Donald Trump

Trump Loses Round One in Financial Record Fight

A federal judge rejects the President's attempt to block a Congressional subpoena of his financial records.

|The Volokh Conspiracy |

This afternoon, Judge Amit Mehta of the U.S. District Court of the District of Columbia rejected President Donald Trump's attempt to block a congressional subpoena seeking financial records from Trump's accountants.

Here is the introduction to Judge Mehta's opinion in Trump v. Committee on Oversight and Reform:

I do, therefore, . . . solemnly protest against these proceedings of the House of Representatives, because they are in violation of the rights of the coordinate executive branch of the Government, and subversive of its constitutional independence; because they are calculated to foster a band of interested parasites and informers, ever ready, for their own advantage, to swear before ex parte committees to pretended private conversations between the President and themselves, incapable, from their nature, of being disproved; thus furnishing material for harassing him, degrading him in the eyes of the country . . .

- President James Buchanan

These words, written by President James Buchanan in March 1860, protested a resolution adopted by the U.S. House of Representatives to form a committee—known as the Covode Committee—to investigate whether the President or any other officer of  the Executive Branch had sought to influence the actions of Congress by improper means. . . . Buchanan "cheerfully admitted" that the House of Representatives had the authority to make inquiries "incident to their legislative duties," as "necessary to enable them to discover and to provide the appropriate legislative remedies for any abuses which may be ascertained." But he objected to the Covode Committee's investigation of his conduct. He maintained that the House of Representatives possessed no general powers to investigate him, except when sitting as an impeaching body. Buchanan feared that, if the House were to exercise such authority, it "would establish a precedent dangerous and embarrassing to all my successors, to whatever
political party they might be attached."

Some 160 years later, President Donald J. Trump has taken up the fight of his predecessor. On April 15, 2019, the Committee on Oversight and Reform of the House of Representatives issued a subpoena for records to Mazars USA LLP, a firm that has provided accounting services to President Trump. The subpoena called for Mazars to produce financial records and other documents relating to President Trump personally as well as various associated businesses and entities dating back to 2011—years before he declared his candidacy for office. The decision to issue the subpoena came about after the President's former lawyer and confidant, Michael Cohen, testified before the House Oversight Committee that the President routinely would alter the estimated value of his assets and liabilities on financial statements, depending on the purpose for which a statement was needed. For instance, Cohen said that the President provided inflated financial statements to a bank to obtain a loan to purchase a National Football League franchise. But when it came time to calculate his real estate taxes, the President would deflate the value of certain assets. To support his accusations, Cohen produced financial statements from 2011, 2012, and 2013, at least two of which were prepared by Mazars.

Echoing the protests of President Buchanan, President Trump and his associated entities are before this court, claiming that the Oversight Committee's subpoena to Mazars exceeds the Committee's constitutional power to conduct investigations. The President argues that there is no legislative purpose for the subpoena. The Oversight Committee's true motive, the President insists, is to collect personal information about him solely for political advantage. He asks the court to declare the Mazars subpoena invalid and unenforceable.

Courts have grappled for more than a century with the question of the scope of Congress's investigative power. The binding principle that emerges from these judicial decisions is that courts must presume Congress is acting in furtherance of its constitutional responsibility to legislate and must defer to congressional judgments about what Congress needs to carry out that purpose. To be sure, there are limits on Congress's investigative authority. But those limits do not substantially constrain Congress. So long as Congress investigates on a subject matter on which "legislation could be had," Congress acts as contemplated by Article I of the Constitution.

Applying those principles here compels the conclusion that President Trump cannot block the subpoena to Mazars. According to the Oversight Committee, it believes that the requested records will aid its consideration of strengthening ethics and disclosure laws, as well as amending the penalties for violating such laws. The Committee also says that the records will assist in monitoring the President's compliance with the Foreign Emoluments Clauses. These are facially valid legislative purposes, and it is not for the court to question whether the Committee's actions are truly motivated by political considerations. Accordingly, the court will enter judgment in favor of the Oversight Committee.

 

No doubt this opinion will be appealed. Trump's attorneys may succeed in obtaining a stay, or otherwise slowing down these proceedings, but I expect they will ultimately be unsuccessful.

Assuming Congress must be able to identify a legitimate legislative purpose when seeking such information, Judge Mehta is correct to conclude that that any such requirement is amply satisfied here. The President is not a private individual. His financial information is relevant to the legislature's authority to determine whether foreign emoluments are to be permitted and under what conditions, as well as to whether presidential conduct implicates his oath of office or could justify an impeachment inquiry. Whether or not relevant legislation has been introduced or a formal impeachment inquiry has been opened is irrelevant, as Congress is not required to introduce legislation before investigating whether any such legislation is desirable, nor is Congress required to open a formal impeachment proceeding before looking into whether such a proceeding would be justified, and it would be a stark departure from traditional separation of powers norms for a court to conclude otherwise.

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  1. My understanding from listening to liberal radio is that, this federal stuff non-withstanding, that bank records are being given in the state of New York to their financial oversight agency.

    1. NY is basically a wholly owned subsidiary of the Democratic party, and way too many corporations are chartered there.

      I doubt they’ll manage to nail Trump on anything, he’s been under perpetual audit for decades. But, of course, that’s not the goal here. It really is just a fishing expedition to find anything embarrassing they can, and then leak it.

      1. “I doubt they’ll manage to nail Trump on anything”

        He doesn’t want you to know how much money he doesn’t have.

        His branding is built on his claims of being a billionaire businessman, and examining his tax records are likely to show that he is neither a billionaire nor a very good businessman. The bulk of his income comes from licensing his name to projects built and managed by other people, because suckers believe his name implies value.

        It’s 50-50 whether suckers will continue to support Trump-branded properties even after it’s shown that he’s a self-promoting fraud.

          1. Yes, he gets other people to lie for him, too.

            1. Well, hard to argue with paranoid conspiracy theorizing, especially when “theorizing” is a bit of a stretch.

              1. “Well, hard to argue with paranoid conspiracy theorizing”

                You seem to have trouble arguing regardless of who you’re engaging.

      2. Brett : “I doubt they’ll manage to nail Trump on anything”

        The Trump Foundation operated from 1988 to 2017, when the media and state officials took a good hard look at it. Its board consisted of DJT and his three adult children – along with someone named Allen Weisselberg as ostensibly its CFO. The only problem? Mr. Weisselberg had been on the board for over a decade without anyone ever informing him of that fact. The minute people really examined the Foundation it was quickly exposed as a sham and fraud. It was looted by the Trump family for everything from oil paintings of The Donald to grace his golf resorts, to seven dollars for little Don Jr’s boy scout fees. It wasn’t even legally registered in New York State.

        Trump University operated from 2005 thru 2010, when the New York AG began an investigation and it was quickly exposed as a sham and fraud. It shut down immediately and Trump has paid out 25 million dollars in fines and lawsuits since.

        When you’re dealing with a criminal, sometimes all it takes is a little focused attention and the whole house of cards comes tumbling down. Why do you think Trump is so terrified of scrutiny anyway?

        1. It was looted by the Trump family for everything from oil paintings of The Donald to grace his golf resorts, to seven dollars for little Don Jr’s boy scout fees. It wasn’t even legally registered in New York State.

          I do not understand why this is not a felony. If the bookkkeper had taken the money the bookkeeper would be in jail.

        2. Precisely. I’ve never seen an innocent man fight so hard to conceal evidence of his supposed exoneration.

          1. Wow, Bill Clinton litigated all the way to the Supreme Court. Are you saying he wasn’t innocent?

            1. Indeed, Obama spent a couple years in court fighting the release of his birth certificate, is UM claiming he’s Kenyan?

              1. He spent no time “fighting the release of his birth certificate.”

              2. I provide the below timeline from Politifact so that Brett can easily show us where “Obama spent a couple years in court fighting the release of his birth certificate”.

                (Go to it, Brett. Make a fool of yourself)

                Spring 2008: As it becomes clear that Obama is going to win the Democratic nomination, blogs and chain e-mails spread claims that he was not born in Hawaii and may not be eligible to run for president.

                June 13, 2008: After many inquiries from reporters, the Obama campaign launches a website called Fight the Smears to address rumors about the candidate. It posts a copy of the Certification of Live Birth, a computer-generated document that says he was born in Honolulu on Aug. 4, 1961.

                Summer 2008: The birth claims continue to be widely circulated. A reporter for FactCheck.org travels to the campaign’s Chicago headquarters and is allowed to hold the document. FactCheck declares it is legit.

                Oct. 31, 2008: Hawaii’s director of the Department of Health, Dr. Chiyome Fukino, declares that he and the head of Vital Statistics “have personally seen and verified that the Hawaii State Department of Health has Sen. Obama’s original birth certificate on record in accordance with state policies and procedures.” Hawaii Gov. Linda Lingle, who is campaigning for Republican presidential contender John McCain, says the document is authentic.

                Nov. 4, 2008: Obama is elected.

                Spring 2009: Claims of doctored evidence and a cover-up about Obama’s foreign birth are rekindled by bloggers and chain e-mails.

                May 28, 2009: At a White House press briefing, World Net Daily correspondent Lester Kinsolving asks why the administration won’t release “a certified copy of his long form birth certificate listing hospital and physician?” Press Secretary Robert Gibbs responds that the copy posted on the Web is a legitimate birth certificate.

                January-February 2011: Republican officials in several states introduce bills requiring future presidential candidates to provide copies of original birth certificates. Businessman Donald Trump speaks to the Conservative Political Action Conference and then begins mentioning his doubts about Obama’s birth in media interviews.

                April 7, 2011: Trump claims on morning talk shows that Obama’s Kenyan grandmother said he was born in Kenya and she was there and witnessed the birth. PoliltiFact rates the claim False.

                He also claims that the president “spent $2 million in legal fees trying to get away from this issue.” PolitiFact rates that False.

                Week of April 18, 2011: White House decides to seek a waiver from Hawaii’s prohibition on releasing the long-form birth certificate.

                Thursday, April 21: White House counsel Robert F. Bauer speaks with private counsel to the president, Judith Corley, from the law firm of Perkins Coie, and asks her to contact Hawaii officials about how to make the request.

                Friday April 2:, President Obama signs a letter to the Hawaii Department of Health requesting two certified copies. Corley is sent to Hawaii to pick it up on Monday, April 25.

                Tuesday, April 26: The birth certificate is delivered to the White House.

                Wednesday, April 27: White House releases the document. Obama says, “I know that there’s going to be a segment of people for which, no matter what we put out, this issue will not be put to rest. But I’m speaking to the vast majority of the American people, as well as to the press. We do not have time for this kind of silliness. We’ve got better stuff to do.”

                1. grb:
                  Thanks for the thankless job. As I’m sure you already know, it won’t do a damn bit of good.

                  1. Thanks from me also.

                    Don’t expect Brett to retract his comment. If experience is a guide he will drop the subject for now, but come back to it a different way when he feels like it.

                    I often wonder where he gets his nonsense.

                    1. “I often wonder where he gets his nonsense.”

                      There is an entire industry of getting Conservative folks riled up. New outrage every day. Sometimes the outrage comes from things that are outrageous. But there aren’t enough of those outrages to fill the airtime, so they have to come up with SOMETHING. Sometimes they misunderstand things and get outraged over their misunderstanding of what’s really happening. Sometimes there’s just nothing to get outraged about, so they make some stuff up to be outraged about.

                      The hours are long, but the job pays quite well, for those that can hold an audience.

        3. ” Why do you think Trump is so terrified of scrutiny anyway?”

          Mr. Trump’s business depends on convincing people who build things to attach the Trump name to the project, because suckers believe the Trump name has value. This business is dependent on suckers not catching on to the fact that he’s an incompetent boob. Scrutiny tends to show that he is, in fact, an incompetent boob. If the suckers catch on, Trump has nothing left to sell people.

          People who lie for a living don’t like truth. This is true whether the lie is criminal in nature, or not criminal in nature.

          THAT’S why Trump doesn’t like people who tell the truth poking around his businesses. (Now, people who have a reason to work against his interests probing into his businesses is also bad for him, but that’s secondary.)

          1. Even if that is true, it’s not within Congress’ purview. You’ve acknowledged that Congress has no legitimate purpose for this “investigation” other than to harass him.

            1. ” You’ve acknowledged that Congress has no legitimate purpose for this “investigation” other than to harass him.”

              I’ve done no such thing, but even if I had, and it were true, it would still fall within Congress’ power to harass him.

              Nice try, though.

              1. You don’t see an issue with Congress using its powers to harass people? Can they start requesting medical records of homosexual men and releasing their HIV+ status? If not, why not?

                1. “You don’t see an issue with Congress using its powers to harass people?”

                  You’re not good at summarizing other people’s claims. What I said was, I don’t see an issue with different branches of the federal government impeding each other. It’s called “separation of powers”. You should look into it.

                  “Can they start requesting medical records of homosexual men and releasing their HIV+ status?”

                  Can they? Sure? Any chance they’re going to start doing so? I doubt it very much. Besides, you post pseudonymously, so we wouldn’t recognize you by your real name, even if they did start doing something like this.

        4. “Trump University operated from 2005 thru 2010, when the New York AG began an investigation and it was quickly exposed as a sham and fraud. It shut down immediately and Trump has paid out 25 million dollars in fines and lawsuits since.”

          The legal defense for why it couldn’t possibly be a sham and a fraud included the claim that their marketing materials were so obviously false that no rational person could/would/should have relied on them to be true.

  2. “Assuming Congress must be able to identify a legitimate legislative purpose when seeking such information…”

    I’d like to know what just what the “legislative purpose” is for the fishing expedition myself.

    1. Womp womp.

    2. That’s quoted from the opinion in Professor Adler’s article.

    3. Its amazing how liberal Obama appointed judges derived animus of trumps use of his constitutional powers with little evidence… yet here with direct statements from Cummings, Nadler, Pelosi, and others… animus is no longer a reason to stop action. I dont ask for much… but how about consistency?

      1. You mean following the Supreme Court’s direction when it comes to animus?

        Also, of course, there isn’t direct statements about the investigations actually being to persecute Trump, unlike Trump’s statements that the travel restriction was a Muslim ban.

        1. Statements by a few proponents of citizens referendums are sufficient to invalidate the votes of hundreds of thousands but all the Resistance statements by Dems reps are not “direct” enough here.

          Trump broke so many brains.

          1. Trump as much as said the reasons he gave for the travel bans were pretextual. The Supreme Court said that doesn’t matter so long as the given reasons are sufficient on their face.

            By that same analysis, courts can’t examine for bad faith in Congress’s reasons for investigating. But even if they did, the evidence Congress has given regarding the purpose of the investigation is pretty strong on good-faith.

            If you want to argue that animus applies to mere antipathy about the person/group at bar, we’ve got a lot of relitigating to do about a lot of Trump policies, because he evinces a lot of hostility about a lot of people and groups he later acts on.

            1. “purpose of the investigation is pretty strong on good-faith”

              Snort.

              Those Nigerian scammers must love you.

              1. Congressmen are pretty good at message discipline, as it turns out.

                As I said, if you want to read anti-Trump statements as proof of bad faith on all efforts to check him, that’s not only a massive expansion of animus, its not a road Trump wants to go down.

                1. “Congressmen are pretty good at message discipline, as it turns out.”

                  This belies a misunderstanding of how Congress works. The House is 435 people all out for themselves. It takes extraordinary amounts of effort on the part of party leadership to get a unified message, and to maintain it, and to keep people from peeling off. It’s why more and more power is given to the Speaker, until occasionally you get a member revolt.

                  The free rider problem is rampant. Most members want the benefits of passing legislation, but don’t want to actually take tough votes, so they want to burden the other guys in their party with the tough votes.

                  1. Um, I agree with all that, m_k. what does it have to do with Bob’s postulate that the House has basically admitted their investigations of Trump are illegitimate pretexts?

                    1. Because of the assumption that there is some direct, majority opinion, from the media reporting on citizens’ opinions for investigations -> Democrat members’ -> committee chairs -> leadership -> request for Trump’s records -> impeachment; when media messaging is not as much reflecting opinion, but driving it, and may well be the biggest driver of a desire for an investigation into Trump’s old tax returns.

                    2. That cuts against Bob’s point, not mine.

                    3. I’m not on Bob’s side, or anyone’s side, but my own. I just am pointing out that you’re perhaps mistaken as to where this desire for investigation into Trump’s taxes is coming from. House Dems having the same media message isn’t really evidence of much when the media is also directing the message both ways.

                    4. We were talking about the evidentiary issue.

                      Congress’ actual motives are immaterial, if, as you noted, they can be said to exist at all.

                    5. ” I just am pointing out that you’re perhaps mistaken as to where this desire for investigation into Trump’s taxes is coming from.”

                      Who cares?
                      Let’s suppose the goal of procuring the President’s business documents is 100% desire to embarrass him. OK? Now… so what? This means nothing if the documents do not, in fact, embarrass him.

                    6. Congress’ motives are not immaterial, because the legal purpose behind Congress’ power to get tax records (etc.) is because it has to have a connection to a legislative purpose. Remove that motivation, and what do you get?

                    7. Purpose != motivation. That’s what the whole animus thing was about.

                    8. “Congress’ motives are not immaterial, because the legal purpose behind Congress’ power to get tax records (etc.) is because it has to have a connection to a legislative purpose.”

                      I read somewhere that Congress shall have the power to lay and collect taxes. Do they have this power, but not the authority to see how it’s being done?

                  2. “This belies a misunderstanding of how Congress works. The House is 435 people all out for themselves.”

                    Which 3 of the 438 are in the clear, by your figuring?

                    1. There are 435 members of the House. What number are you using. Are you including the non-voting members from the territories or something? That’s just being needlessly pedantic.

                    2. “There are 435 members of the House.”

                      Had you stayed awake in Civics class, you’d have learned that there are 438 members of the House.

                      ” That’s just being needlessly pedantic.”

                      Whining about pedantry because you didn’t get the joke? That’s just sad, man.

                    3. I think you mean, “Had you been day dreaming during civics class.”

                      There are 435 members.

                    4. Every time Pollock says something stupid — most of his comments — he tries to pretend that it was a “joke.”

                    5. “I think you mean, ‘Had you been day dreaming during civics class.’”

                      Either way, go back until you learn how many members there are in the Congressional House.

                      “There are 435 members.”

                      First rule of Internet pedantry… before posting, make sure you’re more correct than the person you’re trying to correct.

                      We’re both off. The current total is 440.

                    6. “Every time Pollock says something stupid — most of his comments — he tries to pretend that it was a “joke.””

                      Oh, look… another person who’s mad because they didn’t get the joke.

            2. The Dems have a facial argument however the documents they’ve requested go back way to far to fit their supposed argument. I would also note that they haven’t requested any other records in that time frame including other Presidents, Senators, Representatives, as well as current and past Presidential candidates.

              1. ” I would also note that they haven’t requested any other records in that time frame including other Presidents, Senators, Representatives, as well as current and past Presidential candidates.”

                They only want accounting documents from guys who are currently President and whose personal lawyer testified that there were irregularities in the accounting for his businesses? What a shocking dereliction!

            3. “Trump as much as said the reasons he gave for the travel bans were pretextual. The Supreme Court said that doesn’t matter so long as the given reasons are sufficient on their face.”

              They also allowed police to make pretextual traffic stops, as long as the driver was actually violating a traffic law when they were stopped. So at least that’s consistent.

      2. Consistency? How about a modicum of intelligence.
        “To be sure, there are limits on Congress’s investigative authority. But those limits do not substantially constrain Congress.”

        What the hell???

        1. Read the responses to Rossami’s comment on the same issue; below.

          1. Aside from the fact that, rhetorically, it’s idiotic. Could one say, that the speed of light is only substantially limited to 186,000 miles per second? Maybe my credit cards only have substantial limits? It is also legally garbage. There are real limits on Congressional overreach with subpoenas. Their power is not effectively limitless. But the real offense to fairness is not even allowing a stay while this crap is appealed.

            1. You’re just question begging about the limits.

              1. Yeah, that’s smart. Are you seriously contending that there are no limits on congressional subpoena power? How did Obama miss out on you for a court pick?

                1. Yeah, I and Prof. Adler and a bunch of other people on this thread. Maybe that should give you pause before you do your usual ‘everyone who doesn’t agree with me is an idiot.’

                  It’s like rational basis as a limit on Congress – not unlimited, but broad enough to appear so. Does that drive you crazy as well?

                  1. You and a bunch of people on this thread, Dr. Sarcastr0? Not all that impressive. You all might want to read Watkins v US.

                    1. My point there is less that I must be correct, and more that your scorn for the opinion isn’t just scorn at me, but actually pretty wide-spectrum.

                      And I take it you didn’t read to the end of my comment before citing Watkins.

                    2. Nope. It’s pretty much scorn for your opinion.

                2. ” Are you seriously contending that there are no limits on congressional subpoena power?”

                  Literally nobody contends this.
                  The subpeona power is vast. Congress is nowhere near the limits. That’s a VERY different contention.

                  It’s also FAR less laughable than “You can’t investigate ME! I’m the President!” as advanced by President Trump.

                  1. It’s a limit but without real limits? Not something limited then is it?

                    1. Read his comment again.

                      Do you get really pissed at how rarely courts strike something down under rational basis? does that mean it’s unlimited power as well?

                    2. “It’s a limit but without real limits?”

                      You keep putting these words in other people’s mouths. Why is that? Is it easier to complain about than what they actually said? Is that it?

                    3. I bet you clowns read all sorts of limits into the President’s power to declare a national emergency and defend the borders of this country.

                    4. “I bet you clowns read all sorts of limits into the President’s power to declare a national emergency”

                      One limit is that if the President declares a national emergency that isn’t, the people of this country are 100% free to mock him for it.
                      I’m assuming you’re against this limitation, when it’s your guy in office, and totally for it when the other guys win.

                      ” and defend the borders of this country.”
                      It’s almost like you haven’t read any of the many, MANY comments I’ve written laying the blame for the number of illegals in this country at Congress’ doorstep. They put several, and severe, limits on the President’s power to order deportations. Twit.

                    5. I wonder if you keep an index of your comments? I bet you do.
                      And, you would be less of a clown if you didn’t feel compelled to quote every comment when you make a response.

                    6. “I wonder if you keep an index of your comments? I bet you do.”

                      I wonder if thinking about it makes you want to masturbate. I bet you do.

                      “you would be less of a clown if you didn’t feel compelled to quote every comment when you make a response.”

                      I quote what I’m responding to because often, other comments are between where mine will show up, and the one I’m responding to.
                      It makes things easier for the stupid people, like yourself, to keep up.

                    7. You’re trying too hard. I’m sure there’s a way for you to be less clownish. This was not that way.

                    8. “You’re trying too hard. I’m sure there’s a way for you to be less clownish.”

                      Not if I want to reach your level.

                    9. Oh and that’s not the reason you use truncated quotes in all your responses. It’s an aspect of your obnoxious sophomoric attempt to control the issue. Pretty clownish.

                    10. “Oh and that’s not the reason you use truncated quotes in all your responses.”

                      Well, I guess you’d know better than I do why I do things.

                      “Pretty clownish.”

                      Still way short of your valiant efforts, though.

                    11. Too arrogant and stupid to realize you’ve just proved my point.

            2. MKE, the norm among America’s younger generations has been no civics education, and among America’s older generations it has been civics education from poorly trained teachers. That might be your experience. One marker suggesting so is your statement, “Their power is not effectively limitless.”

              That’s what I was taught in my civics classes, too—that there are always checks and balances. But when you study up, you find out it isn’t always true. Along with the limited powers it delegates, the Constitution confers a variety of limitless powers on various government branches and officers. The power to declare war, the power to pardon, the power to make rules governing the conduct of business in the houses of congress, the power to impeach, and the power to try impeachments, are but some of them.

              A good way to distinguish the limitless powers from the others is to look in the Constitution for explicit direction that a particular branch, or a particular officer, gets the power, and not anyone else. That is a direction that checks and balances will not apply.

              When the Constitution says, as it does, that the House has the sole power of impeachment, it is saying that checks and balances don’t apply to impeachments. Instead, the House is being delegated to exercise directly the sovereign power of the People. And sovereign power is always limitless. That is what sovereignty means.

              Thus, you would have an argument about limits with regard to investigative powers and subpoenas, if those were exercised and issued pursuant to legislation. Legislation is always a multi-branch, checks-and-balances bounded process—hence a limited power.

              Impeachment is not a limited power. It is a direct exercise of the People’s sovereign constitutive power—which is their power to decree a government according to pleasure, without limit. Under that understanding, the People’s subpoenas issued by the House to investigate facts bearing on impeachment can’t be interfered with by anyone—not the Senate, not the President, and not the Court.

              That, anyway, is how it ought to work in theory. In practice there is history to the contrary (because previous confusions were never sorted out, creating what look like precedents), and there are also practicalities.

              The implications of outright defiance by the President rank high among those practicalities. In deciding what to do about the defiance, it is important not to lose sight of the constitutional principles mentioned above—which tell us that an attack by the President on the principles governing impeachment is not only an attack on the House, or on the Congress, or on the Constitution, but instead an attack on all of them, and, far worse, on the People’s sovereignty besides. That last is a far graver concern than any mere constitutional crisis, because it portends a crisis of sovereignty. If Trump can not be reigned in, the question of whether the American People are still sovereign will open.

              To master this crisis of defiance, the House would have to exert itself to the maximum, using every power it has been given: the power of subpoena; the power of contempt; the power to punish contempt directly, with fines or imprisonment; the power of the purse; and the power of impeachment.

              Unfortunately, there is little sign that the leadership of the House has the stomach for any of that. Maybe—as they seem to hope—they can muddle through, until the election bypasses the crisis, by turning Trump out—and if he will go. I do hope some enterprising reporter will presently ask Trump, “Assuming you lose in the electoral college, and you are certain the loss was caused by election fraud, will you step down?”

              There is a lot at stake. Stronger leadership in the House will prove indispensable.

              1. I can see you’ve given this a lot of thought. I reject your contention that the president must be “reigned in” for the sake of the republic. What has he done that is not within his constitutional prerogatives? But are you just as concerned about federal police and intelligence agencies abusing their powers to target a political opponent of the party then in control of the white house? Seems like this might bear more on healthy functioning of the republic then a document dispute between 2 separate but equal branches.

                1. ” I reject your contention that the president must be ‘reigned in’ for the sake of the republic.”

                  Like Mr. Trump himself, you wish Trump were King, not President, of the USA.

                  1. The quotes were from the above comment you dolt. More and more democrats resemble the Standing at the Back Dressed Stupidly and Looking Stupid Party.

                    1. “The quotes were from the above comment you dolt”

                      I included your quote from the above comment, you dolt-squared. BOTH WORDS that you quoted.

                      ” More and more democrats resemble the Standing at the Back Dressed Stupidly and Looking Stupid Party.”

                      That’s their problem.

                    2. Socialist Party? The Rent is Too Damn High Party?

                    3. Looking for supporters, are you?

    4. Impeaching the President is a legitimate legislative purpose.

      And the Supreme Court has already opined that the power of impeachment is not subject to judicial review.

      Therefore, the House of Representatives has the authority to investigate whatever it wants under it’s oversight authority.

      This analysis, obviously, does not apply to the Senate or a future House of Representatives if and when Republicans gain control of that house. Investigating a Democrat is never legitimate.

      1. It is obvious that you fail to see the difference between impeachment and oversight.

        Nice try though.

        1. Impeachment without investigatory powers is toothless.

          1. “Impeachment without investigatory powers is toothless.”

            Impeachment is an exercise of political power, not criminal law. A person is impeached if enough Representatives want them impeached, and convicted if enough Senators want them convicted.

            No need to ascertain facts prior to proceeding!

            1. Technically true, but you’ll never have the political ability unless you have investigatory power to let the public know why.

              1. No?
                Imagine the outcome of the 2016 election had come out differently.
                Now picture the people who like to go to Trump rallies and chant “lock her up! Lock her up!”. Do they need an investigation into facts to support the (hypothetical) impeachment of (hypothetical) President Hillary?

                Similarly, people talking about impeachment of ol’ Donnie J are SURE they know what he’s guilty of, and don’t need any investigation of facts to support it.

  3. IANAL but that opinion sounds like pure bullshit. Congress can authoritze itself because it can? That’s circular reasoning of the highest order. This sounds like the same Kelo trash where an entity “might” produce greater value for the community, but doesn’t have to prove it or have any commitment to it. Why should Congress be able to investigate something that “could” produce legislation when it never intended to legislate from the beginning?

    1. Also, while the President is not a private individual, he was a private individual. If you’re allowed to investigate anything, then you have effectively weaponized Congress into a state propaganda arm that is no more than CNN by another name. Maybe we can start calling it Congressional News Network.

    2. The judge even admits the material will likely leak quickly. It is so obviously partisan that this ruling flies in fact of reality and against the jurisprudence the same judges have used to block trumps use of executive powers.

    3. “IANAL but that opinion sounds like pure bullshit. Congress can authoritze itself because it can? That’s circular reasoning of the highest order”

      That’s how separation of powers works. Congress can use its powers as it sees fit… the other branches have limited, and fully specified, avenues to respond.

      Suppose Congress decides that, in it’s authority to regulate interstate commerce, golf courses can only be owned by in-state entities… state residents, and corporations registered in that state. Assuming they could get the votes, they could pass that law tomorrow.
      Now, the President could veto this bill because it’s just dumb, or because it’s bad for golf-course businesses, or because he thinks it’s targeted at him. Neither the Supreme Court or Congress can force him to answer questions about which of those reasons it really was.
      Or, going a different way, suppose Congress passed a law that says whenever a Supreme Court decision is issued, stare decisis applies for a minimum period of 50 years. The Supreme Court would be within its power to strike down that law, because the Constitution vests it with the supreme judicial power, and the supreme judicial power includes the power to change their minds about something.

      It comes down to the fact that each branch has the ability to use the power granted to them by the Constitution as it alone sees fit, whether or not the other branches agree with how it’s being used.

  4. My question : are there comparisons between this and the immigration cases where Trump was ruled against because of his allegedly bad intent?

    1. That why my initial thought. Suddenly, previous words and intent don’t matter. NOW ” it is not for the court to question” the “true intent”….

      Laughable.

      1. Uhh … you realize Trump won in the Supreme Court and the Court basically did say intent does not matter.

        1. They didn’t exactly say that…

          ” On the few occasions where the Court has struck down a policy
          as illegitimate under rational basis scrutiny, a common thread has
          been that the laws at issue were “divorced from any factual context
          from which [the Court] could discern a relationship to legitimate
          state interests.” Romer v. Evans, 517 U. S. 620, 635. “

          1. Romer v. Evans was absurd. The idea that the state has no legitimate interest in not legitimizing anal-sex based relationships mocks Western civilization.

            1. The 14th amendment stands for the proposition that there can be no morals legislation that isn’t based on the Supreme court’s morals. Didn’t you know that?

              1. Damn, I missed that class in law school!

              2. Brett, maybe don’t engage this particular guy on morals.

                1. I try to engage with everybody, including Kirkland.

                  I don’t have to agree in detail with RWH’s personal view of morals to confirm that the Supreme court hasn’t rejected morals laws in general, they’ve only rejected morals laws where somebody else’s morals have been legislated.

                  1. This is not difficult. Neither the government nor the Supreme Court will ever be able to ignore morality. Values drive our policy preferences. Just need to look at early Supreme Court cases to see that.

                    Gay marriage is a great example of this. So is desegregation.

                    But enshrining idiosyncratic localized morality into legislation; that’s where you can’t legislate morality. Loads of examples of that. Jim Crow is the archetypal example.

                    It’s not persecution of conservatives that your morality doesn’t get to make law. It’s just a reflection that your values don’t align with those of the mainstream. That’s not persecution; that’s just a failure to convince.

                    1. In the SSM case, it was the Supreme court’s morality that didn’t align with that of the mainstream. Virtually everywhere it was put to a vote, it was voted down, the judiciary just didn’t care. Nothing idiosyncratic or localized about that, SSM lost even in California.

                      I didn’t say they were ignoring morality. I said that they were voting in favor of their own morality. And they were, and are.

                      That’s fine when their morality happens to be written into the Constitution. Not so fine when they’re just pretending it is because they don’t like when democracy doesn’t agree with them.

                    2. The “mainstrem” was on our side at the time of Roe, Romer and Obergfell yet the court felt their morals were superior.

                      “that’s just a failure to convince.”

                      Amazing.

                    3. Bob, seems to me you’re wrong about all three of your cases cited. And it’s not close.

                      Brett, your narrative fails by the time it got to the Supreme Court. Social momentum is a helluva thing.

                      As I said, the Court’s morality reflects the nation’s values. Always has, always will.
                      Judicial legislation of your policy preferences isn’t alien to the right. Look at the moral grandstanding about limited government and even Making America Great Again you originalists do. Those are moral stands.

                    4. That is 180 degrees opposite of what you argued some months ago when I told you that ad populum fallacy is not a fallacy when speaking about legislation or policy initiatives.

                    5. Guys, don’t you know the formula?

                      Any moral viewpoint can become a brand new rule required under the Constitution, even though the provision may have been enacted hundreds of years ago without any slight hint of such a moral rule, and even though not a single fact or understanding of facts has changed in the interim.

                      You just need to follow the formula: (a) adoption as a pet cause by the cloistered and severely unrepresentative intelligentsia, (b) saturation of airwaves and media oligopoly with the issue for a time, (c) at least one biased poll showing a majority of public opinion in support, ignoring any contrary polls, then finally (d) five votes from lawless robed leftists.

                    6. Ad populum is a fallacy if you’re using it to argue about a fact, mad_kalak, as Scarecrow Repair & Chippering was regarding what asylum policies actually were.
                      https://reason.com/2018/06/12/jeff-sessions-ruling-denying-asylum-to-v/#comment-7310576

                      Millennial Lawyer, your strawman is cute, but you are no stranger to finding your preferred policies in the Constitution yourself, from executive power to immigration to getting rid of all agencies.

                      At least I say I’m not an originalist. Dunno how you guys manage, sometimes.

                    7. “Bob, seems to me you’re wrong about all three of your cases cited. And it’s not close.”

                      Romer invalidated the results of an election in a moderate state so its pretty hard to say that it was 5 justices that represented the “mainstream”

                      As pointed out, gay marriage had lost most referendums including the one at issue in a very liberal state so its again pretty hard to say that it was 5 justices that represented the “mainstream”.

                      Polling on abortion shows and has always showed that the “mainstream” supports some restrictions and opposes others while Roe says no restrictions 2/3 of the time and thru the health exception has the effect of no restrictions in the last 1/3. Casey which reigned it in a bit shows a recognition that it was out of the mainstream.

                    8. Yes, I know, it that is a fallacy when debating a fact. The specific issue, some months ago, wasn’t a matter of fact, but a matter of policy preferences. You said, (I paraphrase) that just because a lot of people want something as a law/policy, it doesn’t make it a good law/policy. That is true. But you went on and called it a fallacy ad populum, to which I replied when discussing policy in a democracy, that fallacy doesn’t exist because we have a majority rules system (with rights as guardrails). If the majority wants X, it is not a fallacy, but a feature of a deliberately designed system.

                    9. m_k I linked to the thread. It was about a factual statement about assylum policy being true because everyone wants it.

                      But even if it were not, I’m not talking about good policy; I’m in is land, not ought land.

                      It does line up with what I think is good procedure. But you’d better believe that procedure does not always line up with my preferred policies.

                      Bob, you’re ignoring the very rapid shift in opinion at that time as you cite old referenda.
                      I know you were tracking it; you complained about it on this blog.
                      And the final proof is in the reaction to the decision. You and the ThreeLetterRacist guy and a few others are very much a rump caucus these days.

                    10. Ugh, you’re misreading the old thread as much as you’re misunderstanding the argument now.

                      Something can be a bad policy, even if everyone wants it, or a good policy if no one wants it…but either way, it’s not a fallacy to say “because everyone wants it, it’s a good policy” when we live in a majority rules democracy.

                    11. Now you’re conflating policy with procedure. Tyranny of the majority does not make for good policy.

                      The Founders knew the will of the majority would be pretty bad a decent amount of the time. Hence the bill of rights, the representative republic they built, etc.
                      But they also knew that no other policy-making procedure would be as good, or as morally just, as giving the people a voice.
                      The best form of government does not assure the best outcomes every time.

                    12. I didn’t mention anything about procedures, where are you getting that?

                      You’re conflating my point with the problem of tyranny of the majority. Regardless of the tyranny of the majority problem, it’s still not a fallacy ad populum in a democracy when talking about policy/law to point to a law/policy’s popularity when the purpose of a democracy is to give voice to the majority.

                    13. “old referenda”

                      The California one was literally at issue in the case!

                      No poll showed majority support until AFTER Tony foreclosed political avenues. Resignation to a coup does not equal agreement to it.

                    14. When you talk about the purpose of a form of government, that’s not making a statement about the merits of a particular policy that government passes, you’re talking about procedure.

                      That’s where your being fallacious. Saying it’s good to pass popular things is not the same as popular things are good, but you are using the first to argue the second.

                    15. Bob – are you talking about Obergefell? I think you’re mixed up.

                      2008 is not 2015. That’s kind of the point. It was extraordinarily fast. But yet the backlash remains limited. Which should be telling, no?

                    16. “I didn’t say they were ignoring morality. I said that they were voting in favor of their own morality”

                      One way of looking at it is that the people, in their capital “P” form, put the morality they wanted into the Constitution, and included in that act is the fact that a significant supermajority is required to overturn it.

                      The morality the court used in deciding the case is that it’s immoral to strip people of their rights. “Sorry, guys, but we got together and voted, and we decided that you aren’t married any more.”

                    17. I think much of the appearance of “fast acceptance” and “attitude shifts” is actually people afraid to speak up because of the power of the liberal apparatus.

                    18. Indeed, this isn’t a shift of attitudes, though that may come in time. It’s resignation in the face of overwhelming proof that the government isn’t going to let public opinion matter, and may even punish it.

                    19. Not just the government, but the media, academy, corporate America, and the rest of the “elite.”

            2. Western civilization? You mean like the ancient Greeks and all that?

        2. Trump is still losing in district courts despite the ussc ruling, see how his “reasons for ending daca” arent good enough yet.

          1. He’s not ruling on animus grounds, though. He’s losing because his appointees can’t follow the APA to save their lives.

            (Well, that’s confirmation bias really; some can. And those just aren’t the ones you hear about.)

            1. Oh BS. The APA gives the executive enormous latitude. Only in Trumplaw land are all of his actions suddenly “arbitrary and capricious.” And somehow, only when an Obongo judge is hearing the case.

            2. This is generally untrue for DACA as the program never went through the notice and comment APA procedures in the first place. Courts have been grasping for arbitrary and capricious to find a way to enjoin.

              In many other circumstances, including the census question stuff, your comment is correct.

              1. That’s why Trump should have long ago ordered the military to start kidnapping these worthless “judges.” Throw a few of them into the Atlantic Ocean, and watch these rulings stop very fast.

              2. There was a law suit about that, as I recall. The internal coordination procedures were found sufficient. But you’d better believe there was robust judicial review of whether the APA was followed.

                This admin doesn’t even bother. And then they cry persecution when their stuff gets shut down.

    2. Yes. They are different legal doctrines which are handled differently based on the differences between the constitutional powers of each branch, but at the 50,000 foot level, they are the same idea.

      Good luck finding people who agree with the court’s ruling here and in IRAP (or disagree with both). They will be few and far between.

  5. Judge Mehta was appointed by Barack Obama. No doubt there was a fair and impartial finding.

  6. “there are limits on Congress… But those limits do not substantially constrain Congress.”

    Excuse my ignorance but isn’t that basically a statement that there are not, in fact, any limits on Congress? Those two sentences strung together seem like mere sophistry. Either there are limits – in which case, they actual limit, that is, constrain Congress – or there are not limits.

    Prof Alder makes some decent arguments that maybe there ought not to be any limits. But however you feel about that, Mehta’s attempt to say that there are limits but that they don’t actually limit is logical drivel.

    1. There are limits, but they are not strong. There isn’t much about which legislation could not be had.

      1. The whole point of the 4th Amendment is to stop the king from filching willy-nilly at will through his opponents’ papers looking for things to hurt them with.

        It is pointless if the powerful can skip this because Congress could legislate on it.

        1. So, the point was to replace the King with Congress, which is now the body authorized to go filching willy-nilly at will through their opponents’ papers looking for things to hurt them with?

          1. Apparently.

            1. Y’all Constitutional purposivists are living Constitutioning it up here, eh?

              1. Take a look at the 4th amendment, and tell me where it says it doesn’t apply to Congress, only the executive branch.

                They can, legislatively, give themselves subpoena power. They can’t, legislatively, exempt themselves from the Bill of Rights.

                1. They can’t, legislatively, exempt themselves from the Bill of Rights.

                  So do you claim that, in a potential impeachment investigation, they have to get a warrant from a judge? I doubt it, especially since the subpoena itself can be challenged in court, as this one was.

                  Your complaint boils down to the fact that you don’t like the decision because, in your mind, Trump Can Do No Wrong.

              2. Sarcastro, once again with the hard hitting idiocy. The constitution doesnt apply to Congress now?

              3. The whole point of the 4th Amendment is to stop the king from

                That is some hard-core purposivism. And ya’ll jumped for it like it was Scalia speaking from heaven. Originalism is fine until it might allow Trump to be investigated, eh?

                Are you guys not going to argue that the 4th applies beyond criminal investigations? That’s some pretty novel doctrine right there.

                1. If they hadn’t had a purpose, they wouldn’t have even bothered writing a Constitution and Bill of Rights, purpose is inherent in law. It’s still originalism if you’re not pulling it out of your rear.

                  Yes, I am going to argue that the 4th amendment applies beyond criminal investigations. It embodies a general principle that the government can’t stick its nose into your affairs without a particularized reason to think you’re breaking the law.

                  1. purpose is inherent in law. It’s still originalism if you’re not pulling it out of your rear.

                    Breyer certainly agrees, though I don’t think he’d call it originalism. Nor would just about any originalist I know.

                    Good lord, Bob, you’re suddenly to my left on Constitutional jurisprudence. Your 4th ‘general principal’ analysis sounds like a satire of a Kennedy opinion.

                2. So Congress is rooting through papers to embarrass him but not prosecute?

                  No wonder they want the grand jury info.

                  1. If only there were things beyond just prosecution and embarrassment that have been past results of Congressional investigations…

        2. “The whole point of the 4th Amendment is to stop the king from filching willy-nilly at will through his opponents’ papers looking for things to hurt them with.”

          Not so. We’d already ditched the king by the time we started amending our Constitution.

      2. Is Congress beholden to the constitution? Is Congress limited into criminal investigations? I would say yes to both. How about you? Congress is not a criminal investigation unit, that is left to the executive.

        1. Yes to the first, but where in the Constitution do you find the second?

          Democracy according to Jesse:
          -DOJ can’t prosecute POTUS
          -DOJ will investigate those who investigate POTUS
          -DOJ should investigate POTUS’s political rivals
          -Congress can’t investigate POTUS without a crime already evident
          -Congress can’t request the investigative record
          -Congress can’t subpoena POTUS’s advisors

          1. While I most certainly am not an advocate of a too-powerful executive branch (at any level) – the POTUS occupants now having abused it for over 215 years – I have to agree w/ Jesse. If the issue being investigated (or purportedly investigated) is of a potential criminal violation, it ought to be referred to the appropriate investigatory and prosecutorial agencies; there are plenty of U.S. Attorneys, as well as the FBI, who properly exercise this jurisidiction. Allowing Congress to subsume this role results in an excessive concentration of power, something which is required to be divided as much as possible.

            [On a parallel track, I considered many of the indictments sought by Mueller to be ultra vires, not because there was not merit to some of them, but because they should have been referred to a U.S. Attorney for prosecution. (Admittedly, though, the excessive breadth of the scope allowed him by Rosenstein in his appointment provided him some justification in this regard.)]

            On a different matter, since I couldn’t reply directly to it, you said “[l]ook at the moral grandstanding about limited government”. Could you clarify? I perceive no element of moral posture in this position. The objective is to allow individuals to assert and interact w/ others in accordance with their own standards, be they moral, immoral or amoral, not to erect any edifice of standards as a Gold Standard. By necessity, since each individual will have his/her own unique complex of standards, there will be a plethora of them – and each will stand or fall based upon how valid they might be.

            1. I forgot to include in my post a reference to the committee investigation being pursued pursuant to 26 USC 6103. Now I know that the subject of the court action was a subpoena to a private third party whereas the above relates to a demand upon the Treasury Department. Still, since both involve the scope of Congress’ power, a comment thereon seemed appropriate.

              This statute ought to be substantially amended as it vests Congress with the power to engage in egregious abuses. Its potential, as justifying investigation of any taxpayer for virtually any reason whatsoever, is horrendous indeed. If there is suspicion of any criminal wrongdoing, it should be referred to the proper authorities, as alluded to previously.

              Congress has been far too lax for too long in delegating authority to, and then deferring to, the Executive branch. But those errors and omissions do not justify overreach to compensate for them.

              1. WTF are you talking about, with referrals and prosecutors. It is DOJ policy that the President can’t be indicted, so what deos any of that have to do with it.

                OTOH, he can be impeached, which is the business of the House, which therefore, as a matter of common sense, has the power to investigate him. So drop the pompous legal argle-bargle.

                1. I was referring to the indictments unrelated to Russian electoral interference. (As said, Rosenstein’s appointment letter provided arguable authority to investigate and criminally pursue almost anything, but this scope is what troubled me.) I wasn’t addressing anything which DJT may or may not have done – much less any remedies that may be available against him – but tangential prosecutions such as that of Manafort. (From what I know Manafort certainly ought to have been prosecuted but, absent Mueller’s broad authority, should have and would have been pursued in normal channels.)

                  My objection, by which I stand, is that vesting carte blanche authority in any single person or any single governmental body is excessively dangerous.

            2. ” If the issue being investigated (or purportedly investigated) is of a potential criminal violation, it ought to be referred to the appropriate investigatory and prosecutorial agencies”

              Agreed. But why do you imagine this precludes action (including investigation into facts) by Congress? Why can’t they investigate things AND refer any crimes they discover for prosecution?

              1. My recommendation was based upon the premise that Congress was *already* in possession of sufficient evidence – presumably a Reasonable Suspicion standard being sufficient – to indicate possible criminal wrongdoing. At that point then the referral should be made.

                If only during the course of an investigation that was justifiable as either oversight or toward potential legislation – and in the current context I would concur that, say, potential Obstruction of Justice by POTUS would be within this scope – the aforesaid evidence is disclosed, then a referral should be made.

                My concern is with too many functions being performed by, and hence too much power gravitating toward, any single governmental body. To me, extensive division of functions – either within a certain level of government or between various levels of government – is the best guarantor of liberty.

                1. Regardless of your airy conclusions about how best to distribute power, the OLC disagrees. Mueller followed them.

                  Switching standards now has the effect of rendering the Presidency immune.

                  1. “airy”, eh … I’m not sure which of its definitions was intended here …

                    I assume you were replying to a comment of mine in an earlier post about the Mueller investigation. Mueller operated within the excessively-broad scope allowed by Rosenstein. My complaint was that allowing arbitrary authority to any single person should be avoided.

                    I have no idea where you and Bernard inferred I was addressing the immunity (or lack thereof) of the Presidency. My “airy conclusions” were directed to excessive concentrations or exercises of power by any single body, in general. I was, though, specifically applying them to the Mueller non-Russian electoral interference investigations and certain of the Congressional investigations as “test cases”.

                    1. Your comment appears to argue that Congress shouldn’t be investigating these matters; that this should be done via criminal referral to the DoJ in order to distribute power in a balanced fashion.

                      But the discussions we are having aren’t ‘ought’ they are ‘is.’

                      And the DoJ IS saying they won’t take any criminal referrals against the President because the President isn’t indictable. Whether that’s true or not; whether that’s a good idea or not, Congress has been rendered the only avenue of oversight against Presidential wrongdoing, criminal or otherwise.

                  2. This is in response to your May.23.2019 at 1:51 pm reply, the interface not allowing a direct one.

                    I now see what you are saying – but still have some difficulties.

                    Does the Congress have the power to investigate circumstances that might demonstrate “high crimes and misdemeanors” by POTUS? Definitely. And some of the pending investigations might qualify. (I about a year-and-a-half ago abandoned following most media coverage as it presented only *fire* and not *light* from either tribe, and thus am limited in knowledge of exactly what they consist.)

                    Some subjects though seem beyond “circumstances that might demonstrate ‘high crimes and misdemeanors’ by POTUS”. As examples: pre-01/20/17 actions likely don’t qualify (as any appropriate prosecutions, as you note, would have to be deferred until at least 01/20/21 or 01/20/2025, if then); and any asserted Emoluments violations. The former weren’t acts in DJT’s capacity as POTUS, and the latter are already the subject of a number of court proceedings. Congress ought not to pursue those classes of subjects – as well as non-POTUS actions already referred to an investigatory or prosecutorial body, unless those officials are subject to impeachment by Congress.

                    As I implied in a reply to Mr. Pollock today, I concur that any Bright Line is often difficult to draw. But I think there is somewhere a line in more than just shifting sand that requires being observed.

                2. “My recommendation was based upon the premise that Congress was *already* in possession of sufficient evidence – presumably a Reasonable Suspicion standard being sufficient – to indicate possible criminal wrongdoing. At that point then the referral should be made.”

                  OK. What I’m asking about is why you then assume that Congress can’t continue to investigate after the referral has been made?
                  Should state and federal prosecutors ALSO stop investigating, and presumably proceed directly to trial, as soon as they find evidence of a single crime?

                  1. Good point. Nuance is required, and I’d have to think more about a definite “formula” I would suggest.

                    The Dual Sovereignty issue (to which you might be alluding) is an interesting one. (It still remains to be partially addressed this month, doesn’t it?) I agree that it is clear that nothing a State or Federal prosecutor undertakes constrains Congress. And probably nothing that either class of prosecutor does constrains the other.

                    However, I think there should be some constraint on Congress based upon the difference in functions between it and the enforcement agencies. (It may well be though that the scope should only be limited in clearly-egregious situations, leaving the remedy for correction of abuses to the voters rather than the courts.) Fact Finding is clearly a power and duty of Congress in connection w/ prospective legislation – and also government oversight, w/ abuses of executive function to be primarily remedied by corrective legislation. But criminal investigation ought to be cautiously exercised as being a departure from the aforesaid functions.

                    In answer to your core question I would say that once Act A has been discovered, determined to likely constitute Criminal Violation X, and referred to an appropriate prosecutor, it should refrain from investigating for the accumulation of corroborating evidence of Criminal Violation X. However, if some of the facts constituting Act A also establish an element of Criminal Violation Y, then they certainly can continue to investigate the circumstances of Act A for the purpose of determining whether there is evidence to support the other elements of Criminal Violation Y. And if any facts disclosed during the investigation suggested that other ancillary lines of inquiry should be pursued, the investigation certainly ought to continue.

                    I know the above is confusing, even to me, and needs to be hammered out at more leisure. It does suggest that the scope of these investigatory powers is broad, but that there should be some rational connection between each step as well as to the enumerated powers and functions of Congress.

  7. Let’s be absolutely clear here. The Democrats want Trump’s tax records so they can release them in Congress and use them as political weapons.

    I would have no objection to Trump’s tax returns being examined by Congress in private. But I have no faith they would stay private. The Democrats are trying to weaponize the IRS as a political tool.

    If Democrats go down this road, the GOP will have no option but to respond. Members of Congress and key Democratic donors will also have their tax records “examined” for “completely legal purposes”…and released into the public record. Moreover, past and present Democratic government officials will have their records extensively examined for any possible enoulments clause violation…using the…extensive….definition being applied to Trump.

    1. Let’s be absolutely clear here:

      You’re hypothesizing about the future as an excuse for breaking the law now, while pretending that if your hypothesis wasn’t true, that you’d be perfectly fine with their actions.

      Your theory has not been proven true, and your partisanship has.

      Maybe you should keep your fantasies to yourself and let your betters do the talking.

      1. “You’re hypothesizing about the future”

        Please. I’m hypothesizing about the future like hypothesizing that a guy in a mask with a gun at a bank, who is pointing it at the teller is “Hypothesizing” that he’s robbing the bank.

        The Democrats and their followers have been screaming that “They’re gonna make Trump’s tax returns public” for years. But suddenly there’s a new “reason”? Uh huh.

        1. LOL.

          No kiddo,

          You’re hypothesizing that a guy who owns both a mask and a gun, is going to go rob a bank, and then give all the money to the poor and hungry children of the world to solve poverty once and for all because he had a fortune cookie the day before which said “You will do great things.”

          If there was REASONABLE suspicion that Congressional members planned on violating the law, then the police would already be acting upon it. As is, we’re just stuck here with your delusional, partisan ramblings assuring us that crimes are definitely going to be committed.

          How embarrassing for you.

          1. That’s the great thing though. It’s not “violating the law” to disclose them, via Article 1, Section 6.

            It weaponizes the hell out the IRS and law. But doesn’t actually break the law.

          2. “If there was REASONABLE suspicion that Congressional members planned on violating the law, then the police would already be acting upon it.”

            That’s laughable. The police might go after you or I on reasonable suspicion that we were going to violate the law, IF they had evidence to make a conspiracy case of it.

            They’re about as likely to go after a member of Congress on suspicion of intent to commit a crime, as they are to sprout wings and start doing laps around the Washington Monument.

            And, as Armchair points out, they have absolute immunity for statements on the floor of Congress, so, no crime.

      2. re: “You’re hypothesizing about the future as an excuse for breaking the law now”

        I’ll grant that Armchair is hypothesizing about the future. I fail to see where he/she is making any excuses for or even proposing to break the law now. Precisely what law-breaking are you talking about?

        1. Refusing to hand over the tax returns as the law requires upon written request by the Ways and Means Committee, and refusing a subpoena for the same information.

          While he does not directly state that Trump et al., should refuse to hand over the returns, his theory and tone certainly suggest that’s his POV. Also notice that he didn’t refute that he’s making an excuse to violate the law now, and he’s responded twice.

          1. When did congressional law trump the 4th amendment rights to be secure?

            1. What violation of the 4th amendment are you imagining?

          2. So, Jason, you are arguing that refusing to honor a subpoena that you believe to be illegitimate is per se illegal even before the legitimacy of the subpoena has been raised to a court.

            I think you’ll have a hard time winning a conviction on that standard.

            1. If the subpoena is believed to be illegitimate, then it should be challenged in court.

              Simply refusing to comply is not a legal process.

            2. ” you are arguing that refusing to honor a subpoena that you believe to be illegitimate is per se illegal even before the legitimacy of the subpoena has been raised to a court.”

              Yep, that’s pretty much the way the law works. If an invalid subpeona is offered, the legal way to deal with that is to ask a court with jurisdiction to quash it. Saying, “Um, no” and then wandering off is not.

              1. For two citizens in a court, yes. For the heads of two co-equal branches of government, … Which court do you take this to? Congressional subpoenas are not issued subject to any particular court. What sane judge is going to stick his/her face into that buzzsaw?

                Arguably, the proper court of redress is an impeachment proceeding. The subpoena came from Congress under Congress’s own power therefore Congress must also serve in the role of enforcer.

      3. You’re like those gun grabbers who say “You’re hypothesizing about the future when you say the left seeks to confiscate privately owned guns” after they’ve DIRECTLY TOLD YOU they intend to do so.

        1. Please cite a direct quote from any member of the Ways and Means Committee where they’ve stated that they intend to leak Trump’s tax returns after viewing them in closed session.

          1. Or, for that matter, that they want to confiscate (all) privately-owned guns.

    2. I don’t doubt that many Democrats want to release his taxes for political gain.

      But it’s also pretty clear to me that there are a lot of legislators who would like to legislatively create greater transparency requirements and the like.

      I don’t see a good reason to impair movement toward the latter on account of the former.

      1. What if, for example, in 1960, the southern Democrats decided for “transparency” they would obtain and release the tax returns of the civil rights leaders?

        1. “What if” is hard to answer. I’m not sure what you’re getting at. Releasing could raise First Amendment issues in some cases. I don’t think that would be so for obtaining.

          1. Point is, exposure of private financial information for political purposes is generally a bad idea.

        2. What if, A.L.?

          Do you contend there were scandalous things in those returns?

          1. Oh very scandalous. Or at least things that looked bad. Not illegal, per se. But some might take it the wrong way. And if some of those civil rights leaders decided…it wasn’t worth the exposure? Well, oh well.

      2. The constitution lays out three requirements for the presidential election. No legislative body can add to said requirements without constitutional amendments. Democrats are not proposing this action. Do you care to try again?

        1. Accessing and releasing government records isn’t a requirement at all.

    3. The person currently in charge of U.S. foreign policy as president :

      (1) Has a record as a failed businessman, close to total financial collapse multiple times in his life.

      (2) Has experienced difficulties with financing during his career because of multiple defaults and a tendency to use the legal system as a shield against his financial obligations.

      (3) Has shown an obsession with maintaining the appearance of financial success, to the extent of lying about his assets and pretending to be a fictitious alter-ego in calls to financial journalists. The behavior seems rooted in compulsive psychological need.

      (4) Has business interests in countries around the world.

      (5) Refuses to be transparent about his finances unlike every president in scores of years. Lied repeatedly to the American people by promising he would eventually release his financial records.

      (6) Bald-faced lied during the campaign about business dealing with Russia underway right up to the eve of the election. There are almost thirty instances of Trump lying thru his teeth about this to the American people while he ran for president.

      So, Trump toadies, please explain how doesn’t constitute grounds for congressional oversight……

      1. We have a failed businessman who in the course of two years in office,
        has the dow and sp500 at their highest historical levels
        Lowest black unemployment
        lowest minority unemployment,
        lowest overall unemployment
        booming economy
        Finally having a president that puts the US first
        Much greater sucess with NK
        Ended the bribery with the Iranian regime which enhanced the Iranian nuclear program.

        What else has the failed businessman who is now our president messed up.

        By the way – what did the successfull presidency of Obama accomplish?

        1. Focus, Joey, focus :

          (1) Trump’s history as a businessman is a mess.
          (2) Trump has repeatedly lied about his business dealings
          (3) Trump refuses to be transparent about his business dealings
          (4) Trump has business holdings worldwide
          (5) Trump is in charge of American foreign policy

          In what alternate universe is that not grounds for congressional oversight? Come on, Trump bootlickers, we know you can do better than Joe_Dallas, but can you give ANY valid reason whatsoever that why Trump is exempt from normal congressional oversight?

          1. 1) Since 1980, there have been three major real estate crashes. Its fairly common to have bankruptcies in real estate, so I would not consider it a mess. Several other very successfull businessmen have had bankruptcies.
            2) that is as a private individual
            3) It is a private business, not subject to public record
            4) so what – other presidents have had worldwide income, and lied about it. Hillary, while Sec of State, ran an extortion scheme through her foundation
            5) Obama controlled foreign policy during his time enriching the Iranian nuclear program.

            Lets focus on substantive matters.
            5

            1. Sigh. Give us a break, Mr. Dallas.

              Trump lied to the American People about his business dealings while running for President of the United States. Repeatedly he was asked specific questions about his financial affairs. Repeatedly he lied. Please explain while he alone – of all public officials – somehow gets a rain-check on basic oversight, particularly given the fact that nothing he says about his affairs can be trusted?

              1. He’s under basic oversight, the same as every other public official and American. IRS audits. Which are kept confidential, as is proper.

                1. If what he’s under is “the same as every other public official and American,” why is he the only president since Nixon to claim that he can’t release his tax returns?

                  1. He chooses not to. That doesn’t mean he isn’t under the same exact oversight as every other American. I choose not to make my tax returns public, despite also being under that oversight.

                    1. (1) The NY Times had a story on the origins of Trump’s wealth that ran page after page. One little paragraph recounted this: Trump owed 15 million dollars to Daddy, and there would have been a tax penalty if Fred just forgave the debt. So Donny sold Daddy 15 million worth of stake in property, waited a couple of years, and then bought it back for $10,000. There was example after example of this kind of crap, but Armchair Lawyer says Trump should be the only politician on the planet exempt from oversight. DJT ran a “university” which was merely a fraud & scam. He ran a “foundation” which was merely a fraud & scam. Hell, Trump Foundation paid $7 for Don Jr’s Boy Scout registration fee when Sonny was eleven, which takes corruption down to a hilariously grotesque level. But Armchair Lawyer insists we should blindly trust Trump. Oversight is the IRS’s job, per Armchair.
                      (2) Speaking of which : Today the Wall Street Journal reported audits of the highest-income households dropped sharply last year, to their lowest levels since the IRS began reporting that data in 2008. But Armchair Lawyer thinks the small odds of an audit is the ONLY scrutiny any politician should face. Armchair believes anything else is meanie and hurtful.
                      (3) Or does he? I’d like everyone to gather around and give a show of hands: Who here is gullible enough to believe Armchair would make the same “argument” with a Democrat in the White House?

                    2. 1) And….you may not like this sort of “crap” (IE, buying and selling property at a loss), but it’s entirely legal under the tax code, and commonly used to avoid taxes (especially back before the tax code was simplified). You think the IRS doesn’t know about it? Of course they do.
                      2. The President is automatically audited. The very rich are much more commonly audited.
                      3. I would make the same argument about the abuse of government power….especially use of the IRS as a political weapon….if a Democrat was in the White House. And have.

                    3. AL, 6% is not super common.

                      Your insistence that the discovery of a crime precede an investigation is ridiculous.

                      Based on your past legal theorizing on this blog, I don’t believe your 3) for a second. Your view of the law is a constantly transforming thing and takes whatever shape will keep Trump immune from it.

                    4. “Your insistence that the discovery of a crime precede an investigation is ridiculous.”

                      “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

                      What did you suppose that “probable cause” was probable cause OF, anyway? It’s probable cause to believe evidence of a crime will be found!

                    5. Brett, a subpoena isn’t a search in a non-criminal case. That’s like admin law 101.

                    6. Plus the Mueller Report lays out some pretty beefy probable causes

                    7. I’ll leave point 3 about what you think about my beliefs alone until you comprehend exactly what I said, as well as recent history.

                      Point 2 is really where you get scary. “your insistence discovery of a crime precede an investigation is ridiculous”

                      So….what would be the opposite? You don’t need evidence of a crime do to an investigation? You can just drag anyone you want, down to the station, and interrogate them, without any evidence of a crime? But just because “you don’t like the way they look”. Is your stance “They look guilty, they must be guilty of something, and if we investigate enough, we’ll find it”.

                      This is where Sarcastro goes full police state on us. Don’t irritate the police. Or else they’ll “investigate you” until they find something.

              2. Since when does “oversight” result from alleged political campaign lies?

                Do you really think that you can limit this type of fishing expedition to Trump?

          2. We get it you didnt vote for trump. Nothing you stated has any bearing on trump meeting the 3 requirements to be president per the constitution. spray you’re 2nd grade civics education skipped that part of the lesson.

            1. Geez. So if some meets the “three requirements to be President per the Constitution” then he is exempt from congressional oversight ?!?

              Someone here played hooky during civics class, but it sure as hell wasn’t me………

        2. “We have a failed businessman who in the course of two years in office,
          has the dow and sp500 at their highest historical levels
          Lowest black unemployment
          lowest minority unemployment,
          lowest overall unemployment
          booming economy”

          These are things the President has little to no control over. Might as well give him credit for the sun rising this morning, too.

          “Finally having a president that puts the US first
          Much greater sucess with NK
          Ended the bribery with the Iranian regime which enhanced the Iranian nuclear program.”

          These, on the other hand, are figments of the imagination. Hint: Donald Trump puts Donald Trump first, and doesn’t even go to great lengths to hide this.

      2. 1). And? So, people who declare bankruptcy should be required to publically disclose their tax returns?

        2) Ditto

        3) And? Relevance to his current presidency?

        4) As do most members of Congress, via one mechanism or another.

        5) And? How many Congressmen and Congresswomen have disclosed all their tax returns?

        6) A politician who lies? Surprise.

        1. Say you looked to create the perfect hypothetical example of a public official who warrants oversight and scrutiny because of possible conflict of interest. Not an average example, like officials undergoing real oversight at every level of government every day, but the uber-example :

          1. You start with someone whose career has been a tangled mess
          2. You’d make that person a compulsive liar
          3. That person would lie to the people he serves about his affairs
          4. He’d refuse even the most basic level of transparency.
          5. His position would be tailor-made for possible corruption

          Yep. Trump, Trump, Trump, Trump and Trump. There has got to be a Trumpian lickspittle out there who can explain why the same standard of oversight that applies to everyone else – from the county dogcatcher on up – somehow doesn’t apply to Trump. An explanation is all I’m asking for.

          Of course it has to make sense………

          1. Here’s the thing. Trump is under that same standard of oversight. IRS review and audits, like everyone else.

          2. I’d prefer to investigate the admitted coke and weed user whose wife had a job created for her in Chicago when he had oversight of the hospitals funding. But we didnt go into Obama’s tax records now did we?

            1. Obama published his tax returns, you moron.

              1. Not his accountant’s work product or his bank records.

                Or the records of his family members and book publisher.

                1. This slippery slope argument is pretty lame.

                  1. “This slippery slope argument is pretty lame.”

                    I wasn’t making it, just pointing out that the House is just not merely selling returns.

                    But since you raise it, I guess you have not learned from Reid partly ending the filibuster. The GOP will inevitably seek to get financial and other personal records from a future Dem president.

                    Action leads to reaction in politics.

                    1. Fear of a hyper-partisan GOP acting crazy is a ship that has sailed long ago. I do not think investigating Trump will make them any more or less investigation-happy than they already were.

                2. The House committee only sued for the accountant records because :

                  (1) Trump refused to publish his tax returns unlike every president or presidential candidate in the last (45) years.

                  (2) Trump ordered his Treasury Department toady to refuse a lawful request for the returns. This was under a law which lists no preconditions for Congress to request the returns and has no exceptions by which Treasury can refuse the request. Trump just told Mnuchin to flout the law.

                  So when you, Bob from Ohio, whinge about the House subpoenaing accountant records, you’re ignoring the actions by Trump which made that necessary. It’s an argument roughly analogous to the kid who kills his parents and demands mercy because he’s an orphan.

                  And ya gotta admit, Bob, that’s a pretty moronic argument to make…..

                  1. 1) No law requires Trump or any candidate to release tax records.
                    2) The subpoena goes far beyond just returns

                    1. So let’s get Bob’s sequence straight :

                      (1) You start with a president who financial history has been messy, frequently on the point of total collapse.

                      (2) You continue with a candidate / president who refused to provide the basic financial transparency and disclosure we’ve seen from everyone else for nearly a half-century.

                      (3) You continue with a candidate / president who lied thru his teeth when asked specific questions about his financial dealings during and after the campaign

                      (4) You continue with a president who told his Treasury Secretary to flout a clearly written law requiring his tax returns to be released to a House committee upon request.

                      And so the House Committee is forced to subpoena accountant records because of Trump’s disregard for decades of open-government precedence and his lawless intransigence. Then Bob piously whines because their subpoena was broader that what they would have received if Trump had just obeyed the damn law ?!?

                      Don’t that beat all…….

                  2. Actually, the subpoena is required to have a legitimate legislative purpose.

                    Asking for Trump’s personal finances from years before he back President is not a legitimate legislative purpose.

                    1. “Asking for Trump’s personal finances from years before he back President is not a legitimate legislative purpose.”

                      Is what a Trump lackey would say.

                    2. Do you ever participate in a discussion without resorting to ad hominems?

        2. “1). And? So, people who declare bankruptcy should be required to publically disclose their tax returns?”

          Did you not take bankruptcy and debtor relations? Take a look at what people who file bankruptcy are required to publicly disclose, and then come on back.

      3. Voters knew all of those things (with the exception of #6 which is a) still disputed and b) would not be revealed or confirmed by the disclosure of the requested financial records) and they voted for him anyway.

        When the voters have spoken, no, there are no further grounds for congressional oversight until and unless Congress decides to impeach the president.

        1. Except that your statement is entirely sui generis, and simply not true. Nothing in the Constitution even makes a suggestion that Congress’ power is so limited, and 220-some years of history demonstrate that that’s simply not how Congressional oversight has *ever* been conducted. So, sorry, but try again.

          1. 4th amendment doesnt exist in your world?

            1. Try to apply the 4th amendment to this case, and we’ll see.

          2. Interesting that you cite “220-some years of history”. Where, precisely, in that history do you find any examples of Congress actually exercising that authority over the President (outside of impeachment proceedings)? Because I look, for example, at the history of Emoluments Clause enforcement and see Presidents pushing back using the same logic as Trump all the way back to Washington.

        2. and they voted for him anyway.

          Uh, most of them didn’t.

          1. He got over 60% of the white vote. Hillary’s “popular vote” mainly consisted of blacks and Hispanics.

            1. Some friendly advice : Blacks and Hispanics voting doesn’t change the popular vote into the “popular vote”, however much you wish it did…….

              1. As a group, they act in ways that are hostile to America, and are really an outside force looking to undermine it. the vast majority do not share American values, and are not my countrymen.

                1. Okey-Dokey,
                  Three points :

                  (1) You’ve got it bassackwards, because it wasn’t Black and Hispanic votes which elected (as POTUS) a reality-TV star huckster buffoon who has sleaze and slime trailing behind him his entire life – along with the bungling and incompetent of his silver-spoon-mouth business career. I think the very White rubes in the countryside are more to blame for that.
                  (2) But – hey – that’s just my opinion, man, and those poor rubes remain my brother citizens – even if they do view the Presidency as WWF entertainment, rather than the Nation’s business.
                  (3) You on the other hand, troll as a racist clown. My bet? You’re well-behaved with perfectly pretty manners in real life, and being a racist clown is just how you have “fun” on the internets. Strange enough – but whatever floats your boat. As long as you leave minors and farm animals alone, I don’t care……..

          2. Yeah, 44.5% of the people who were registered to vote, didn’t.

            Of the people who did vote, Hillary got 48.18% of the votes, Trump got 46.09%. A measly 2.09% difference.

            If you want to say that “most” people didn’t vote for Trump, it’s about as true that “most” people didn’t vote for Hillary, either. At best she got a narrow plurality of the popular vote.

            1. Of the people who did vote, Hillary got 48.18% of the votes, Trump got 46.09%. A measly 2.09% difference.

              As always, Trumpkins have no argument besides whatabout Hillary. But we’re not talking about Hillary. We’re talking about Trump. And 54% of the voters did not want him.

              In other words, he was less popular than Mitt Romney, who nobody thought had some sort of mandate.

            2. A “measly 2.09% difference.”

              You know better, Brett. You want to calculate some standard errors here? With 135 million votes, a 2% margin is very large.

              At best she got a narrow plurality of the popular vote.

              At best? Face it. She got a plurality of the popular vote – significantly more votes than Trump.

              1. If you exclude low IQ blacks and Hispanics (which is 86% of them), Trump won by over 15 million votes.

                1. If I exclude morons like you his total probably drops by 20-30 million.

                  1. If you exclude the stupid-people vote, Trump is left without a party.

          3. Enough did that he won the election according to the rules at the time. Don’t like the Electoral College and would prefer a direct vote? Maybe I would, too. It doesn’t matter to the analysis above. None of that gives Congress the authority to second-guess our collective votes until and unless they take the step to impeachment.

            1. The electoral vote system has nothing whatsoever to do with whether or not Congress can investigate the President and his dealings and associates. Neither does voting to impeach (or not voting to impeach).

              Other than that, spot on.

              1. Oh, they can investigate all they want. But they can’t do anything about it until and unless they decide to impeach. And that includes enforcing any penalties* for non-compliance with the investigation.

                * In this context, “penalties” means direct sanctions such as would be levied by a judge. Congress has plenty of power to impose political penalties such as cutting funding or opposing favored policies. But they always have that power.

                1. Oh, they can investigate all they want. But they can’t do anything about it until and unless they decide to impeach. And that includes enforcing any penalties* for non-compliance with the investigation.

                  So Congress effectively has no oversight power at all, absent impeachment? We’ve just been doing it wrong with Congressional subpoenas all this time?

                2. “Oh, they can investigate all they want. But they can’t do anything about it until and unless they decide to impeach. And that includes enforcing any penalties* for non-compliance with the investigation.”

                  They can release information. An innocent person would want this. Trump doesn’t.

        3. So getting elected whitewashes everything?

          And Congress can’t conduct an investigation unless it first impeaches?

          That’s nonsense.

    4. Yeah. you are right. If this keeps up, Presidential candidates will just release their tax returns as a matter of course!

      1. Why stop there? Why not everyone? Congressmen? Cabinet Officials? Big time donors?

        1. I actually don’t see an issue with tax returns being public.

          1. You have to be kidding …

            1. He’s not. Sarcastro’s gone full total government control police state on us.

              1. Yes, AL, you’ve got me. I love 1984 and want it to happen to you.

                What a dumb strawman.

                1. Listen, I’m not the one who said that needing evidence of a crime to actually investigate is ridiculous. I’m not the one who insinuated that the police and FBI should be able to investigate without any evidence of a crime, but that they need to investigate to find the crime. You were.

                  Look, there goes an African American driver! Let’s pull him over to investigate to see if there’s a crime! What, there’s no reason to pull him over? No evidence of anything wrong? Balderdash, we need to investigate to find the crime!

                  1. We are talking about oversight of the executive, dude.

                    The FBI and police DO investigate without prior evidence all the time. Investigations are about gathering evidence.

                    Comparing Congress investigating the President to racial profiling is some silly, silly, business.

                  2. “Listen, I’m not the one who said that needing evidence of a crime to actually investigate is ridiculous”

                    You get evidence as a result of investigation. The policeman didn’t know Mr. Terry was carrying a gun until AFTER he frisked him. Before he was stopped and frisked, there was no evidence of the crime Mr. Terry was convicted of.

      2. Let’s release theirnmedical records too! What do they have to hide! And all their private emails!

      3. Yawn, another Resistance!!!!!! opinion.

        1. Yes, the only reason you’d want a President to release their tax returns is because you’re against all Trump does.

          1. This case does not involve tax returns but accounting records.

            1. But that’s not what Jon S was talking about.

              It’s just your knee-jerk reaction to anyone advocating for anything inconvenient for Trump – that they are arguing in bad faith and actually have it in for Trump personally.

              Tribal as hell.

              1. Your knee jerks pretty hard against Trump.

                Democrat who is an immigrant to boot issues opinion against someone who is hated pathologically by Democrats and whose signature issue is immigration. Darn right I assume bad faith, its been correct most of the time so far.

                1. Let’s go a step further. Virtually no non-whites are loyal to America.

                2. People have tried that on me before.
                  Yeah, Trump’s been amazingly good at doing stuff I hate. Partially substantively, but at least as much because he doesn’t care about following procedure, and I think procedure is the real heart of things. From his failure on APA to his disregard for oversight.

                  Plus he hasn’t done much of grand substance. Most of the time when he comes up around here it’s because he’s failing Admin Law 101 on some executive order, obstructing Congress, nominating a judge I disagree with, or tweeting some cockamamie partisan statement that’s legally impossible (but which many on here will nevertheless defend).

                  But as I said before, I thought the video he sent to Kim Jong Un was genius. I like his cutting off press access, though probably not for the same reason he does (access journalism is BS). He’s continued Obama’s policies on ISIS to great effect. He did some good disaster aid and commiserating…to red states at least.

                  1. “Plus he hasn’t done much of grand substance. ”

                    Of course not, without the Senate GOP ending the filibuster, what could pass pre-2019? A tax cut because there was no filibuster.

                    That is why the hair on fire reaction to him was and is pathological.

                    1. You keep crying about what Dems are going to do in your imagination, so why not throw away all norms.

                      I’m the one actually unhappy because our republic relies on norms and Trump is wrecking them to no substantive effect, but hollowing out how our country works.

                    2. “Of course not, without the Senate GOP ending the filibuster, what could pass pre-2019?”

                      The better-than-Obamacare health plan that was “set to go on day 1”?
                      Where did that go, anyway? Are they still making it even better than it was in 2016?

                3. “Your knee jerks pretty hard against Trump.”

                  This “you must be 100% with us or you’re against us” idea is the pathological one.

                  Trump is just not good at any part of the job, except for maybe one, and that one’s open to question (Is he actually any good at lying about his accomplishments? One the one hand, some people eat it up and say “yeah, so many accomplishments!”, and at the same time, some people openly laugh when he does it.)

    5. This is addressed specifically in the opinion, which quotes a handful of Supreme Court cases for variations on the proposition that an examining court has to assume “that the action of the legislative body was with a legitimate object, if it is capable of being so construed, and [the court] ha[s] no right to assume that the contrary was intended.” A district court isn’t free to ignore that just because you really, really don’t like the Democrats.

      1. There’s a difference between what it legally allowed, and what is politically a good idea.

        Legally, Congress can request, review, and ultimately publicize anyone’s tax returns. And if Democrats use it for political purposes, why shouldn’t Republicans respond? Perhaps select abortion providers will have their tax returns publicized? Because the public needs to know, right?

        1. Whose tax returns has Congress publicized, exactly?

          1. Well, this court case is ultimately about doing it to Trump’s tax returns…

            Once that door is open, well…

        2. There’s a difference between what it legally allowed, and what is politically a good idea.

          You know, A.L., I don’t think the Democrats give a FF about what you say is a good political strategy for them, all the more so because you prefer they follow bad strategies.

          why shouldn’t Republicans respond?

          They will, regardless. The Republicans will do whatever they want, whether the Democrats do it first or not, and they’ll always find some bogus, “He hit me first,” excuse.

          1. Bernard, perhaps I should clarify what I meant by politically a good idea.

            Politically a good idea “For the survival of the republic”.

            Now, the GOP hasn’t weaponized the IRS like the Democrats have in the past, or are trying to now. But just like when the Democrats decided to get rid of the fillibuster for judges, do not be surprised if the GOP reciprocates if Democrats break past political norms again.

            1. Without major civil service reform, the GOP can’t reciprocate, because the bureaucracy works for the Democrats even during Republican administrations.

              Who knows, maybe the next time Republicans have both chambers and the White house, they’ll be pissed off enough to enact that civil service reform, and return us to patronage days when the bureaucracy was responsive to whichever party was in power, and not just the same party all the time regardless of how elections turned out.

              1. the GOP can’t reciprocate, because the bureaucracy works for the Democrats even during Republican administrations.

                Right Brett. It’s all a part of the Giant Conspiracy.

            2. A.L.,

              If you think the GOP is a bunch of saints who only engage in dubious conduct when provoked you are deluded.

            3. “the GOP hasn’t weaponized the IRS like the Democrats have in the past, or are trying to now.”

              Are you reading Nixon out of history, or just out of the GOP?

    6. Maybe the tax records of Congressmen _should_ be public? At least, parts that can fairly inform voting decisions.

      1. Here’s the thing. LEGALLY…you’re correct. Just like legally, Congress can pack the Supreme Court if it wants.

        POLITICALLY…you’re weaponizing the IRS. And if Democrats in Congress weaponize the IRS like this, the repercussions are massive. Because why can’t the other party do the same thing LEGALLY to anyone they want?

        1. Edit. This belonged above. But…why stop with Congressmen? Why not…abortion clinic doctors? Shouldn’t they also have their tax returns be public?

          1. And all LGBTQDVCRE organizations as well. I also want their health records. We have a RIGHT to know if we’re paying for their PrEP drugs.

          2. Um. Are they running for high office?

            1. What does high office matter?

              Congress has the legal RIGHT to obtain anyone’s tax returns, not just those running for high office. And if Congress enters them into the public records, that’s their right too.

              Isn’t it? Or do people, all people, have a certain right to privacy for their tax records?

              1. Yes, Congress has the power to demand anyone’s tax records.

                Go ahead and start demanding all the records you want. But don’t pretend that you only did it because the Democrats asked for Trump’s.

                On a tangential issue, does it bother you at all that Trump repeatedly promised to release his returns, then made up patently false reasons for delay, and finally refuses completely? Does that affect your obvious deep admiration for that piece of human garbage, or not?

                1. The only pieces of garbage in New York are Schmucker, Bloombitch, Nadler, and Cuomo the homo.

              2. “do people, all people, have a certain right to privacy for their tax records?”

                To the extent that they do, they do because Congress said so. Take a look at Article I, Section 8. To whom is the power to lay and collect taxes granted? (Hint: It’s right at the beginning).

    7. Why are you talking about the IRS? Totally different case. Also an example where Trump and Mnuchin are simply disobeying the law. But beside the point.

      This case is about Trump’s past financial dealings, as described in testimony before Congress. Given that Trump has never disclosed these dealings and will lie brazenly about them, and given that there’s some concern that these dealings may influence Trump’s actions in office now, it seems obvious to me that Congress has every right to subpoena that information, for oversight purposes and for purposes of crafting new legislation.

      You may be happy with a corrupt president. Most people are not.

      1. however, Hillary ‘s pay for play extortion racket with the foundation never influenced her actions at the state department

        1. Umm? Evidence?

          I mean, it’s not like the GOP didn’t investigate her upside down and sideways, so what did they come up with?

        2. “however, Hillary ‘s”

          BUT WHAT ABOUT HILLARY!!!!! WAAAAAAAA!

          Newsflash: Hillary isn’t President.

    8. “Let’s be absolutely clear here. The Democrats want Trump’s tax records so they can release them in Congress and use them as political weapons.”

      Assuming that this is true (and it may well be), the next question is… so what? The moral of THAT story is “don’t run for public office if you’d be embarrassed to have the skeletons in your closet come out and dance.”

      It shouldn’t come as a surprise to anyone seeking (or, egads, holding) political power that other people might politically oppose you, and use the tools of political power to do so.

  8. Wouldn’t it just be easier to pass a law that no person who owns a business under any circumstance shall ever be allowed to be president, no president with income from the international sale of books shall ever be president, that a candidate and no person in his family ever have done business with an international corporation or bank….
    and so on

    1. The qualifications for being President are spelled out in the constitution. To make them more restrictive requires a constitutional amendment. A statute just won’t do it.

      1. That’s an assumption on your part.

  9. provided inflated financial statements to a bank to obtain a loan… But when it came time to calculate his real estate taxes,

    1) Financial statements and tax returns do not use the same basis for assets. Reasons, accounting lingo, mumbo-jumbo, ad absurdum, etc.

    2) Cohen is a convicted perjurer, which apparently makes his statements unreliable in any venue except Congress. Other than the Democrat equivalent of Spidey-sense, there is no reasonable suspicion that Congress will find actionable information regardless of the cost in money and lost productivity.

    3) Congress: We are not on a witch-hunt. We are invoking Congressional authority in an effort to investigate the validity of claims that certain women or other-gendered persons who identify as such may or may not have used other than non-magical means to cause certain other individuals party to the investigation to have impure thoughts at any time in the past or are planning to cause the aforementioned individuals to have such thoughts in the future. If the person(s) so investigated prove unwilling to cooperate, we may engage in the use of certain time-proven near-lethal water and/or stone based methods of information retrieval as have been used in previous investigations of a similar nature.

    1. 1) That’s often true, but you’d need to look at the documents to know whether or to what extent there are inconsistencies.

      2) Sounds like independently acquiring documents might help Congress determine the degree to which Cohen was truthful.

      3) wut?

      1. 1 & 2) Both of your statements are correct, but hasn’t Congress granted statutory authority to the agencies tasked with collecting and auditing this information? Being that Congress has delegated this power, it strikes me as odd when it is invoked to investigate the businesses of an opposing party President who, during all of the periods in question, held no political office and was in no position to evade the scrutiny of those agencies. Why are agency investigations sufficient for giant defense and infrastructure corporations who rely on government contracts and not for Trump companies? I don’t remember Congress ever asking the CEO of Boeing for his tax returns, and they are much more relevant to Congressional oversight than Trump’s.

        3) Just poking a bit of fun at the language of obfuscation.

        1. ” hasn’t Congress granted statutory authority to the agencies tasked with collecting and auditing this information?”

          If I give my kids permission to live in my house, does that mean that I can’t any more?

      2. The IRS already has oversight.

    2. “Other than the Democrat equivalent of Spidey-sense, there is no reasonable suspicion that Congress will find actionable information regardless of the cost in money and lost productivity.”

      Point to where in the Constitution it says that Congress has to have reasonable suspicion of anything before it can do anything. They can investigate election fraud, even if there’s no evidence that election fraud is currently threatening electoral outcomes, can’t they?

  10. A non-white, non-American judge appointed by a non-white, non-American President.

    1. Thank you again, Volokh Conspiracy, for providing a forum at which unvarnished conservative thought is exposed for a broader audience.

    2. Dude, when you going to get it? A citizen is a citizen. And yes, that would make every citizen your countrymen by definition. Doesn’t make him/her/xer your drinking buddy, or given them license to date your daughter, but it is what it is.

      1. When are YOU going to get it? “Citizen” or not, I’ll NEVER consider them my countrymen. And once America collapses from fiscal instability, which it will, I will advocate for creating a new ethnostate that excludes all of my former “countrymen.”

        1. Dude, I hate to break it to you, but the people who would want to live in that ethnostate you pine for wouldn’t allow you in.

          1. I’m not talking about an ethnostate of neo-Nazis, but of people who recognize the realities of race and don’t think that a nation of 90 IQ mestizos will be the same nation as the historic America.

            1. I’m not talking about an ethnostate of neo-Nazis

              Yes you are.

              1. No, I’m not. I’m talking about an ethnostate where whites recognize that non-whites are not capable of coexisting in large numbers, and set standards accordingly. That means that the failure of blacks and Hispanics would not be seen as a moral failing by society, but an inherent result of their low IQs.

                1. As is your failure.

                  1. I have three Ivy League degrees and a successful small business. I am married to a woman, and have extremely bright children. I don’t collect food stamps and I don’t have an Obamaphone. I pay 20 times more in taxes in one year than the average black single mother pays in a lifetime.

                    1. I very much believe everything you say. You are very credible.

                    2. And yet for all your supposed indicia of success, you choose to be a vastly worse person than anyone else on this blog.

                      Sad.

                    3. Amazing that you find time to run a business and spew so much crap here. (I’m retired, btw, so I’ve got lots of time.)

                    4. And yet you’re bitter about your failure. Sad.

      2. That’s not to say I’ll be successful at it, but for most of human history, people understood that race matters. It’s not an irrelevant characteristic like what colored shirts you like to wear. And while non-whites understand this and advocate for their own racial interests, whites don’t, leading to the Western suicide today.

        1. America never was, and thus never can be, an ethnostate.

          You can go right on ahead wishing for a financial collapse, with all the associated problems, but be careful, because it may not end up the way you think it will end up. You’re just as likely to get a French Revolution run by cultural marxists as some sort of flowering of liberty.

          1. It wasn’t legally, but the founders understood that race matters, and that the races are different. They didn’t say it directly because they didn’t think we’d be stupid enough to replace ourselves through immigration and dysgenic welfare policies.

            And yes, I think there will be a period of pain after a collapse, but I think Americans are too resilient to allow a French Revolution type takeover.

            1. That’s a lot of hope you put in “I think Americans are to resilient…”

              These are the same Americans who allowed themselves to be demographically replaced, as you note.

              1. They allowed themselves out of complacency. They never supported it. That was foisted on them by the elites. The average white American in 1965 would not have said “yes” to a question “Do you want your progeny to be replaced by peasant Aztecs and Mayans?

  11. The question before the court was whether the President was entitled to a preliminary injunction. He clearly was. To add insult to injury, the court declined to grant a stay pending appeal. It is unfortunate that the President has to contend with a resistance judiciary. What a disgraceful legacy left by the prior administration.

    1. #ObamaStillWinning

      1. Is there anyone sane commenting on this site?

        1. Gresham’s Law, bad commenters drive away good. Some threads do still attract libertarian and, yes, reasoned replies.

          1. Volokh has the same crowd, like old men at a diner on Saturday morning, that ported over from the Washington Compost and even back from their old website. Some Reason regulars have joined though.

            1. Not entirely the same crowd. He doesn’t have Artie Ray Lee Wayne Jim-Bob Kirkland to kick around anymore . . . because he kicked Artie Ray out.

              In the most champion-of-free-speech way possible, of course.

              1. Can you self-deport while you’re at it?

                You want free speech? Start you’re own blog. That would be the libertarian answer. But both you and I know you wouldn’t get the same audience.

                1. The point is the hypocrisy of a partisan censor (the Volokh Conspiracy) that proclaims repeatedly about championing freedom of expression.

                2. “You want free speech? Start you’re own blog.”

                  Sure. 100%.

                  But pointing out that people who claim to be in favor of free speech nevertheless indulge in censorship where they have the power to do so is not quite the same thing.

  12. Sure Congress has a broad investigative power, but why drag James Buchanan into it?

    Buchanan used the usual methods of bribery to get his proslavery bills passed, as Covode and his fellow investigators discovered.

    Among other things, this helped inspire Congress to close off one opportunity for bribery – federal printing contracts for favored newspapermen. I think the Government Printing Office was established as an alternative to such cronyism.

    And simultaneously, the exposure of Democratic corruption was useful in an election year, at a time when Republicans hadn’t had as much time as the Democrats to indulge themselves in that sort of corruption and hence could pose as reformers.

    I suppose their broad investigative powers lets them investigate Trump too, but so far they don’t seem to be looking for Buchanan style corruption. If Trump has bought off Congresscritters, I would certainly like to know about it.

  13. The flipside is that the true purpose of executive acts won’t be reviewable either, as long as there is a facially valid purpose. And it’s scary to give Trump that level of oversight-free authority…

    1. The flipside is that the true purpose of executive acts won’t be reviewable either, as long as there is a facially valid purpose. And it’s scary to give Trump that level of oversight-free authority…

      So we can’t have oversight because it would free Trump from oversight?

      These arguments from Trumpists get dumber and dumber.

      Besides, SCOTUS already said the “true purpose” of EO’s doesn’t matter, at least for their buddy, Trump.

  14. IANAL. Can someone please help me understand why Congress only needs to show a “facially valid” legislative purpose, but in seemingly every other case everything the Trump administration does is labeled pretextual and scrutinized for any whisper (or less) of animus? Do the terms arbitrary and capricious not apply to Congress?

    1. (i) Longstanding Supreme Court precedent that was quoted at length in the opinion.

      (ii) You may have noticed that the Supreme Court ignored Trump openly expressing animus and allowed him to institute his Muslim ban based on his pretextual reasoning.

      1. And you’re ignoring district judges still applying the standard despite the ussc. There is a continued reason liberals file in California.

        1. Of course; it’s the same reason conservatives file in Texas. But what does that have to do with the case at bar, which is between two government bodies that both sit in D.C. and that was filed in the D.D.C.?

    2. The terms arbitrary and capricious DO apply to many federal judges.

      Trump is likely to win at the Supreme court level, I suspect, just as with the travel ban. His problem is that the lower courts will try to make that victory hollow by getting the records released before the Supreme court can weigh in.

    3. Do the terms arbitrary and capricious not apply to Congress?

      They do not. “Arbitrary and capricious” is the standard imposed by statute (the Administrative Procedures Act) on executive agencies. It does not apply to Congress.

      1. Yes, and courts have basically never used this review until Trump got into office. Now suddenly everything he does, including reversing Hussein Obama’s EOs is “arbitrary and capricious.”

        1. That’s because previous administrations didn’t rule by caprice.

          1. By “rule by caprice,” you mean “implement non-liberal policies.”

            IT was just as “arbitrary and capricious” for Obongo to decide that Title IX protects mentally ill boys in the girls’ locker rooms.

            1. No, I mean that “pwn the libs” is an actual thing without meaningful parallel of prior administrations doing things for the primary purpose of making their supporters happy about how unhappy they’re making the rest of the country.

              1. Most gun laws are done to “pwn the cons.” No one sincerely believes that banning collapsible stocks will reduce crime. The left supports gun laws because it’s a way of sticking their thumbs in conservatives’ eyes.

        2. Yes, and courts have basically never used this review until Trump got into office.

          You couldn’t be wronger if you were Arthur Kirkland. APA suits were ubiquitous.

          Now suddenly everything he does, including reversing Hussein Obama’s EOs is “arbitrary and capricious.”

          That’s because Trump is as incompetent a president as he was a businessperson. He doesn’t hire competent people and doesn’t know what he’s doing. The president doesn’t just get to make decisions based on whim and then say, “Make it so” to his flunkies; valid regulation under the APA takes a lot of work. Trump doesn’t have the patience or attention span for that, so he fails to do that work and his actions get blocked.

          1. No, he gets blocked because the judiciary is full of Obongo appointees who don’t like his policy reversals. It has nothing to do with competence, and you know it.

    4. “Do the terms arbitrary and capricious not apply to Congress?”

      They do not. These words come from the Administrative Procedures Act, which regulates how executive agencies work. Congress routinely exempts itself from laws that it passes to regulate others. (You can assume that they do so for selfish reasons, or you can assume that they do it so that the Executive Branch can’t use these levers to control Congress and its members.)

  15. Charles Foster Kane Donald John Trump is a scoundrel. His paper news channel should be run out of town. A committee should be formed to boycott him. You may, if you can form such a committee, put me down for a contribution of one thousand dollars.

    Nobody cared when Clinton was impeached over an idiotic thing. This isn’t the first abuse of the power of government to investigate one’s political opponents, and it won’t be the last. So long, 4th Amendment. You only had real meaning in the context of the powerful using government investigation to hurt each other.

    1. Wrong, to an fair extent, on Clinton’s impeachment. Even if Ken Star was the 90’s version of the Russian collusion investigation, Bill Clinton did lie under oath, something that you and I would go to prison for. He could have avoided impeachment had to owned up the his affair. So, in effect, it wasn’t “nothing,” unless of course you think the president is above the law.

      1. It was a bit more than just the perjury, but the rest of it was in line with that.

        I suspect he wouldn’t have been impeached over his obstruction in the Paula Jones case, if not for the fact that there had been so many preceding scandals where the investigations had ground to a halt in what looked like successful obstruction of justice. Then in the Paula Jones case you have proof, not just that he obstructed justice, but that he had the White house staff leaping into action like a well oiled justice obstructing machine, and had nearly succeeded in destroying all the evidence.

        The obstruction of justice in that case became a proxy for all the prior cases where he’d successfully obstructed justice.

        1. And these same people complain about obstruction of justice when Trump allegedly does it.

          1. So we’re into the “Look, Bill Clinton!” phase of Trump’s defense.

            Laughable.

            1. The electorate in 1999 set the precedent, by giving Clinton a 73% approval rating after his trial.

      2. What were the consequences of Clinton succeeding, aside from having a 73% approval rate after his trial?

        https://www.kitsapsun.com/story/opinion/columnists/2016/05/20/john-kass-moral-outrage-starts-with-clinton/94300146/

        Just consider the mental gymnastics it takes to excuse perjury in a sitting president.

        Not only was liar Bill Clinton defended, but he also was politically rehabilitated by many of the same actors, by feminists and by the Democratic insiders.

        Hillary and Bill and their meat puppets told us then that character didn’t matter. It was all a private thing.

        So if Hillary Clinton and her meat puppets wonder about what happened to character and outrage in politics, all they have to do is this:

        Just look in the mirror.

      3. ” He could have avoided impeachment had to owned up the his affair.”

        That’s an interesting interpretation of the facts. Kind of like “Saddam Hussein could have avoided the invasion of his country by just abandoning his chemical weapons.”

  16. These are facially valid legislative purposes, and it is not for the court to question whether the Committee’s actions are truly motivated by political considerations.

    Now if only courts would apply the same reasoning when considering Trump’s actions, rather than delving deep into his soul to divine what his real motivation is.

    1. They did.

      https://www.oyez.org/cases/2017/17-965

      Did you miss that one?

    2. Now if only courts would apply the same reasoning when considering Trump’s actions, rather than delving deep into his soul to divine what his real motivation is.

      Delving deep into his soul by… reading what he says on Twitter.

  17. It is getting to the point where the anti-Trump bias of Reason and Volokh are making it difficult to continue to visit the site. I have no problem with criticism of Trump, but not once in the past several months have I seen a pro-Trump article. Maybe I missed it, but I doubt it.

    1. I’m confused. Would you like VC to run a story about how Trump actually won in court yesterday even though he lost, or would you like them to just find things to praise about Trump to balance out any court decision that goes against him?

    2. Don’t let the door hit you …..

    3. What did he do do deserve one?

      And I don’t recall you being here before, anyway. Regardless, you won’t be missed.

    4. but not once in the past several months have I seen a pro-Trump article.

      Strangely, they also rarely praise Lenin, Mussolini, and Charles Manson.

    5. ” not once in the past several months have I seen a pro-Trump article.”

      What, specifically, should they have been pro-Trump about? What has he, personally, accomplished?

  18. More double standards.

    The legal reasoning here makes sense as far as I can tell. What it really amounts to is that the supposed “legitimate legislative purpose” is illusory, the purpose does not have to be legitimate or legislative in any way. Instead, it can just be a pure political witch hunt or an “inquiry” regarding potential impeachment.

    So anyone that stands up to Congress and poses a serious political challenge to them or the entrenched deep state can just be investigated endlessly, and all of their private personal information can be made public for political reasons. The only check on this is political through elections.

    The problem is that the courts don’t apply the same view to Trump’s executive powers. Instead, they consistently apply the extreme opposite view, o a degree that’s far beyond absurd. And this right after they took an absurdly expansive view of Obama’s executive powers. DACA was an egregious abuse of executive authority, and those defending it strenuously insisted that a future president could easily reverse it. That was their grounds they offered for why DACA was legitimate. And yet — Surprise!! Trump isn’t allowed to repeal DACA. He’s not allowed to roll back an egregious executive overreach and restore a modicum of rule of law to our constitutional order.

    In summary, rule of law is now a myth in this country, there is no justice or semblance of constitutional fidelity.

    1. Trump is arguing it’s illegitimate that he be investigated, and legitimate that he investigate the investigators and kinda pressure other countries to create trouble for his political opponents.

      Congress is arguing they get to investigate their co-equal branch of government.

      Caterwauling about double standards without setting forth a clear neutral procedure you prefer is just partisan hot air. Everyone thinks their side is being treated unfairly. DACA was an egregious abuse of executive authority is obvious only to partisans.

      So what do you think should be the standard for Congressional investigations, and Providentially-ordered DoJ investigations?

      1. “Trump is arguing it’s illegitimate that he be investigated, and legitimate that he investigate the investigators and kinda pressure other countries to create trouble for his political opponents.”

        On the second point, it’s time to read your Constitution again. “The executive Power shall be vested in a President of the United States of America.” Please tell me which of the three branches of government the FBI and DOJ belong to. But should the investigators be investigated? Well, Comey and the gang spied on political opponents and used false intelligence to do it. There’s evidence they knew better about that intelligence. So there’s plenty to look into there. And if you’re going to argue that Trump’s “ties” to Russia merited investigation, well sorry but Biden’s ties to Ukraine and China are 1000x more real and not fake. Even Peter Strzok admitted long ago there was no “there” there on Trump-Russia, it was always just a wild conspiracy theory hoax and that was obvious to most from the beginning.

        On the first point, I agree Congress the power to conduct political witch hunts against people. Going by what Adler says it seems Trump is making a losing argument, but even so, he’d be negligent not to make it.

        “Congress is arguing they get to investigate their co-equal branch of government.”

        Wrong. They are not investigating the executive branch, the IRS, the FBI, the DOJ, or anything the President did as President. They are investigating an individual regarding things done as a private citizen. This is maybe justified by the fact that the individual became a politician later on and then President.

        “So what do you think should be the standard for Congressional investigations, and Providentially-ordered DoJ investigations?”

        I think I already answered this. I’m inclined to assume Adler is correct. The standard for Congressional investigations is essentially there is no standard. They can conduct political witch hunt investigations, based on next to nothing. Maybe, the person has to rise to the level of being a political/public figure first?

        1. Ah. So we’re caught between can and should, are we? Do you think there should be the rules constraining the President from using the FBI like his own personal goon squad if he so desires? I think there should be constraints.

          Your procedures shouldn’t rely on factual predicates. That you continue to go on about the collusion hoax and the 1000x more real and not fake Biden thing is immaterial, though a telling distraction attempt.

          You are arguing that there is no right to find out if the President is a crook. I disagree.

          But if your entire analysis here amounts to ‘it’s legal, but not faiir!’ with your evidence being repeating, once again, your extremely partisan worldview, I dunno why you bother.

          1. “Ah. So we’re caught between can and should, are we? Do you think there should be the rules constraining the President from using the FBI like his own personal goon squad if he so desires? I think there should be constraints.”

            Congress can and does write whatever laws it wants, including laws that constrain the President, the FBI, and so on who are all obligated to faithfully execute those laws. They have to legislate to do that, though. Do you think there should be rules constraining Congress from using its investigatory powers to persecute individuals and engage in McCarthyism?

            “Your procedures shouldn’t rely on factual predicates. That you continue to go on about the collusion hoax and the 1000x more real and not fake Biden thing is immaterial, though a telling distraction attempt.”

            Procedures rely on factual predicates all the time, like whether there is probable cause. Or reasonable suspicion. For the collusion hoax, it’s questionable. For Biden, there’s 1000x more evidence.

            “You are arguing that there is no right to find out if the President is a crook. I disagree.”

            Wrong. I’ve stated the opposite twice now: I assume there are no real limits to Congress’ power to investigate, or conduct a political witch hunt, or investigate baseless conspiracy theory hoaxes.

            But it’s extremely embarrassing for you that this is the line you are taking, after an extremely comprehensive 2-year special counsel investigation just concluded (and longer before that), complete with:

            – Surveillance of the Trump campaign
            – pre-dawn raids of Trump associates’ homes
            – ransacking ransacking of Trump’s personal attorney’s office
            – maximum pressure with threat of long prison sentences brought against Trump associates to “flip” and cough up any conceivable incriminating or merely unflattering tidbits about Trump to damage him politically

            But yeah, I’m sure the NEXT investigation will uncover the secret conspiracies and crimes that you imagine exist but have no evidence for.

            1. I’m asking ought, and you keep dodging. Shows how little you care about anything except puffing your own partisan-distorted world, where the conservatives are ever persecuted and Dems are always guilty of corruption.

              Procedures rely on factual predicates all the time, like whether there is probable cause. Or reasonable suspicion
              Those appear in the rules of criminal procedure, but they are fact based determinations without a procedure of their own. But which you use when is indeed a set of rules that does not change based on how guilty the guy you’re going after is.

              But it’s extremely embarrassing for you that this is the line you are taking
              Thanks for your concern, but I’d be more embarrassed if I were the one arguing the Mueller report was actually super good for Trump.

              I was trying to take your ‘the other side gets away with everything my side is every persecuted’ post and turn it into a policy discussion. But it’s clear you have no interest in anything other than taking partisan shots based on a worldview that’s out of sync with reality.

              1. “I’m asking ought, and you keep dodging.”

                Oh, you’re asking if I think this Congress ought be further investigating the Russia collusion delusion? Uhhh, no, I thought that would have been abundantly clear. But as you know, their thinking will be more in terms of strategy: is “Russia hoax 4eva!” and/or impeachment a good strategy in the long term to damage President Trump and gain political power, or is it in the best interests of the U.S. or the progressive cause or whatever? I don’t know. I suppose, if they believe that it is, then they should proceed. If I were their opponent and believed this would backfire, then I would also say they ought to proceed.

                Or, perhaps you’re asking whether there “ought” to be more limits on Congress’ investigation powers? I suspect that may be a good idea, but I’m not sure what it would look like.

                “Shows how little you care about anything except puffing your own partisan-distorted world, where the conservatives are ever persecuted and Dems are always guilty of corruption.”

                I never said anything of the sort, of course, but you’re unable to dispute any of my factual points so you resort to this straw man. Pretty unimpressive.

          2. What, exactly, is the legitimate legislative purpose of this “investigation”? There is no oversight of the Executive in these actions; instead, they are targeted at a private individual before his involvement in politics.
            What legislation would result from this “investigation”? Congress has no inherent authority to change the requirements to be President – that’d be a constitutional amendment.

            What this seems to be trying to do is establish a politically controlled investigative authority outside the executive branch – something forbidden by the Constitution.
            If Congress wants an investigation done, they can ask the Executive to investigate. If the Executive refuses, then Congress can impeach – THAT is their remedy for disagreement.

    2. “The problem is that the courts don’t apply the same view to Trump’s executive powers”

      You skipped a step. Why should they treat two different things as if they were the same?

      In our federal system, Congress is tasked with deciding what we should do, and the President is tasked with deciding how to do it.

      In making decisions, it is a maxim that you get better decisions when you have better information. So information-gathering is a function of decision-making. (Well, good decision-making, anyway. Sometimes politicians, like others, start with the conclusions they want and don’t seek information that might suggest a different conclusion.)

      In the instant case, we have a President who insists on acting like a guilty person, with something (or several somethings) to hide. Some folks have already decided… Mr. Trump is their guy, and they don’t want anything inconveniencing him, and his lies are all they need to know. Some OTHER folks have also already decided, Mr. Trump is a scoundrel and a cad and a bounder, and nothing he does is acceptable and all must be opposed. Yet other people would like to know if Trump is a liar who lies to hide criminality, or just a liar who lies to hide insecurity. Investigations are for that last group, who’d like information before reaching conclusions.

  19. I agree with Mr. Adler. However, checking the subpoena is easy.

    Simple way around this. Have the IRS and SEC issue orders to Mazars that should they comply with the subpoena they and all partners will be forever barred from practice before the respective agency. Essentially the firm and its partners would no longer be able to earn a living. Guess what they will choose to do.

    Only the executive branch has enforcement powers.

    1. On what ground would they bar Mazars and its partners from practice before the IRS and SEC?

      1. On what ground did the IRS under the Obama Admin put tea party 501(c)3 applications on BOLO lists and defer acceptance for multiple years?

        The obvious solution to this problem is the libertarian principle of reduce the size of government. If the federal government is made smaller, no one will care who runs for president, the house or the senate and they most certainly will not care about their tax returns

        1. They put “tea party” on BOLO lists for the same reason they put “ACORN Successors,” “green energy,” “progressive” and “medical marijuana” on BOLO lists: because it made sense as a shorthand screening tool for groups that may have had more political rather than charitable purposes, which is why they’d been doing it since 2004. Seriously, all of this was covered in the news media at the time. I’m not sure what relevance you think that has to barring Mazars partners from practicing before the IRS.

          1. Don’t question the IRS narrative. You are insulting the Trumpist religion.

            It’s interesting that many of those groups actually were breaking the law, but these guys don’t care.

        2. “On what ground did the IRS under the Obama Admin put tea party 501(c)3 applications on BOLO lists and defer acceptance for multiple years?”

          They held off on granting tax-free status to groups that advocated for eliminating taxes. In other news, the Justice department puts people on BOLO lists just for advocating the violent overthrow of the government, and the Border Patrol puts people on BOLO lists just for advocating illegal immigration.
          If you advocate against the job of an agency, they’re going to notice and pay attention to you.
          I’ve been highly critical of Ajit Pai’s “leadership” of the FCC. If I had a pending application for a broadcast license, I might expect it to undergo some scrutiny.

    2. Now this is precisely the type of commentary that makes a right-wing blog worthwhile! Thank you, JeffreyL.

      1. Thanks Rev.

    3. ” Have the IRS and SEC issue orders to Mazars that should they comply with the subpoena they and all partners will be forever barred from practice before the respective agency.”

      Forever, or 2021, whichever comes first.

      There are a couple of problems with your “solution”. If you establish the idea that businesses and individuals can be punished for complying with a subpeona, you throw a rather large monkey wrench into the legal system.

      You also seem to be forgetting that Congress can respond. (Much like the way Mr. Trump forgot that other countries can respond when he starts messing with tariffs.) How will the heads of these agencies respond when Congress expressly resets their salaries to $1 (Since Congress alone has the power to appropriate funds.)

  20. All of this is adding pressure for Congress to open an impeachment inquiry. And maybe that’s the intent. It would be a truly novel position to assert, in that case, that Congress has no Constitutional authority to investigate the president in order to determine whether or not he has committed any impeachable offenses.

    1. I’d just argue that they need some genuine indication of impeachable offenses in order to justify opening the investigation.

      And that’s lacking, aside from their just hating him.

      1. The Mueller report provides more than enough genuine indications.

        1. Only if you’re a retarded liberal.

          1. The guy who co-founded the Freedom Caucus is a retarded liberal?

      2. Loathing seemed to be sufficient justification for investigating the Clintons.

      3. And you seriously claim you’re not of the Trump Can Do No Wrong school?

        What a load. There is every indication in the Mueller report of Trump’s wrongdoing, as hundreds of former prosecutors – say? All “rabid Democrats,” I suppose.

  21. I don’t understand the reference to legislative power. Impeachment is clearly not a legislative act, yet it is an express constitutional power. Why would investigation have to be justified as a legislative act to be constitutional?

  22. How can this judge not recuse themselves after being a heavy donor to the Obama/Biden campaigns?

    Also

    financial information is relevant to the legislature’s authority to determine whether foreign emoluments are to be permitted and under what conditions

    What a joke of a statement by Adler. They subpoened’ anything and everything going back a decade. How is Tiffany Trump’s debit card transactions from ten years relevant to that?

    Adler’s analysis, like everyone on lawfareblog, is skewed by anti-Trump animus.

    1. Being a donor doesn’t mean you swear allegiance to take up arms against all enemies for ever. This is like those arguing a gay judge can’t rule on anything involving gay rights.
      You keep on like this, I’d bet you’ll be pretty unhappy with how many Trump judges have to recuse under your rubric.

      I’m just glad you’re here with your clear-eyed animus-free insights.

      Dunno what the deal is with the decade time-span, but given how complicated finances can get, not ridiculous at all if you’re checking for what current payments implicate the President’s financial interests.

      1. A gay judge shouldn’t be allowed to rule on anything involving gay rights, just like black judges shouldn’t be allowed to hear affirmative action cases. The fact is, only white, straight men are capable of divorcing themselves from their tribal loyalties. No one else is.

  23. The VC’ers frequently criticize Trump. A few are “never-Trump” conservatives.

    The commenters, though, are always-Trumpers. In general commenting has degenerated since Volokh moved to Reason.

    1. captcrisis, I have to agree.

    2. Yes. There are an awful of Trump Can Do No Wrong types here.

      1. Coming from the political party that considers two men who buy a house together and purchase children to be “raising a family,” that’s funny.

      2. Trump can do plenty of wrong. I’m just not prepared to throw out the legal protections we have in place for a fair and just law system, because liberals don’t like Trump.

        1. And all of those protections will be thrown out temporarily, and restored the moment a Democrap gets into office.

        2. Trump can do plenty of wrong.

          IIRC, you are one of those who claims the Mueller report exonerated Trump, so I don’t think you believe he can do wrong.

          Leaving that aside, how would you suggest Congress proceed to investigate whether impeachment is justified, other than by gathering evidence?

          1. I do think Trump can do wrong, and I would’ve preferred just about any other GOP candidate win in 2016.

            But, IIRC, you were very strongly asserting that Trump colluded with Russia. And in the words of the Mueller report “The evidence is not sufficient to support criminal chartes”. So….

            And leaving that aside, one might consider a 2 year long, $30 million dollar plus investigation should be sufficient to gather evidence. And when that evidence is not sufficient, you….demand more investigations?

            Perhaps, just perhaps, you should actually begin impeachment proceedings with specific charges. Then an investigation could be limited to those charges. As opposed to fishing expeditions, which begin to look like they’re violating the 4th amendment.

      3. Oh, he can do plenty that’s wrong.

        But you have to prove he did it, not just assume he’s guilty because he’s Trump.

        1. he can do plenty that’s wrong.

          No, Brett, you don’t believe that, not if you can look at the Mueller report and claim he was exonerated.

          But you have to prove he did it, not just assume he’s guilty because he’s Trump.

          And you have to investigate to get that proof. You can’t say “prove it,” and then deny access to evidence.

          I take that back. You, Brett Bellmore, can and do, but it makes no sense.

  24. The coup attempt continues.
    Perhaps the DemocRats want this to be the new standard… when their candidate gets in. Count on it, a$$holes.
    Enjoying your Mueller lite hangover? Your Barr bill has come due.

    1. It’s long been time to become the monsters that liberals claim we are.

    2. “Perhaps the DemocRats want this to be the new standard… when their candidate gets in.”

      You mean, investigating a president’s financial dealings from before he came into office? Gosh, what would _that_ look like?

      https://en.wikipedia.org/wiki/Whitewater_controversy

    3. “Count on it, a$$holes.”

      I guess the Volokh Conspiracy’s standards for comments aren’t what they were . . . a few weeks ago.

  25. Link

    This is what non-whites do when they get into power. Advocate for the interests of their race.

    1. And how are they different than what you do all the time?

  26. Mehta: “On April 15, 2019, the Committee on Oversight and Reform of the House of Representatives issued a subpoena for records to Mazars USA LLP, a firm that has provided accounting services to President Trump. The subpoena called for Mazars to produce financial records and other documents relating to President Trump personally as well as various associated businesses and entities dating back to 2011—years before he declared his candidacy for office. The decision to issue the subpoena came about after the President’s former lawyer and confidant, Michael Cohen, testified before the House Oversight Committee that the President routinely would alter the estimated value of his assets and liabilities on financial statements, depending on the purpose for which a statement was needed. For instance, Cohen said that the President provided inflated financial statements to a bank to obtain a loan to purchase a National Football League franchise. But when it came time to calculate his real estate taxes, the President would deflate the value of certain assets. To support his accusations, Cohen produced financial statements from 2011, 2012, and 2013, at least two of which were prepared by Mazars.”

    Adler: “Assuming Congress must be able to identify a legitimate legislative purpose when seeking such information, Judge Mehta is correct to conclude that that any such requirement is amply satisfied here. The President is not a private individual. His financial information is relevant to the legislature’s authority to determine whether foreign emoluments are to be permitted and under what conditions, as well as to whether presidential conduct implicates his oath of office or could justify an impeachment inquiry.”

    What?

    The Democrats are seeking private financial records of private citizen Trump years before he served as POTUS. By definition, these records have nothing to do with the Emoluments Clause or “presidential conduct [which] implicates his oath of office or could justify an impeachment inquiry.”

  27. AL: Listen, I’m not the one who said that needing evidence of a crime to actually investigate is ridiculous. I’m not the one who insinuated that the police and FBI should be able to investigate without any evidence of a crime, but that they need to investigate to find the crime. You were.

    Look, there goes an African American driver! Let’s pull him over to investigate to see if there’s a crime! What, there’s no reason to pull him over? No evidence of anything wrong? Balderdash, we need to investigate to find the crime!

    We are talking about oversight of the executive, dude.

    The FBI and police DO investigate without prior evidence all the time. Investigations are about gathering evidence. No way you’ve had any training in criminal procedure.

    Comparing Congress investigating the President to racial profiling is some silly, silly, business.

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