent Cal” comes to mind.

      1. Don’t forget the first President Harrison.

  3. Prof. Whittington is right about one thing here (and Trump was wrong), had Hillary been elected there would *not* have been a constitutional crisis, because everything related to her and the previous administration would have been swept under the rug, and Republicans do a lousy job of holding people accountable for malfeasance.

    1. And the right never holds the left accountable for their bad faith. When we do something, we’re evil monsters, but when they do something, they’re “nice, but misguided” people.

      1. It will be interesting to see of Barr actually does hold people to account for lying to the FISA court, leaking classified stuff to the press to advance the fake collusion narrative, etc. etc. I don’t think it will happen unless he wins in 2020 myself, but perhaps it will come out just as the election gets into full swing and he can run against the corruption of the other party. That is cynical of me, of course, because the Justice Department is supposed to be above that sort of thing, but then again, Clinton and Lynch just discussed their grandkids when they met or that tarmac.

        Anyway, Hillary will never see the inside of a jail cell, that is for sure. If she did, you know that the next Dem president would exact retribution.

      2. The right sucks because they lash out at Hillary and the rest (for good reason in case of the email server, etc.) but won’t hold ANY of their own accountable. This is exhibit…I don’t know, AAAZJFH since Trump became president.

        Maybe actually follow through with your own people and people would take you seriously.

        1. You mean like the Senate did with Steve King?

          1. Armchair lawyers don’t know the difference between the Senate and House of Representatives?

  4. Donald Trump is overplaying his hand????? Did Donald Trump “spy” on political opponents? Did Donald Trump use political opposition research to perpetrate a collusion fraud? Who exactly is refusing to accept that the collusion bs is bs?

    1. I guess the “lock her up” stuff still works with the birther-Benghazi-Jesus-gays element of movement conservatism.

      Something to pass the time in the political wilderness, I suppose.

      1. Yeah, clever. rally exuberance (actually commentary on the grossly biased Hillary “investigation”) is really far worse than abuse of Gov’t police power to surveil and undermine political opponents.

  5. It wasn’t a constitutional crisis when Barack Obama sent billions of dollars to the health insurance companies without any appropriation of funds for such purpose by Congress, thus violating Article I, Section 9 of the Constitution. It wasn’t a constitutional crisis when Eric Holder refused to turn over documents on Fast and Furious to Congress, thus defying a Congressional subpoena, or when Holder’s own DOJ refused to prosecute him for contempt of congress. It wasn’t a constitutional crisis when Obama’s AG, Loretta Lynch, gave orders to the FBI that no charge against Hillary Clinton based on gross negligence in connection with her private email server would be investigated or charged, or when Obama’s DOJ refused to investigate Lois Lerner or top IRS officials for using the IRS to harass conservative nonprofit organizations. Yet Nadler thinks that William Barr, by complying with well-established law protecting the confidentiality of grand jury proceedings, has provoked a constitutional crisis? Not even close.

    1. The only traction I was able to ever get on liberals that Obama did some unconstitutional or illegal actions, was when a unanimous Supreme Court said that he did. For example, when he decided that the Executive Branch says when the Senate is in recess, not the Senate itself, so he made unconstitutional “recess” appointments when the Senate wasn’t really in recess. The Court came back and said, 9-0 that only the Senate decides when it is in recess, not you, Mr. President.

      When even the 4 living constitutionalists on the Court said it was unconstitutional, there wasn’t much they could come back with. I promise you, there are regular readers of this blog who have or will look at that list you made, and scoff at it.

    2. Picking out the wheat from the conspiracy-theory dross, the ACA monies, the lack of Congressional follow-through on their contempt finding…that’s all. All the rest is tin-foil city.

      But even those things that had a grain of truth to them, they were bad but those weren’t crises; they were Congressional nonfeasance. Bad for our Republic, but not a crisis.

      You know what makes this different, DjDD? It’s Congressional defiance. If Trump wins the ability to stonewall Congress on multiple fronts, there would never be effective oversight of a President ever again. What kind of incentives do you suppose that sets up for future Presidents?

      1. It was “Congressional nonfeasance” that was to blame for Obama stealing billions from the Treasury to pay off the health insurers? Why? Because Congress refused to make the appropriations that Obama wanted? Sarcastro, the level to which your idiocy reaches never fails to amaze me.

        1. When Congress didn’t make appropriations Obama wanted or legalize every semi-retarded Latin American peasant, they weren’t “doing their jobs,” so Obama had the right to “do their jobs” for them.

          1. they weren’t “doing their jobs,” so Obama had the right to “do their jobs” for them.

            Isn’t that pretty much exactly Trump’s claim on his wall emergency funding?

          2. You apparently may refer to “semi-retarded Latin American peasants,” but do not call them superstitious slack-jaws lest you get on the wrong side of the Volokh Conspiracy Board of Censorship. I’d like you to be able to stick around and provide unvarnished, real conservative thinking.

            1. The average Latin American Amerindian has an IQ of 80-90, which is barely above retarded by European standards.

        2. Always annoyed by the insults.

          Funny you’re angry I’m blaming Congress and not the President on those. There’s blame to go around both to Obama and even more so to Trump.
          But in the end when a President takes power from Congress, if Congress lets it happen Congress is very much to blame was well.

          And if Congress doesn’t let it happen but the President just says ‘screw you you’re not being fair’ that’s a direct challenge to the branches being co-equal. A challenge made easier by the years of Congressional shrinkage is still a crisis.

          1. Stop saying stupid partisan things and you will be insulted less.

            1. I recommend you focus on preparing to be replaced.

      2. So, there will be no effective oversite for a president *ever again* if Trump stonewalls Congress?

        [insert surprised Pikachu face]

        Can I get your stock market picks as well, if you can see the future that clearly. More likely what’s going on, rather than your possession of Eye of Agamotto and/or a close friendship with Dr. Strange, is that you’re way overblowing the current level of “stonewalling” coming from the Trump administration…just as the OP suggests.

        1. You’re going to try to pull the ‘you can’t see the future, though’ move? How can anyone really make any decisions, if ya think about it. Whoa man.
          This is an Internet message boards; we all predict things in good faith as we see ’em.

          Trump’s already set the precedent that his DoJ won’t do oversight on him, and that he’s immune from criminal action. If he can neuter Congress, explain to me how he’s not immune from oversight.

          1. Look, Holder, Obama’s self identified “wingman” did more damage to oversight than Trump has, at least thus far, and likely will. And not to mention the whole IRS debacle. And look how Congress bounced back to protecting it’s powers just that fast. If the party’s are at odds, then they will protect their institutional powers, if the party’s aren’t, then they will go along to get along. Oversight will be just fine.

            Anyway, I couldn’t resist giving you a taste of your own schtick.

            1. Telling switch to whattaboutism.

              1. Man, you just fall right back into type too. You need a mental vacation to an exotic location, maybe it will break you out of that rut your in.

                1. I asked what routs to oversight remain and you started yelling about Holder saying he was Trump’s wingman and then debunked IRS BS and just threw everything at the wall you could. And never answered the question other claiming the an opposite party Congress will restore it’s power when that is the exact situation we’re encountering right now.

                  And you seem to have ignored the difference between Congressional inaction and Presidential Congressional defiance.

                  1. Your starting point is to close to the finish line of your motivated reasoning.

                    Based on your comment up thread, you need to tell us why this time with Trump is different from any other time [such that oversight is dead forever]. This was just the original point of Whittington’s actually pretty good blog post, where he says this time is not different from any other time. Which, of course, is why I noted that last time, with Holder, it was actually worse than it is now.

                    1. To repeat myself for the third time, this time is not Congress allowing Presidential arrogation of legislative prerogatives when they should object; it’s the President claiming power over active Congressional objection.

                      If the executive wins this, the precedent is that they are the supreme branch and there is nothing Congress can do to check any executive action so long as there’s no impeachment supermajority in the Senate.

              2. In Sarcastro’s world, any counterfactual can be dismissed out of hand as not fair or whattaboutism.

                You want to talk about DoJ/Congressional oversight? How many special investigations did Obama call for his Executive Branch despite his Executive Branch being directly involved in said malfeasance?

                You really are a blind and ignorant sot.

                1. It’s not a counterfactual, it’s a refusal to answer my question by pivoting to old gripes about Obama and Clinton.

                  Like you just did.

                  his Executive Branch being directly involved in said malfeasance
                  Assumes facts not in evidence.

          2. “his DoJ won’t do oversight on him”

            JFC, DOJ is not an independent actor nor a 4th branch.
            It is subordinate to the President.

            Did Eric Holder or Janet Reno do “oversight” [whatever that means] on their presidents?

            1. JFC, read your history, Bob.

              1. What “oversight” did Holder do?

                I guess you mean Reno appointed Ken Starr but I doubt you applauded that “oversight” at the time. What did DOJ still under her control do?

                1. To me, of course, Obama didn’t have a scandal worthy of a DoJ investigation. Indeed, Congress was very enthusiastic about investigations and turned up nothing that plays beyond the Gateway Pundit fever swamps.

                  Presidents who have investigated themselves via their DoJ:
                  Nixon, obviously.
                  Carter.
                  Reagan.
                  Clinton.

                  1. Yeah, spying on political rivals. IRS attacking political rivals. Spending money not actually authorized to be spent.

                    All of those are just nothings.

                    Democrats refusing to read the fucking Mueller report that has a grand total of SEVEN LINES redacted that weren’t specifically grand jury testimony is, CLEARLY, the end of America.

                    1. Don’t forget about sending guns to the drug cartels in Mexico through the Fast and Furious program, or Obama lying about when he knew that his Secretary of State was using an unsecured private server for government emails, many of them classified (since the Obama White House directly received many of those emails with the clintonone server header on them for months before Obama admitted that he knew about it), or sending bales of cash to Iran without notice to Congress as required by Federal law, or failing to provide Congress with various side deals to the Iran Nuclear Agreement in connection with Congressional approval, or . . . (way too many others to list).

                  2. This comment is why you get insulted so much Sarcastro. You are as partisan as you are ignorant.

                    1. Yeah, Sarcastro labeled my assertion that Obama’s AG shut off any investigation or charging of Hillary based on a gross negligence standard as “tin foil city”, even though that is an entirely accurate characterization of Lisa Page’s own testimony to the Senate Judiciary Committee. Per Sarcastro, anything he doesn’t want to believe is crazy conspiracy theory, regardless of what the evidence might show.

                    2. Naw, y’all just call names because you are a-holes.

                      https://www.lawfareblog.com/independence-and-accountability-department-justice

                      “For those who believe in a unitary executive, DOJ/FBI independence is a constitutional solecism….
                      This is a nice theory. Sometimes (though not often) I wish that it were so. But the theory has been repudiated in law, and especially in practice, for a long time. There are far too many examples to cover, but here are a few relevant ones. ”

                      I leave the rest for to the fine VC commentariat to read.

                    3. DjDD, Comey was against prosecuting Hillary. And so has every Trump AG thus far, despite Trump himself’s entreaties. Your error is assuming partisan reasons just because you really want to lock her up.

                      It’s not that I think everything I don’t like is a conspiracy theory, it’s that you repeat so much fantastical partisan BS. You gonna bring up the Clinton body count next?

                    4. DjDiverDan : Yeah, Sarcastro labeled my assertion that Obama’s AG shut off any investigation or charging of Hillary based on a gross negligence standard as “tin foil city”

                      Well, because it is. It’s amazing how dim-witted and mindless all your “lock’er up” crap is. Since your average right-type is too vested in this fantasy to examine it clearly, I step in to help :

                      (1) Clinton’s use of private email for State Department business wasn’t illegal at the time, and probably isn’t illegal now. This isn’t surprising, since the same practice was rampant with both her predecessors. General Powell, I believe, used AOL.

                      (2) So Clinton is accused of sending classified messages via her unclassified system, but this charge is false of course. All messages Clinton thought classified were sent through secure channels; the correct charge is messages Clinton thought-handled as unclassified were later upgraded to classified after review. Obviously, General Powell and Secretary Rice were both “guilty” of the same “crime” in multiple instances – through their private email to boot.

                      (3) In fact, there’s even worse news for your pathetic right-wing fantasy : Excepting two or three instances, Clinton received all the emails in question from third parties. Suddenly the number of people who must be “locked up” expands beyond the dozens or hundreds under Powell or Rice, to include dozens or hundreds more under Clinton. In fact, I guarantee if you really plan to “lock’er up” and “lock’em up” re every man & woman who ever handled a message thinking it unclassified, then later had it upgraded to classified, then you better start building prisons in bulk. You’re gonna need those beds.

                      (4) But, you say, most of those people were using government systems; the people sending emails to Clinton were using State Department .gov accounts. Sorry, there is no security or legal distinction between Powell’s AOL account, Clinton’s server, or .gov email. They are all considered equally unsecured. The only distinction? AOL and the State Department system have both been hacked multiple times; there’s no hint Clinton’s system was.

                      (5) So hundreds of people would be thrown in prison from the era pre-Clinton, hundreds more from the time of Clinton, and untold thousands to come – all by your “lock’er up” standard. But of course no one not-named Clinton has faced trial for the “crime” she is accused of. Repeat : NO ONE.

                      (6) Look : We all know right-wing-world is mindlessly stupid. It has devolved to politics/governance as entertainment, which is how we ended-up with a reality TV buffoon as president. But “lock’er up” is extra, extra stupid…..

                  3. Of course he didn’t. Because you’re a partisan hack.

                    *Note: every president since I’ve been alive has had something to which there probably should have been investigations.

      3. “there would never be effective oversight of a President ever again”

        Oh noes. Maybe the Dems should not go on fishing expeditions to satisfy rabid Resistance fanatics then.

        The House [not Congress because the Senate is not involved] has no right to most of what they are demanding.

        1. Ipse dixit and question begging.

          But in the end you don’t really care about putting up good justification. Whatever you can get away with is good politics, eh?

          1. “Ipse dixit”

            Sure Mr. “there would never be effective oversight of a President ever again”.

            1. I supported my statement. You just said ‘The House has no right to most of what they are demanding.’

              1. “I supported my statement”

                With more more unproven statements.

                Ok, if you insist:

                1. Pre-2017 tax returns are not oversight of a President. He wasn’t president then. He was under no legal obligation to release during the campaign.
                2. The Mueller report has been supplied and no Democrat has even looked at the less redacted version. Grand jury info is secret unless an exception applies, none of which is applicable to the House.
                3. They are seeking pre-presidental financial records which has nothing to do with his acceptance of “emoluments” as president, the supposed legislative interest.
                4. They are seeking records from non-government family members. Pure harassment.

                Stick to narrow requests and they put themselves in better legal position. They might be able to use the first batch to get more later, it might show justification.

                But as you know, its just Resistance inspired BS so they ask for everything. So any loss of “oversight” authority is on them, not Trump.

                1. Now we’re getting somewhere.

                  1. Past acts of Presidents impact on current actions, especially in the financial realm.
                  2. I’m beginning to come around on this. But executive privilege is the wrong vehicle to bring up that objection, hence the contempt is still legitimate.
                  3. See #1
                  4. No one is seeking Tiffany’s records, only those who have an active role in his administration, campaign or business.

                  5. And what about keeping Mueller away? Or the general instruction to admin officials not testify before the House? That kind of blanket defiance calls for a Congressional slapdown our of structural republican principle.

                  But as you know, its just Resistance inspired BS so they ask for everything.
                  I don’t know that. I know you think I know that and am lying, but I think it looks a lot like Trump’s done some seriously shady stuff before and after taking office.

                  1. You are coming around on No. 2, Sarcastr0? At least two problems there:

                    First, the less redacted version will come with security strings designed to put any new disclosures permanently off limits for release to the public (and maybe for release to most member of Congress)—meaning the offer is a tactic to make sure certain now-redacted items can never be used in any political process—for instance in an impeachment, or, to build political support for an impeachment. That makes the “less redacted” offer a Trojan Horse.

                    Second, how does anyone know which redaction is the one (maybe) which contains the smoking gun that turns even Trump’s Senate supporters around? If there is a “less redacted” version, prepared under Barr’s supervision, why would anyone suppose that kind of information wouldn’t stay redacted?

                    Seems like the only thing that can happen with “less redacted” is that Trump’s side buys credibility among suckers, and gets to say to every subsequent request, “See, they never stop. We gave them what they wanted, and now they demand more. It ends here.” They might even get some traction in court, saying that.

                    Leave the Trojan Horse outside the walls.

                    1. My issue is procedural – I don’t see a Congressional oversight exception to the grand jury law, and the language would seem to include Congress as well.

                      Doesn’t matter though – Trump’s not even bothering with that statute; he’s just going to try to reclaim a waived privilege, like he’s hoping to get called on it.

                    2. “That makes the “less redacted” offer a Trojan Horse.”
                      The use of a SCIF to see material related to sources, methods and on-going investigations is routine.
                      That makes not being willing to look at this material in a controlled setting a show of bad faith.
                      There is only one way that Nadler is getting an unredacted report and that is by Court order which likely goes to SCOTUS eventually.

                    3. Don Nico, another way Nadler could get an unredacted report would be from Mueller, or from some member of his team, or from a leak from the Justice Department. Then Trump could go as a supplicant to the Court, and make the case that the Court ought to stop the House from using that material, while the House tells the Court to butt out, and continues with the exercise of its sole power of impeachment. See, lots of scenarios.

                    4. Sarcastro, do you think a Congressional oversight exception is the only kind of exception possible? Seems like in this instance what would be operative would be an impeachment exception. Presuming that is to be found in the Constitution’s delegation of the “sole power” of impeachment to the House, then of course a law of Congress can’t preempt it.

                    5. First, I don’t think this whole legitimate Congressional purpose applies at all to Congressional investigations. They are a political branch, and if they’re not seen as acting legitimately, the voters will address it. The only applicable limits would be Bill of Rights, not structural.

                      But since I find the right still has to make preposterous arguments even on a playing field they’ve chosen, I engage there.
                      Until there’s an official impeachment committee set up, I don’t see that being triggered.

                      But that is not to say that oversight is the only legitimate investigatory rout pre-impeachment.
                      Like asking for Trump’s IRS records. Congress created the IRS; Congress then passed a law regulating the IRS that orders them to hand over these records. Legitimate doesn’t enter into it.

              2. “We start with several basic premises on which there is general agreement. The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste. But, broad as is this power of inquiry, it is not unlimited. There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress. This was freely conceded by the Solicitor General in his argument of this case. Nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government. No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress. Investigations conducted solely for the personal aggrandizement of the investigators or to “punish” those investigated are indefensible.”

                From Chief Justice Earl Warren’s opinion for the Court in Watkins v. United States, 354 U.S. 178 (1957).

                1. You think the President is a private individual?

                2. The legislative process is by no means the only place the power of investigation is inherent. Impeachment is another, independent source of that inherent power. So a legal challenge based on the notion that Congress must display some legitimate legislative interest is nonsense.

                  Actually, all legal challenges to impeachment investigations are nonsense, because the Constitution says impeachment is a “sole” power of the House of Representatives. Does anyone suppose the Court could challenge the sole power of Congress to declare war?

              3. You didn’t support anything. You know other people can read your posts right?

                1. Check out my 12:15 pm post.

      4. “If Trump wins the ability to stonewall Congress on multiple fronts”

        What are the multiple fronts? One front is the tax return front, which, yeah, Trump is stonewalling them. I don’t have a strong opinion on it, primarily because I’ve never given a crap about any candidate’s tax return ever, so I don’t see it as a big deal.

        Trying to say that another front on which Trump is stonewalling is the Mueller report is not reasonable. The DOJ released the redacted version in a reasonable time, and they’ve made available to Congressional leadership of both parties a version in which only the grand jury material is redacted. The grand jury redactions are something less than 1% of the report. As it stands right now, that’s all Burr/the DOJ can do. I fail to see any stonewalling here.

        1. Barr’s testimony.
          Unredacted report (I can’t tell the law on this, but Trump’s invoking executive privileged is incorrect).
          Potentially Mueller’s testimony.
          Tax records.
          A blanket policy to fight all subpoenas.
          Kline (Security clearance guy)
          Suing on a financial papers subpoena to a private party

          1. I would point out the numbers given on Obama’s Executive stonewalling (208 days before Holder was even threatened with contempt, and 40 more days post thread to hold him in contempt as compared to 3 weeks for Barr who is literally following actual disclosure laws), but you’ll dismiss it like the partisan you always do.

            Privilege… again Obama invoking privilege on fast and furious documents to shield Holder. Congress has still never seen those documents. The exceptions to the grand jury law are pretty damn clear, yet seem to be to complicated for you to understand. There is no legal way Barr can release the report without violating law. Congress could change the law, but they haven’t yet. Likewise the current SP law leave the the disclosure decision to the AG, not to Congress, so that is another element of actual signed law going against the House.

            Now you’re adding “potential” stonewalling, how stupid can you get?

            Tax records are private records. The courts have consistently warned of the damage that would be done to the country for the Government to attempt to use the records for political reasons. The last case we had on this issue was the IRS issue under Obama, you know that thing you pretend wasn’t an issue at all.

            Trump has no blanket policy tof ight all subpoenas you idiot. This is why you get called names. You treat Trump’s bluster as policy. There is no official memo to fight every subpoena you ignorant partisan hack.

            The president is originator of all security decisions. He literally can not be in violation of classification handling or designations. Starting to wonder how educated you really are.

            I remember when you actually argued against 3rd party subpoenas prior to Trump for use in criminal discovery. My how you switch sides. Orin would be saddened by your turn.

            1. Negotiating with Congress isn’t stonewalling; you’re comparing apples and brick walls.

              Glad you’re an expert on the grand jury laws’ operation. Nice of you to turn my humility and concession to others more expert into an insult.

              Tax records are private records this is a meaningless statement.

              This is why you get called names. You treat Trump’s bluster as policy.
              Considering that Trump is indeed fighting every subpoena so far, maybe rethink your argument.

              The president is originator of all security decisions. He literally can not be in violation of classification handling or designations. Starting to wonder how educated you really are.
              So all your concerns about the impact of Hillary’s carelessness were fake; actual exposure doesn’t matter so long as the law is formally adhered to. Oh, and no oversight into that decision.

              Orin would be saddened by your turn
              Are you trying to speak for Orin Kerr to hurt my feelings? You really are a jerk to the core.

      5. Only you can think a 2.5 year investigation, where dozens of people talk with the investigators from the Trump White House is “stonewalling”.

        1. Do some googling about recent news stories. Definitely not only me.

          Also check out the list I made!

  6. Nadler, Schiff, Pelosi, Schumer, et.al.’s behavior over the past two and a half years is the Constitutional crisis, being a coup attempt against a duly elected President.
    We should arrest and hang them all for sedition, and our HEROIC AND NOBLE PRESIDENT DONALD J. TRUMP should be made President-for-Life, the 22nd Amendment notwithstanding.

    1. We should arrest and hang them all for sedition

      Maybe be a bit less kill-crazy and people might listen to you.

      our HEROIC AND NOBLE PRESIDENT DONALD J. TRUMP

      Oh…never mind, then.

      1. Chem is trolling.

        1. The first time, I thought so.

          But now, I’m not so sure. Trolls don’t usually come back to say they were being sincere. Though for sure some do.

          But he’s also well within normal cult of personality crazy behavior. Remember – just because he’s on your side and you think he’s acting crazy doesn’t mean he’s not legit!

          1. Without a specific indicator of an author’s intent, it is impossible on the internet to tell if someone is being serious or not. This is called Poe’s Law, and I point it out every time Chem posts this crap, when it thinks it is being clever.

            In the main body of Reason’s commentariat, Chem is a big lib, but has adopted this particular joke that I think it finds funny. I mean, some Trump fans are pretty rabid, but nobody was swooning over him and fainting and turning him into a demi-god except as an ironic Warhammer joke, unlike Obama before the shine started we wear off.

            1. I’m not trolling, I’m punching back against the literally unhinged venomous TDS openly displayed on a regular basis.
              Is TRUMP a very stable genius, noble and heroic? Moreso than his opponents, for certain. Do I worship him? No. Am I a liberal? No, I’m more a right-leaning centrist, but to those on the right of Attila the Hun I’m indistinguishable from Karl Marx.

      2. Maybe be a bit less kill-crazy and people might listen to you.

        Have you talked to Kathy Griffin about that?

    2. Sarcasm aside, this is why the FISA courts, Democrat/Fusion GPS/MI6/Russia connection, whoever brought this to the attention of the FBI, and the pee dossier need to be investigated. We need to be absolutely certain who asked for this propaganda report to be generated, who financed it, which spies and intelligence agencies were involved in supplying disinfo, how that info was passed on to relevant parties, how those parties supplied it to the FBI, who/how the FBI got MULTIPLE warrants for what is blatantly bullshit, who leaked this information, and what level of involvement and knowledge of information Obama/Hillary/govt officials had. When this many involved parties don’t exercise due diligence and Orange Man just happens to be at the center of it all, that’s extremely suspicious.

      It’s entirely possible that the Democrat party leadership conspired with a sitting US President and foreign intelligence agencies to use disinfo to spy on a candidate for the benefit of another candidate. Even if the intent was to create a burdensome distraction and not to spy on Trump specifically (it’s not like Clinton knew ahead of time what he was going to say, her arguments sucked and she lost for it), it’s still debateably treasonous to not only interfere with free elections, but to seek out foreign intelligence resources to do so. Depending on the outcome, worst case scenario, there very well could be treason charges filed against govt officials as high up as President Obama and we may need to ban the Democrat party due to them being a foreign agent ala the Communist Control Act.

      There’s not much point speculating on that point though. Barr needs to investigate and he needs to do it now. I would appoint a special counsel that can survive the election. If Trump isn’t re-elected in 2020, that’s an actual constitutional crisis.

      1. It’s entirely possible that the Democrat party leadership conspired with a sitting US President and foreign intelligence agencies to use disinfo to spy

        I expect this to be the GOP talking point within a month.

        1. Since that is EXACTLY what happened, how can it be a “talking point”?

        2. I guess “facts” are a talking point to some.

        3. It shouldn’t be a talking point. It’s just one of the possibilities and the reason why we need a special counsel to investigate the FISA warrants with zero redactions. Maybe even get Mueller on it!

        4. I can’t wait for you to ignore the Inspector Generals’ report like the good ignorant person you choose to be, Sarcastro.

          1. Counting your chickens, Jesse?

            Didja hear Barr is doing his own, executive-level investigation, Jesse? I expect you to eat that one up with a spoon.

        5. It’s entirely possible that the Democrat party leadership conspired with a sitting US President and foreign intelligence agencies to use disinfo to spy…

          I expect this to be the GOP talking point within a month.

          As distasteful as it sounds, you should probably listen to Rush Limbaugh once in a while to keep up with the state of the art on this.

          1. I used to listen to Rush, but I don’t think he’s the leader anymore. IMO, talk radio has taken a second seat to the cycle of right-wing-blogs => FOX News => President.

      2. “If Trump isn’t re-elected in 2020, that’s an actual constitutional crisis.”

        Do the ‘heterodox’ Conspirators still wonder why strong law schools ignore the invitation to put more movement conservatives on their faculties?

    3. How about, no?

  7. Professor Whittington says “If we took the president both seriously and literally, we might eventually get to a point of real crisis. ”

    Taking the most powerful man in the world seriously is only sensible, and he has some obligations to speak clearly enough that we can take him literally.

    It is also worth remembering that people who have lived through the destruction of their democratic government by an autocrat warn us “Believe the autocrat”. They tell us that “Oh, he doesn’t really mean that” is whistling past the graveyard.

    I would make the counter-argument that we have been in a Constitutional crisis since the debates, when one candidate refused to commit to accepting the election results if he lost.

    A further counter-argument is that it is a Constitutional crisis when nonfeasance by the executive allows a continued attack by a foreign power to progress uncontested. Russian cyber forces are booby-trapping our electric grid just like they did Ukraine’s. The Founders did not imagine that a commander in chief would simply ignore hostile acts from an overseas enemy.

    It is at least arguably a Constitutional crisis, as opposed to a case of misconduct, when the chief magistrate is in the pay of foreigners.

    If nothing else, having a President in place who is clearly, fundamentally, and irreparably unfit for the job is a crisis.

    1. “If nothing else, having a President in place who is clearly, fundamentally, and irreparably unfit for the job is a crisis.”

      I disagree. We have enough strength and momentum to overcome Trump and his followers for a couple of more years, much as we have handled successive waves of bigotry — targeting the Irish, Jews, blacks, Italians, Catholics, women, agnostics, Hispanics, Asians, gays, eastern Europeans, and others — throughout American history. The beauty of America is that over time the voices of intolerance, superstition, and ignorance do not win. This latest batch of bigots seems nothing special.

      Over the long term, the degree to which Trump brands the Republican Party with bigotry, backwardness, selfish corruption, and incompetence for at least a generation should generate important benefits for America. As old, rural, southern Republicans take their stale thinking to the grave and are replaced by better, younger Americans in our electorate, America continues to improve and American progress will continue.

      1. You sound a bit more optimistic and hopeful than I am, Artie. 160 or so years later and we’re still not there.

        1. Progress, and the associated resounding victory in the culture war, should be enough for any educated, informed, modern, decent American. That progress will continue to improve America. Enjoy and appreciate it.

    2. “when one candidate refused to commit to accepting the election results if he lost.”

      Um

      “”You can run the best campaign, you can even become the nominee, and you can have the election stolen from you,” she said to cheers on the Los Angeles stop of her “Evening with the Clintons” tour with her husband, former President Bill Clinton. ” May, 2019

      I guess “election stolen from you” is just patriotic acceptance.

      “a President in place who is clearly, fundamentally, and irreparably unfit for the job is a crisis”

      He left office in January 2017 so relax.

    3. “A further counter-argument is that it is a Constitutional crisis when nonfeasance by the executive allows a continued attack by a foreign power to progress uncontested.“

      I assume you are speaking of the Obama Administration, since Obama was warned by his own Intelligence agencies as early as 2014 that Russia was engaged in cyberattacks on our electoral infrastructure. Indeed, well before the 2016 election, when the CIA and NSA warned of Russian interference in the election, it was Obama’s Director of National Security, Susan Rice, that gave the “stand down” order when they requested authority to address these attacks. Maybe Susan Rice and Obama were colluding with the Russians? Do we need an investigation into that?

      1. Not to mention the Chinese hacking of tens of thousands of security clearance forms.

        But the Russians hacked some of Podesta’s e-mails!

        1. That China is such a non- concern for the Left when they are manifestly a far bigger problem is note-worthy.

          1. Well, the Chinese are still Communists so ” No enemies on the Left” applies.

            1. Yeah, liberals sure do love China. On accounta being Communist.

              Had your parody pills today, Bob?

              1. Post-1968 liberals have supported the Viet Cong, Soviets and the Sandinistas so why are the Reds in China different?

              2. To be fair to Bob, there is among the left a healthy love of the power that China has to do big projects or implement social reforms without all the messy democracy and checks and balances we have over here. I wouldn’t say it is because they are commies, which they really aren’t. More like big gov’t socialists, like lots on the left are.

                1. there is among the left a healthy love of the power that China has to do big projects or implement social reforms without all the messy democracy

                  I go onto some pretty lefty forums. Not big fans of China there.
                  Think: identity politics is all the rage on the left fringe now; how is China on that issue?

                  You’re indulging in confirmation bias at best.

                  1. You gotta get out of the media universe you’re in. I am surrounded by leftists day in and day out and generally have to idea my true beliefs. The benefit, if you could call it that, of being a conservative in a blue county of a blue state, is that I know how leftists think.

                    Elizabeth Warren recently praised communist China ‘long-term whole-of-government’ strategy. Do an internet search of the term “China Model” and you’ll see some pieces on it, including a long one in the Atlantic full of praise for a system where they liken China to some sort of Plato-ish Republic. Maybe you don’t remember the media going nuts over China’s awesomeness during the last Olympics over there either.

                    1. If you’re reaching back to some contrarian pieces on the Olympics of a year ago and one long Atlantic Piece, you may not have your finger on the heart of the liberal mind.

                      Not that I do either, but your sweeping statement about the left loving China seems like you’re making your wishes the author of your thoughts.

                    2. I think you are taking the words “healthy love for China” and making it more that what it is, an observation, and turning it into a me making a blanket statement of observed objective. I’m not claiming some sort of across the board China support.

                      Saying that the left admires government power when wielded in the direction it desires is fair starting point. And if you recall, much of the praise of China occurred during the Obama years, where there was yearning to capture some of that perceived economic magic over here (because those dastardly Republicans were getting in the way). Not to mention the left’s generalized support of the Soviet Union or Venezuela not that long ago…Bernie and Mike Moore are not outliers, but part of mainstream leftist thought.

                    3. if you recall, much of the praise of China occurred during the Obama years, where there was yearning to capture some of that perceived economic magic over here.

                      Thing is. I continue not to remember this. I continue to find it out of alignment with what I hear – more like the strawman statist left the of conservative imaginings and not the full space gay communism now left of kids these days, nor the incrementalist regulatory left of the Dem establishment.

                      Not to mention the left’s generalized support of the Soviet Union or Venezuela not that long ago…Bernie and Mike Moore are not outliers, but part of mainstream leftist thought.
                      Yeah, this is clearly the wishes not the thoughts. You think Moore is current liberal thought? Do Bill Maher next.

                      And Bernie didn’t say Venezuela was the best, he criticized it but didn’t call Maduro a dictator. It’s partisan wankery to turn that into support. And Moore is a pure polemicist these days with all the thin substance that implies.

                      So in the end this boils down to you were just saying liberals are bad and Reds, and when I called you on your facts you end up doubling down on the Red. Meh.

                    4. Of course you don’t remember it….your brain filters things out that causes cognitive dissonance. It took my liberal coworker the other day to point out to me that Obama actually cut social spending with the sequester (admittedly forced, but there it was).

                      Let me take another angle, since it seems difficult for you to accept what you don’t want to believe, an understand human foible.

                      Bernie is running at about 15% of the polls for Dem voters, who are by definition liberal/leftists. Bernie was a big supporter of the Soviet Union, even had his honeymoon there. Prior to Biden joining, he was at about 23%. Now, given the myriad other choices available in the primary, there is a fair amount of support amongst leftists for a candidate who had a man crush on Communist Russia, and who still is a through and through socialist. By logical extension, this translates to support for commies.

                      Note, I said “fair amount of support” not across the board, you need to stop making it look like I said ubiquitous.

                    5. You accuse me of bias, I accuse you of bias…But as the one making the statement the burden is on you, not me.

                      Bernie was a big supporter of the Soviet Union, even had his honeymoon there
                      Ages ago. He’s not a big USSR booster these days.

                      Your redbaiting BS shouldn’t even work on you, and it certainly won’t work on me.

                    6. “Bernie is running at about 15% of the polls for Dem voters, who are by definition liberal/leftists.”

                      By your definition, maybe.

                    7. ” there is among the left a healthy love of the power that China has to do big projects or implement social reforms without all the messy democracy and checks and balances we have over here.”
                      –May.9.2019 at 4:58 pm

                      ” I’m not claiming some sort of across the board China support.”
                      — May.10.2019 at 10:14 am

                      That’s a full 180 in less than 18 hours.

      2. “when nonfeasance by the executive allows a continued attack by a foreign power to progress uncontested.”

        The continual and rapid build up of US cyber-warfare and defense capabilities is strong evidence that ‘uncontested”is a bogus term of political theater.

  8. On the homepage of RealClearPolitics right now: “TRUMP JOB APPROVAL HITS 2-YEAR HIGH” RCP average up to 45.1

    No Collusion. After all that. Interesting times we live in.

    2020 is going to be quite a show.

    But so is the impeachment, if it happens. I can just picture it now. Each big name Democrat getting up in turn to say their weepy piece. The presidential hopefuls trying to outdo each other will be the most cringey part.

    “What? Over? Did you say ‘over’? Nothing is over until we decide it is!”

    “I think we have to go all out. I think this situation absolutely requires a really futile and stupid gesture be done on somebody’s part.”

    “We’re just the guys to do it…LET’S DO IT!”

    1. Democrats in the street like to talk about impeachment. The ones in Congress have no interest in it.
      Much the same way attendees at Mr. Trump’s rallies like to talk about talking an enhanced enforcement stance with regard to Mrs. Clinton’s alleged criminal acts, but the actual prosecutors aren’t interested.

  9. Mr. Whittington, you launch into a criticism of someone else declaring a “constitutional crisis”, and further decry that people (in general) are too prone to declare one, but you don’t lay out what definition of the term YOU are choosing.

    In response, I’ll offer mine. But first, digression. The Constitution divides the power of government to avoid concentration of power, because the Founders had direct experience with what they considered to be an excess of such concentration, in the form of the monarchy of England.

    The division of power is intended to produce friction, as any attempt by any branch of government to accrue more power necessarily comes at one of the other branches’ expense. It is unfortunately possible that two (or three) branches of the government can become obsessed with collecting power (or, for a positive spin, preventing other branches from doing so. When this tug-of-war becomes so frictive that other, necessary tasks go unperformed, that can be labeled “Constitutional crisis”. Now, this is an intentionally broad definition.

    The House, controlled by Democrats, intends to get all up in the President’s business, in a lawful exercise of power. The President, who prefers that his excesses go unexamined, intends to push back. Crisis is on the doorstep, at least.

  10. […] Keith Whittington, a Princeton professor who’s writing a book on constitutional crises, knows a stunt when he sees one: […]

  11. If we took the president both seriously and literally, we might eventually get to a point of real crisis. But there is no reason to rush into things.

    If we don’t take the president seriously and literally, how do we know when it’s time to react? Does it have to be too late before it’s okay for citizens to defend the Constitution?

    Or maybe we can make it worse. Should everyone drag their feet until the existing Constitution is a quaint memory, and then take up arms in a sovereignty crisis?

    1. Ordinary citizens only have two ways/opportunities to “defend” the constitution.

      1 Is on Election day. Except the bulk of voters seem to prefer to vote for candidates who prefer either promising free stuff that Congress has no constitutional power to deliver or their own aggrandizement/power over “defending” the constitution.

      2. Armed insurrection.

      1. Effecting progress against the preferences and efforts of intolerant, backward, poorly educated conservatives has worked well for mainstream Americans for at least six or seven decades.

        1. Fuck off, slaver.

          1. Open wider, clinger.

      2. Nonsense. It was fear of the outrage of ordinary citizens which lined up Republicans to join Democrats and impeach Nixon.

        1. Nixon wasn’t impeached.

  12. […] Keith Whittington, a Princeton professor who’s writing a book on constitutional crises, knows a stunt when he sees one: […]

  13. not until all the legal battles are over and people start pulling guns is it a constitutional crisis. all the legal manuvers being taken now are within constitutional rights so no crisis

    1. Ron, Congress has the constitutional power, right now, on its own authority, to jail Barr for contempt. Do you suppose guns wouldn’t be pulled if Congress tried to do it? If the Sergeant at Arms came with deputies to arrest Barr, and was confronted by armed U.S. Marshals ordered by the President to prevent it, would that be a sufficient constitutional crisis for you?

      Also, the legal battles you refer to are much-talked-about (and talked about with fulsome assurance) by junior pundits. But please answer me this. The constitution vests the sole power of impeachment in the House of Representatives. How does that leave room for the President to object to any demand for information relevant to potential impeachment, or for the Court to have any jurisdiction over what must be turned over, and what not?

      Before you answer, remember that the power of the House to impeach a Supreme Court justice is undisputed. Do you suppose the Court would have legitimate jurisdiction to rule on any of the particulars in a case where one of its own was at risk of impeachment?

      The power to impeach necessarily and properly includes a plenary power to investigate, and all of it is vested in the House of Representatives, and not elsewhere. Judicial interference against the House in an impeachment investigation would not be proper—meaning in the 18th century understanding of that word—that it would prevent the authorized power to impeach from being effective. That would be a constitutional crisis too.

      1. “If the Sergeant at Arms came with deputies to arrest Barr, and was confronted by armed U.S. Marshals ordered by the President to prevent it, would that be a sufficient constitutional crisis for you?”

        I guess that would depend on how far the Sergeant at Arms goes – does he summon a posse and charge the marshals, resulting in blood on the streets?

        Or more plausibly, does he shrug and go home after muttering various threats and imprecations?

        1. There’s a discussion on pp. 10-17 here:

          https://fas.org/sgp/crs/misc/RL34097.pdf

      2. It seems to me you infer too-broadly from the undisputed investigatory powers. For it would apparently allow justification for investigation into anything if the fruits of the investigation could conceivably provide a basis for impeachment. It would seem that DDD’s reference to Watkins v. United States, 354 U.S. 178 (1957) is helpful.
        Now, if some action by a POTUS was egregiously and facially in violation of law, then this would certainly seem sufficient and allow inquiry into facts (probably using a Probable Cause standard) that could be relevant. But if it was into actions – say the Emoluments litigation claims – whose illegality is questionable and have no sufficient precedent to demonstrate that they are, then this might be beyond the scope of legitimate inquiry.
        There certainly will be fuzzy areas. But there have to be limits beyond a simple claim of relevance by a Congressional Committee. I suggest a standard of demonstrable violation of law.

        1. Smith, in principle (practicality, Congress, and the Supreme Court sometimes ignore principle), Constitutional empowerments are not to be shackled by laws. Neither the Congress nor the Court has any power to alter the Constitution by making a law, or by interpreting one. The Constitution says the House gets the impeachment power. That power certainly must include the power to decide what to investigate. If you suppose any other body can say otherwise, on what Constitutional basis do you rely?

          1. I decided to return to my earlier post to supplement it as a thought occurred to me during the interim. I then noticed your reply. I’ll first post my thought and then endeavor to respond to your reply.

            Possibly a Reasonable Suspicion, rather than Probable Cause, standard of putative illegality might be sufficient to justify a particular investigation. While this is theoretically a low standard, I remain convince some standard is necessary.

            The Watkins court acknowledged that:
            “The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws, as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste. But, broad as is this power of inquiry, it is not unlimited.”
            The power then is Inherent rather than Enumerated. I would argue that, as it is the former rather than the latter, it is necessarily more limited.

            The Congress has authority to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing [Enumerated] Powers”. If a statute is subject to such a restriction, would not its scope of investigation be likewise limited?

            Finally there is the question of whether unlimited investigatory powers conflict with Due Process of Law, be it Procedural or Substantive. The “principles of limited, constitutional government” require some bridle be imposed on both statutory action and investigatory action.

            I take no position on any particular currently-pending investigation. I have not bothered to keep informed sufficiently to provide an educated opinion. All I am saying is that neither the Executive nor Legislative functions allow such carte blanche as both the current office holders, and also some of the electorate, seem to think.

            1. The “principles of limited, constitutional government” require some bridle be imposed on both statutory action and investigatory action.

              No they do not. Some powers are plenary. Nobody disputes that the sole power to declare war was vested in Congress. Nobody else gets input. The Supreme Court, for instance, can’t review any aspect of a declaration of war.

              If to the contrary, you suppose the sole power of impeachment was, somehow, not vested in the House of Representatives, despite explicit Constitutional language saying it was, then I suggest you at least need to cite some principle more compelling than a blanket denial. And reliance on a court decision about powers relating to legislation doesn’t seem relevant to a set of facts regarding contested powers that are unrelated to legislation—as in the case of impeachment. And that’s even before you get back to the key point that if the power of impeachment is a plenary power of the House, the courts get nothing to say about it, so the decision you cite can’t apply.

              And then there is this:

              “The Congress has authority to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing [Enumerated] Powers”. If a statute is subject to such a restriction, would not its scope of investigation be likewise limited?

              Justice Marshall said explicitly that the necessary and proper clause was not a restriction on enumerated powers, but an enlargement of them.

              1. Sorry, the bit about Marshall should not have been italicized.

      3. So your not willing to allow for further legal options that were available to all past administrations. That type of unequal application of the laws is what forces people to react. Hopefully not violently

      4. US Marshalls and the Secret Service. That would be a crisis of sorts but not a Constitutional Crisis.

        IT would be high theatrics that amount to s showboating attempted coup d’etat. If the House is serious they can take their complaints to court.

        1. Explain on the basis of the Constitution why the Court is superior to the House of Representatives on a question of impeachment.

          Also, Trump defenders really have to get away from this meme that the exercise of a constitutional power is somehow a coup d’etat.

  14. Bear in mind that the Congressional contempt power, as claimed by Congress (and apparently by the Supreme Court), includes the power to punish assaults on members.

    So, if, purely hypothetically, someone was accused of shooting or attacking a member or members of the House or Senate, could they have been arrested, taken to whichever house was affronted, given a trial by that body, and sentenced to prison?

    1. Even though approved by the Supremes, I regard the Congressional contempt power as a bad relic of the Old English constitution – part of the legislative supremacy doctrine which was upheld in England in the 18th century but supposedly rejected in America.

      Specifically, the jury-trial guarantees specify the way in which the federal government will punish people for crimes – a jury, not a panel of Senators or House members, except for impeachment cases which involve removing people from federal office and possibly keeping them out office in the future, but not putting them in prison.

    2. Theoretically, yes. However, SCOTUS has explicitly limited the term of imprisonment in a way that for Congress to take that approach to be letting the attacker off rather easy. Specifically, imprisonment under Congress’ inherent contempt power can not extend beyond the end of the current congressional session.

      1. But there’s nothing in the Constitution about an inherent power of the Senate or House to imprison non-members, whether in session or out of session.

        There’s a power to punish its own members for disorderly behavior, and a power of the houses jointly (House prosecution, Senate trial) to strip people of officeholding rights, but nothing about unilaterally putting nonmembers in prison.

        I think power-hungry Congresscritters, abetted by Anglophiliac Supreme Court justices thinking of the British Parliament, managed to slip this “inherent” into the Constitution somehow, apparently under the argument of necessity.

        But the link above says Congress hasn’t exercised this supposedly necessary power since 1935.

        1. Did defiance of Congress sort of taper off after 1935? No, not really.

          Holder was found in contempt (I think of the House not the Senate) but the Republicans did the right thing – they didn’t have the House issue an arrest warrant under its own authority. (not that Holder would have submitted to such an arrest – what with all those cops he had at his disposal)

          Better for a guilty person like Holder to escape than to take a shortcut around trial by jury and separation of powers. The Supreme Court saying it’s OK doesn’t make it so.

          1. Eddy, I think you are at least making an argument worth paying attention to. One counter-argument would be that doing it your way makes the House subordinate to the Court in exercising what the Constitution says is the House’s “sole power of impeachment.” What do you say to that? How does the Court get to interfere with a “sole power” of the House? Could the Court also interfere with the power of Congress to declare war?

            1. I’d say that refusing to provide information relevant to an impeachment investigation…is itself an impeachable offense!

              Thus, the House wouldn’t need to send the Sergeant at Arms if a public official refused to hand over evidence – instead, the House could just impeach that official, and if 2/3 of the Senate agrees that the charge is legally valid and not a political frame-up, that official would be out of a job, and maybe barred from future federal service.

              If the official in question is the President, the same applies.

              1. That’s a little too clever, Eddy. The purpose of the demanded information is to use it to support (or obviate) impeachment. What you suggest leaves that purpose unfulfilled, maybe even thwarted.

  15. […] Keith Whittington, a Princeton professor who’s writing a book on constitutional crises, knows a stunt when he sees one: […]

  16. I strongly desire burning hell for the Left of this country.

    1. I did not enjoy the liberal-libertarian mainstream victory in the culture war nearly enough, or recognize the importance of stomping the political preferences of right-wingers throughout my lifetime, until I began to visit the Volokh Conspiracy and see the Conspirators’ work and their fans’ comments.

    2. How sad for you to be burning yourself up with all that hate.

  17. Here’s a lawyer analyzing the “inherent contempt power” option. Of course this analysis was five years ago in the Huffington Post in a case where the political parties were reversed, but I doubt anyone would be affected by such considerations, since the underlying principles are the same:

    “There are, of course, formidable complications (legal, practical, and political) in exercising Congress’s inherent power of contempt. Although no court has ruled on the matter, the Olson OLC Opinion stated OLC’s belief that the president’s assertion of executive privilege presents a complete constitutional shield against Congress’s exercise of its inherent contempt power as well as its statutory contempt power. Moreover, the question of how the Sergeant-at-Arms would arrest and take into custody the Attorney General of the United States — particularly given limits on the geographic scope of the Sergeant-at-Arms’ jurisdiction, and the potential obstacle presented by the Attorney General’s security detail — presents an intriguing, unseemly, and improbable dilemma. And if custody somehow were achieved, the House would have to interrupt its legislative proceedings to conduct a trial at the bar of the chamber. Thus, it is not surprising that neither the House nor the Senate has exercised their inherent contempt power since 1935.”

    https://bit.ly/2Vdsmr1

    1. 7 years ago, not 5

    2. This is great research, including that CRS stuff you dug up. Thanks.

  18. We have an Executive branch which refuses to comply with ANY and ALL subpoenas issued by Congress.

    Unless killing them all has suddenly become an acceptable course of action, I’d say that’s a pretty clear indication that we have a Constitutional crisis.

    I look forward to seeing those who believe themselves to be above the law having their cornholes expanded in prison.

    1. “We have an Executive branch which refuses to comply ”
      The Executive has claimed blanket executive privilege. EIther Congress and the Office of the President negotiate a settlement or this gets resolved by a ruling of SCOTUS. As of now there is no crisis only an opportunity for clarification

    2. I doubt the prison they send Hillary to will be all that bad.

  19. DemocRats. Rats. Who hate America.
    Convention Of States

    1. For the sake of argument, let’s say you’re right (you’re not but let’s pretend).

      What would you do about it Mr./Mrs./Mx. ConstitutionFirst?

      How about…nothing.

      Well except name calling which is a pretty lame tactic.

  20. […] “Wishing for a Constitutional Crisis,” by Keith Whittington […]

  21. […] “Wishing for a Constitutional Crisis,” by Keith Whittington […]

  22. […] “Wishing for a Constitutional Crisis,” by Keith Whittington […]

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