Donald Trump

On Congressional Inquiries and Presidential Defiance

|The Volokh Conspiracy |

Over at The Atlantic, I have a new piece on the escalating tensions between the Trump White House and the Democratic House of Representatives. The House has been unusually aggressive in its pursuit of oversight of the executive branch, which has often veered into an unofficial and now more official impeachment inquiry. For its part, the White House has been unusually defiant of congressional investigations, from the president's early declaration that the administration would fight all subpoenas to the White House counsel's announcement of a policy of total noncooperation.

The piece revisits the constitutional rationale for a congressional investigative and oversight function and the challenges of performing that task in an environment of partisan polarization. Presidents have some responsibility to cooperate with congressional oversight when possible, though less of a duty to facilitate their own impeachment. Even so, presidents also have some legitimate reasons for obstructing congressional investigations, and the tools available to Congress to coax reluctant administrations to be more cooperative are ultimately more political than legal.

Here's a taste:

Pelosi's House seems to have lost much of its leverage over the Trump administration. The president seems to be assuming that he will inevitably be impeached and that there is no legislative policy agenda to be advanced, and so he has nothing more to lose by refusing to cooperate further with the House. He is now positioning himself for the Senate trial and the electoral campaign.

Read the whole thing here.

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  1. “and now more official impeachment inquiry.”

    Until they actually hold a vote on it, it’s not more official. 0=0.

    1. And yet the House is still pursuing impeachment, the inquiry continues daily, everybody (Right & Left) is discussing this impeachment and they’ll be a vote whether to impeach once the full evidence is in.

      Even setting aside the shaky constitutional basis for your comment, I don’t see its significance. What’s its value? Zero, maybe?

      1. “full evidence”

        The fact that Clinton lost was known in November, 2016. We al know that is the real evidence “justifying” impeachment.

        His high crime was beating her.

        1. “His high crime was beating her.”

          This is so obvious to you, but the fact that the President invites other countries to take a role in our elections eludes you?

      2. The House is a legislative body. The way legislative bodies do things “formally” is by holding votes. No vote has been held yet.

        Ergo, it is not a formal proceeding.

        You might ask why Pelosi and Schiff are determined to do this informally. Apparently they’re trying to leverage an informal impeachment investigation to collect dirt on Trump, without requiring any of the Democrats elected from districts where Trump is popular to cast votes that might hurt them next year.

        1. Which “Democrats elected from districts where Trump is popular” have come out in opposition to an impeachment inquiry? Which of them has not come out vocally in support of an impeachment inquiry?

          Anyway, we’re going to get an impeachment inquiry. Pelosi will be forced to cave, and so we’ll have our vote.

          1. Representative Van Drew, NJ, for one.

            1. There’s actually 8 of them (the others are Brindisi, Cunningham, Golden, Horn, Kind, and Petrson). That gets you down to 227-228, a majority. And since he’s out publicly, how does a vote hurt him?

              The only people who are not on record yet are 14 Republicans. There are no Democrats who have not announced their position on an impeachment inquiry.

              1. If you already knew, why ask the question?

                There’s a difference between being “on the record” and an actual vote.

                1. So you’re voting on a lot of them lying to the public and their constituents and then changing their minds? I’d bet on them picking up votes, since a lot of the no/on the fence statements predated the President’s blanket refusal to respond to subpoenas.

                  1. “So you’re voting on a lot of them lying to the public and their constituents and then changing their minds? ”

                    They’re politicians. It’s practically in their job description.

                    1. So it’s equally plausible that all the no Republican votes will change their minds, too?

                    2. Some Democrats might decide not to go on record actually voting to impeach the President due to being elected out of districts that like Trump.

                      Essentially ALL Republicans will have that motive.

                      Sure, one or two might decide to vote in favor of it; Politicians do decide to retire occasionally.

                    3. @Brett,

                      There are Republicans holding districts that Clinton won, too.

                    4. No theory
                      Any Republican who votes for impeachment, especially in a swing district, might just as well file papers that day changing his party affiliation.

                    5. What’s weird about this is that you all are imagining a world where Democrats live in swing districts and can never buck party lines, but Republicans never operate that way. It’s just not true. The term RINO means something to some people, and there are RINOs. When Nixon was impeached, Republicans stood with him until they didn’t, but it wasn’t necessarily all at once. There is a continuum that has more than nothing to do with the changing tides of public opinion. Admittedly President Trump’s favorable/unfavorable has been uniquely stable. But Nixon’s net approval was at its third highest of his presidency (47.8) before plummeting to -7.6 in 5 months. Since the President is sitting at -12.2 today, there’s less room for him to fall, but Nixon found himself in the -30s eventually.

                      Anyway the question here is not voting for impeachment. It’s voting for an impeachment inquiry. There are currently 14 Republicans who aren’t on record yet, and several of them said things like “Let’s put it through the process and see what happens” process being “oversight process”. That was before the President told Congress to eat shit. Maybe the Representatives circle the wagons, but maybe not.

                    6. I think, from the conversations and stories about Pelosi trying to gauge support for an impeachment inquiry, that the Democrats aren’t quite 100% there.

                      I also think the rules and regulations in any impeachment inquiry will play a large role, and some Democrats won’t be on board with an inquiry that they don’t view as “fair” (IE, that doesn’t have protections for the minority party).

                      The converse situation (GOP members in Clinton districts), there are far fewer of.

                      To draw an analogy, going by public statements over the last 15 years, immigration reform should’ve happened by now. But the devil was in the details.

        2. That’s a silly distinction. Committees hold hearings all the time without voting; are those unofficial?

          If a committee is in session, it’s official. If the full house is in session, it’s official.

          You don’t need to go around inventing fresh excuses for your delusions. TDS strikes all sorts of people from across the full political spectrum.

        3. Actually they have rules which make things formal. Seems to me the Speaker’s power to refer any “matter” to one or more committees whose jurisdiction is “related” to it for investigation makes the inquiry “formal” inasmuch as the Speaker has done so. See Rule XII. There are also parliamentary rules, and there is one that requires House authorization to investigate a member. Jefferson’s Manual, Sec. 321. The absence of a similar one for impeachment seems to be pretty strong evidence that the Speaker’s referral is conclusive, and makes the impeachment investigation “formal” within the meaning of House rules and procedures.

          1. So oversight and impeachment inquiries are exactly the same?
            Or phrased differently. How can an outsider tell the difference?
            My thinking is, a refusal to respond from the White House, would have to go to a judge. The 1st question a judge would ask is How do I determine if this is oversight. (legislative purpose) or impeachment?

            1. My point is that it is an “impeachment inquiry” by reason of the referral by the Speaker, and she has been delegated that power by the House via the adoption of the rules. Same situation as when President can exercise emergency powers delegated by Congress. An outsider can tell the difference by the Speaker’s referral to the committees. The Speaker is not some random member–she has been delegated powers by the House. Remember too, that the impeachment power is not applicable only to the President. Would you have the same objection if it involved the impeachment of some other federal official? Are you suggesting that the Speaker could not refer the matter of judicial misconduct to the Judiciary Committee without a full House vote?

        4. “The House is a legislative body. The way legislative bodies do things “formally” is by holding votes. No vote has been held yet.”

          They also “formally” hold hearings.

      3. We already know the outcome. It’s like a case before one of those Obama judges.

        Who cares what happens during the process, we already know the outcome.

        1. Pretty much. When you look up kangaroo court in the dictionary, you get “Anything conducted but Democrat Party politicians and judges.”

          1. *by

      4. Double secret impeachment.

        Pretty strange to have all the testimony and depositions locked down. You’d think if they had real case they’d want to publicize it.

        1. It’s weird — some might think bad faith — how people pretend not to understand the difference between an investigation and a trial.

          1. They aren’t pretending to not know the difference.

            They see anything, and anyone attempting to hold Trump accountable to the law or Constitution as invalid, and argue accordingly.

            You might as well be communicating with a box of rocks.

            1. We see the people trying to go after Trump conspicuously avoiding holding any sort of vote. You know who avoids a vote in the House?

              Somebody who expects to lose that vote.

              So the default assumption is that if the leadership are avoiding holding any votes while investigating Trump, it’s because they think they’re thwarting the will of the House majority, and don’t want to give that majority an opportunity to stop them.

              Of course, I could be proven wrong. The way that happens is if they hold a vote, and win.

              1. They don’t have to hold any vote to investigate whether articles of impeachment are warranted.

                They have to vote to send such to the Senate once the evidence is gathered.

                The default assumption from me, and other rational posters, is that people like you are morons.

                1. Except if they take the vote…Trump has SOME due process rights then.

                  Now? The Dems keep Republicans out of the “hearings”. Promise transcripts eventually. You know…the transparency thing.

                  1. No one is being kept out of hearings except for those not from any of the committees involved trying to crash the hearings.

                    Republicans get to ask half the questions, and given the hearings are taking like 8 hours, I don’t think they lack for chances to speak.

              2. “We see the people trying to go after Trump conspicuously avoiding holding any sort of vote.”

                The vote is held in November of every 4th year. The last one was a little less than 3 years ago, so whining that there hasn’t been a vote is a little, no, make that extremely stupid.
                Are you stupid, Brett?

        2. And then we’d have accusations of leaking sensitive diplomatic/national-security concerns!

    2. Yep.

  2. The House oversight committee has requested copies of Trumps tax returns (2010-2018) as part of the house’s oversight duties.
    The CA for DC has ruled that the accounting firm must provide the returns. However, the statute (section 6103 IRC) limit congress ability to obtain his returns to only the ways and means committee and the senate finance committee with a further limitation that it must only be done for legislative purposes. It would seem the language of the statute does override the House’s oversight investigative powers.

    1. What is the relevance for pre-election returns in any event?

      1. “What is the relevance for pre-election returns in any event?”

        That is a valid point – The claimed need for the investigation of the tax returns was the payment to stormy daniels which was a 2016 [?] payment, so the search for 8 years of returns did not seem relevant.
        The opinion however did not seem to address the issue of relevancy in any meaningful manner – other than the oversight had very broad authority.
        The opnion also did not seem to address the statutory limitation under section 6103 as to whether 6103 overrode Congress’ general authority to investigate.

        1. “The opnion also did not seem to address the statutory limitation under section 6103 as to whether 6103 overrode Congress’ general authority to investigate.”

          Correct. It also didn’t address the applicability of the Soviet Constitution to this inquiry, or whether the subpoena complied with the 1663 British Navigation Acts.

        2. “The opnion also did not seem to address the statutory limitation under section 6103…”

          Did you find it curious that the DOJ, the Trump Plaintiffs, and the dissent also did not address this limitation, in that case?

    2. “However, the statute (section 6103 IRC) limit congress ability to obtain his returns to only the ways and means committee and the senate finance committee with a further limitation that it must only be done for legislative purposes.”

      26 USC 6103(f) has to do with requests to the Secretary of the Treasury. The House Ways and Means Committee already submitted a request to the Secretary, which was denied. The case you are citing (“CA for DC has ruled”) involved a subpoena to Mazars USA, LLP, an accounting firm. 26 USC 6103(f) has nothing to do with that request. Why, in your view, does it apply to that case at all?

      The House Oversight Committee’s oversight jurisdiction exists “without regard to” other committee’s jurisdictions. It also has a separate subpoena power, subject to the limitation that the documents or information sought are “consider[ed] necessary” by the Oversight Committee. I’m not aware of any other limitation on the subpoena in the rule.

      However, the stated legislative purpose is the 1978 Ethics in Government Act, and more specifically whether the President engaged in illegal conduct before and during his tenure, has undisclosed conflicts of interest, is complying with the Emoluments Clauses, and accurately reported his financials to the Office of Government Ethics, among other agencies.

      1. Seems like a scurrilous work-around to take the tax returns from your accountant because your own law prevents the treasury from giving it up.

        To hell with the spirit of the law, and to hell with the spirit of the 4th Amendment, preventing the king from filching at will through papers of opponents until they find something, anything, to hit him with.

        1. Current law does not prevent the treasury from giving it up. The treasury refused to give it up because it is headed by the person whose tax returns were requested.

          This has nothing to do with the 4th Amendment. The government has President Trump’s tax returns. Section 6103 involves an intergovernmental transfer of documents.

          1. The Treasury’s position was that current law prevented them from giving it up.

            1. “The Treasury’s position was that current law prevented them from giving it up.”

              Yeah. By an AMAZING coincidence, the boss of the Treasury can be fired from the Treasury, at will, by the person whose records were requested.

              I contend that the reason Trump doesn’t want his tax records released is because they’d show that he isn’t nearly as rich as he likes people to believe he is. That’s damaging to his brand, but not his political chances.

    3. the statute (section 6103 IRC) limit congress ability to obtain his returns to only the ways and means committee and the senate finance committee with a further limitation that it must only be done for legislative purposes.

      Here is paragraph (f)(1). Care to point out where it says that?

      Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives, the chairman of the Committee on Finance of the Senate, or the chairman of the Joint Committee on Taxation, the Secretary shall furnish such committee with any return or return information specified in such request, except that any return or return information which can be associated with, or otherwise identify, directly or indirectly, a particular taxpayer shall be furnished to such committee only when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure.

      Note that under paragraph (f)(3) other committees may be authorized by resolution to obtain returns, and that:

      Any resolution described in this paragraph shall specify the purpose for which the return or return information is to be furnished and that such information cannot reasonably be obtained from any other source.

      But this language does not appear in paragraph 1, quoted above, requiring the Secretary to provide returns on request to the three named committees.

  3. I disagree with Whittington, the White House was very cooperative with the Mueller Probe, doing everything but letting Trump himself be interviewed. They have not been “unusually defiant of congressional investigations” in the past.

    Standing up for executive privilege against the Kafka-trap “impeachment inquiry” that is occurring without a formal vote of the full House on the matter is not being “unusually defiant,” especially considering recent precedent leading to Holder being held in contempt of Congress for his stonewalling.

    1. Indeed. Trump was very cooperative with the Mueller probe.

      In this instance, Trump sees it as just more fishing and press-generation from the Democrats.

      1. Madness of leftist zealots

        https://nypost.com/2019/10/12/goodwin-madness-of-leftist-zealots/

        …singling out Trump for the turmoil engulfing the country is possible only if you disregard the No. 1 contributor: the refusal of Democrats and most of the media to accept the results of the 2016 election.

        That refusal has become, among many on the left, borderline psychotic. Nothing else compares to the damage it is doing to our ­nation’s fabric and global image. .

        Mueller was never fired, testified that no one tried to limit his probe or cut his resources — and still he couldn’t deliver the goods.

        In America, that means the case is closed. That should have been the end of it.

        The dirty tricks in 2016, the flames of treason fanned by Hillary Clinton and top members of the Obama administration, the wild media scoops and whispered accusations — all of it had been considered and found to have no merit. The Russia, Russia, Russia charge was false and it was time to move on.

        Instead, the left immediately began searching for another silver bullet. One way or another, they would bring down Donald Trump.

        Thus was born Ukraine, Ukraine, Ukraine.

        1. “Nothing else compares to the damage it is doing to our ­nation’s fabric and global image. .”

          Unless you count the refusal to accept the outcomes of the 2008 and 2012 elections, which were, of course, dealt with entirely rationally by R’s.

          1. Obama is an evil traitor with no conscience, but we didn’t try to illegally interfere with his presidency.

            1. Mitch McConnell agrees with you on the first part, but Merrick Garland disagrees with the second.

              1. Obama could have gotten Garland onto the court. His failure to exercise his Executive powers to do so were a political decision.

              2. They didn’t consent to his nomination, as they are Constitutionally entitled to.

                1. There’s only one Mitch, so calling him “they” seems odd.

          2. No one attempted to sabotage elected and re-elected President Obama, or claim that he was secretly elected by Russians and thus illegitimate.

            But if this is now the norm, then the next Democratic President can certainly be on the receiving end too.

            If elections don’t matter, then elections won’t matter. Be careful what you wish for.

            1. “No one attempted to sabotage elected and re-elected President
              Obama”

              Unless you count the Republicans who did so at every opportunity.

              “or claim that he was secretly elected by Russians and thus illegitimate”

              The claim was that Hawaii was part of Kenya, as I recall.

              1. No, the Republicans didn’t at every opportunity. That’s a flat out, bald faced lie.

                1. Here’s John Boehner, the likely speaker if Republicans take the House, offering his plans for Obama’s agenda: “We’re going to do everything — and I mean everything we can do — to kill it, stop it, slow it down, whatever we can.”

                  Senate Minority Leader Mitch McConnell summed up his plan to National Journal: “The single most important thing we want to achieve is for President Obama to be a one-term president.”

                  https://www.politico.com/story/2010/10/the-gops-no-compromise-pledge-044311

                  How soon they forget.

                  1. Well, yes, opposition parties typically oppose the agenda of the other party, that’s why they’re “opposition” parties. And it is always the aim of any given party that a President of the opposing party not be reelected.

                    But he wasn’t “sabotaged” in the sense Trump has been. He was just opposed.

                    1. Translation:

                      “It’s different when WE do it”.

                2. “No, the Republicans didn’t at every opportunity. That’s a flat out, bald faced lie.”

                  Not wanting it to be true is not the same as not being true.

                  They opposed Obama even when he was trying to do something they say they’re for. For example, Obama went to Congress to ask for authority to hold more deportation hearings, and deport more people. The R’s didn’t even bother to consider the request.

            2. ” Be careful what you wish for.”

              You seem to have written my name on the wrong side of the ledger.

    2. Mad….That was my take as well. The premise was totally wrong.

      Look, impeachment is a political process. There really are no enumerated impeachment rules, other than what the Speaker decides are the rules. What would elevate this to a dangerous level is arbitrarily jailing uncooperative witnesses. That is a step too far, and congressmen should back away from this. Those are Banana Republic tactics.

      The Republic can survive a bad POTUS. God knows, we have had bad POTUS’ in our past. I am not so certain the Republic can survive a malign press, a bureaucracy that actively undermines a duly elected POTUS and his lawful attempts to implement perfectly legal policies, intelligence agencies and their leadership with their own agenda, and a Congress run amok.

      1. ” There really are no enumerated impeachment rules, other than what the Speaker decides are the rules.”

        Well, what the Speaker decides are the rules AND can get enough “aye” votes for, when the vote is eventually called.

  4. “the tools available to Congress to coax reluctant administrations to be more cooperative are ultimately more political than legal.”

    You’ll know its serious when the House votes to zero out the Secret Service’s White House detail travel budget. For extra fun, if they divert these funds, but ONLY these funds, to border wall construction…

    1. At which point Trump simply rehires his previous private security detail.

      Why not, “You’ll know it’s serious when the House starts holding votes.”?

      1. “At which point Trump simply rehires his previous private security detail.”

        Pay for something himself????!? I don’t think so.

        1. Well he may just decide to stop donating his salary and using that. But then maybe the House could cut off the President’s salary? That would be pretty significant.

          1. The House can’t do squat without the cooperation of the Senate, except impeach him, and that requires the Senate to convict.

            1. “The House can’t do squat without the cooperation of the Senate”

              Unless, of course, spending by the government has to be approved by both houses of Congress, and not just in the Senate.

    2. Those are fun hypotheticals JP, and I see them in the lefty-verse on Twitter. Things like the House locking people up with the Marshall’s help for those who refuse to testify, etc. I find it hard to believe that the House will have the guts to do things like that, when they don’t even have the guts to make a full House vote for impeachment.

      1. “House locking people up with the Marshall’s help for those who refuse to testify”

        I’d like to see that.

        I thought the fantasy was the Sargent at Arms doing it. Are they really talking about using the US Marshall’s office? Why would an executive branch appointee arrest executive branch members at half of the legislature’s request?

      2. I think they’re either hoping that an informal inquiry can be leveraged to find dirt that would make a formal impeachment politically viable, or hoping to provoke Trump into some reaction that could be similarly leveraged.

        1. Well, there’s good precedent for that. Like starting an investigation into Whitewater, and ending with semen stains on a blue dress.

          1. People forget that something like 14 convictions came out of Whitewater directly related the matter that prompted the investigation – including the sitting governor of Arkansas(!) and the Clinton’s direct business partners(:O). Not in perjury traps but for fraud and embezzlement connected to their business dealings. It was messy business, and yes, completely overshadowed by the unfortunate events with Monica. But the Clinton’s weren’t any cleaner than the dress with regards to Whitewater itself, just not enough to get over the hurdle of taking down a sitting president. Had he been otherwise, both he and Hillary would surely have been indicted. The reality is that the law does treat folks differently based on their position of power. Nothing’s changed in that regard even with Trump.

            1. “the Clinton’s weren’t any cleaner than the dress with regards to Whitewater itself”

              Which explains why a multimillion-dollar, multi-year investigation came up with exactly 0 indictments of the Clintons. It’s a shame they didn’t hire YOU to run the investigation, since you apparently know where all the bodies are buried.

              ” just not enough to get over the hurdle of taking down a sitting president. Had he been otherwise, both he and Hillary would surely have been indicted.”

              When was Hillary President?

              Considering that neither one is President, what kept them from being “surely indicted” in 2001? Bill wasn’t President, and Hill wasn’t a Senator.

        2. I think the leadership just wants to ride out the rest of the term, and beat him at the ballot. More and more of the D-in-the-street is losing patience, which is showing up in some showboat Reps talking about “hey, let’s do this!” because it plays with their base. But if they wanted to go impeaching the Twit-in-Chief, it would have been within 90 days of the House changing hands. It would have been followed by a party-line vote to acquit in the Senate, and there’d be nothing more hanging over Trump’s head keeping him looking over his shoulder every time he thinks about doing something shady.

      3. ” they don’t even have the guts to make a full House vote for impeachment.

        The D leadership prefers ineffective President Trump to a hypothetical President Pence, who might be able to actually follow through on things.

    3. You’ll know its serious when the House votes to zero out the Secret Service’s White House detail travel budget.

      That’ll convince the American people it’s not about getting a political enemy. More! More!

      1. “That’ll convince the American people it’s not about getting a political enemy.”

        Depends on whether having to stay in Washington makes the President actually get any useful work done, I guess. I wouldn’t bet on it, myself. Mr. Trump doesn’t have any experience working for someone else, and it shows.

  5. The president seems to be assuming that he will inevitably be impeached and that there is no legislative policy agenda to be advanced, and so he has nothing more to lose by refusing to cooperate further with the House.

    Whittington flies pretty wide of the mark. Whittington apparently ignores that Trump has a lot more to lose. For instance, he could lose a trial in the Senate, instead of collecting the near-certain exoneration he would be awarded if tried before further evidence can be collected.

    Thus, Trump’s non-cooperation is, without any reasonable contradiction possible, an attempt to suppress discovery of more evidence against him. And also an attempt to deny the House its prerogative to build a political case against Trump which would support impeachment and removal from office.

    Whittington also goes light on the powers available to the House. Pursuant to its impeachment inquiry, the House could monitor disbursements from the treasury, with an eye to finding any for purposes which had not been expressly appropriated. Government officers who authorized such expenditures could be subpoenaed, and held in contempt for those authorizations. They could be imprisoned by the House, without recourse to the justice system. They could be fined. Their paychecks could be garnished and their bank accounts frozen. Liens could be put on their real estate. All of that could happen alike to every Trump administration official who defied a subpoena, failed to produce documents, or lied to investigators.

    All of that comes before considering the slower-acting advantages the power of the purse puts at the disposal of the House. If the House chose to do it, it could by inaction de-fund every part of the administration which failed to cooperate. Start with the Office of Legal Council, and its letter of defiance. De-fund the “investigate the investigators,” travesty in the administration—but to reassure critics, move the money instead to the Senate, to continue the investigation there.

    Trump scoffs at the House, and nothing happens. It is because nothing happens that the House looks powerless. The House could teach Trump to stop scoffing, and fear its power. It has only to act.

    1. If the full House won’t vote on impeachment, what makes you think they will strip salaries, and other more hardball tactics? Also, I think the Senate has a say in House attempts to do things like that, like freeze bank accounts, and I’m sure they would end in McConnell’s so called “graveyard” of other House bills.

      1. mad_kalak, the Senate gets no more say than Granny Smith, the apple. None. The House has “Sole Power.”

        As for McConnell and his “graveyard,” he has been bragging about it in campaign ads. Boasting that he stands between Trump and removal from office, and that Kentuckians can count on him to stop it. I’m looking forward to that ad getting a lot of airtime from Democrats in Senate campaigns come next fall.

        1. Stephen,

          Mad’s comment about the Senate was clearly in reference to your proposed insane plan to “Freeze Bank accounts”. IE, you would need both Houses of Congress to have a hope of this vastly illegal plan.

          But let’s break down this insane statement of yours.

          “the House could monitor disbursements from the treasury, with an eye to finding any for purposes which had not been expressly appropriated.”

          –OK. Although this is always a grey area, especially with some points in the law.

          “Government officers who authorized such expenditures could be subpoenaed, and held in contempt for those authorizations.”

          This is very, very grey. I mean you would need absolute, 100% evidence that it was actually illegal

          “They could be imprisoned by the House, without recourse to the justice system.”

          OK, this is flat out illegal, and just wrong. It breaks so many laws, and so many areas of the Constitution that it boggles the mind. No law enforcement official or judge would ever uphold such action.

          1. “without recourse to the justice system”

            cough habeas corpus cough

            1. Back when W was protecting us from terrorists, they tried shuffling prisoners from military base to military base, with enough frequency that the mandamus writs always arrived after the prisoner was somewhere else. They gave up on that after a few rounds, though.

              I’m not sure a habeus writ has any effect on Congress, if they don’t want it to. What if they get the paperwork, and just say “nah!”?

          2. Armchair, if you really are a lawyer, you are thinking like a lawyer, and positing that lawyers get to decide everything, all the time. You are doing that while staring straight at a part of the Constitution which contradicts you.

            What do you suppose, “sole power,” means? Unless it means no one else gets to interfere, it is meaningless. “No one else,” includes your, “law enforcement official or judge.” They get no legitimate say in impeachments.

            Older Americans today suffer from the incomplete preparation for political insight which was the usual fare in their 8th grade civics classes. In those, the day-to-day functions of government were both well-taught, and in some cases well-remembered. What was left out of 8th grade civics was any mention of the over-arching part of political theory uppermost in mind among the founders—the theory of sovereignty. It infuses both the Constitution and the Declaration of Independence—where it would be conspicuous to everyone, if almost everyone had not been taught as children to ignore it, and concentrate instead only on the decrees in the Constitution delegating and limiting the powers of government. That is what you are doing here.

            So please, consider some of the other sole powers the sovereign decrees in its Constitution. How about the President’s pardon power? Can a law enforcement official or judge intervene in that? How about the power of Congress to declare war. What role is there in that for a law enforcement official or judge? On its face, in the Constitution, the impeachment power is no different. If you think otherwise, show why.

            1. How’s this….

              “Impeachment” does not mean imprisoning people without recourse to the judicial system. Which is what you’ve have proposed. Which is illegal as all hell. That is the hallmark of dictatorship.

              “Imprisoning people without recourse to the judicial system….” It violates the 5th Amendment. The 6th and/or 7th amendment. The 9th amendment. Not to mention the Separation of Powers, if you’re having the House majority due it. And probably some more areas I’ve missed.

              But go on…keep defending this somehow.

              1. Stephen Lathrop is anti-American.

                See his comment aboyt not wanting to narrowly define foreign participation in elections.

                1. Michael, I am curious, I cannot remember addressing that issue. But maybe I did, and forgot it. Or maybe you are mistakenly describing some comment I made on another issue. Care to quote it back to me?

                  1. You wrote that you supported a law that prohibited foreigners from participating in elections.

                    I asked how participation could be construed narrowly.

                    You asked why participation needs to be narrowly construed.

                    1. Not much of a citation to go on. But given what you remember, how is that anti-American?

              2. Armchair, in short, you have nothing. I assert impeachment is an exercise of sovereign power, and ask you to refute that if you can.

                Instead, you assert 5 ways the Constitution constrains sovereign power, which is an absurdity. The Constitution can never constrain the sovereign. The Constitution is the sovereign’s creation. The sovereign can make the government, modify the government, ignore the government, abolish the government, or replace the government. The government gets no say in any of that. That is what sovereign power means.

                You would have done better to assert that because the House is a division of government, it cannot in fact be exercising sovereign power, but only limited power. Then we could have had a discussion worth having. On my side, I would show you that in addition to contradicting the plain text of the Constitution, your premise precludes any exercise of the impeachment power at all. That is what you want, of course. And it happens to be also what President Trump is attempting right now to demonstrate. In so doing, he is edging very close to an outright competition with the People themselves, to seize sovereignty from them. That is what you are backing.

                1. For the love of….

                  “Instead, you assert 5 ways the Constitution constrains sovereign power, which is an absurdity. The Constitution can never constrain the sovereign”

                  The Constitution is literally designed to restrain and constrain sovereign power. It is the purpose of having a Constitution, and especially the Bill of Rights.

                  Someone else take this….

                2. OK, we’ll try this again. From basics.

                  Stephen, President Trump is President of the United States and head of the executive branch.

                  Why can’t he just take every Democrat in Congress and throw them in prison, then do what he wants. What prevents him from doing this, from a legal perspective.

                  1. The Constitution is literally designed to restrain and constrain sovereign power. It is the purpose of having a Constitution, and especially the Bill of Rights.

                    Well, Armchair, there’s the problem, right there. You are conflating government and sovereign, with everything in a hopeless muddle. Think of it this way (because this is the way it is): A constitution is a decree from a sovereign. That decree creates a government, which is what a constitution constitutes. Thus, the creation of a government is said to be an exercise of the sovereign’s constitutive power—and the ability to exercise constitutive power is seen as the defining characteristic of sovereignty.

                    When a sovereign exercises constitutive power, it creates a government according to the sovereign’s pleasure. To act at pleasure is to act without constraint of any kind. Rights under government (leaving aside other theories of rights) are decreed to the subjects at the pleasure of the sovereign.

                    The sovereign acts continuously to keep the government in prescribed bounds, and to vindicate the rights of subjects.

                    With that as background, we can turn to your example. The Constitution defines the offenses Trump would commit if he did what you say. The sovereign power of the People would arm them to vindicate the Constitution. President Trump could not do as you suggest, because a power greater than his own—sovereign power—would compel him to do otherwise.

                    More generally, you misunderstand the founders’ view of sovereignty. Or perhaps you understand it a bit, but not the implications.

                    The founders never meant “sovereignty” to mean the power of government. The founders believed, as some said explicitly, that no national government was possible without having over it at all times a sovereign of unlimited power to constrain the government within whatever bounds the sovereign prescribed.

                    Thus, the otherwise inexplicable miracle of powerful governments which respect the rights of even the least among the nation’s citizens. If government oppresses them, do those ordinary people enjoy power of their own sufficient to enforce rights against the power of goernment? Of course not. So where does the power come from to accomplish that? It can only come from one source, a sovereign with unlimited power, to overawe the government, and compel enforcement of the rights the sovereign has decreed for its subjects.

                    I suggest if you keep those basics in mind, my comments will cease to strike you as outlandish. The premise we must all be working from now, is that President Trump, by refusing all cooperation with the House on impeachment, is not just scoffing at Democrats, but actually challenging America’s sovereign, the People, to a contest after which only the winner will exercise sovereignty. It is a contest in which the People’s sovereignty will end, or Trump will be defeated.

                    That is a constitutional crisis of a severity not seen since the Civil War. You should not wonder if it becomes a contest of brute force on behalf of the People, just as Trump has envisioned it as a contest of force on his own behalf.

                    The difference between the adversaries is that at least for now, at the outset, the People come armed with constitutive power, and the ability which they always have to act at pleasure in defense of their sovereignty. And they are not just armed, but forearmed, because they wield the “sole power” of impeachment, a constitutive power which they delegated in the Constitution to the House, to meet a crisis exactly such as this one. Make no mistake, that is sovereign power the House can wield, if it will, not constrained power of the usual sort with which the House operates. Those are the implications of that “sole power” declaration from the still-sovereign People, in their Constitution, which the government is not the least empowered to constrain.

                    1. OK, question for the forum at large, everyone, liberals, libertarians and conservatives, everyone besides Stephen.

                      Did that make sense to anyone?

                      James? Brett? Bob? NToJ? Sarcastro? Anyone? Did that make any sense at all?

                    2. “Did that make any sense at all?”

                      Nope 🙂

                      It is remarkably similar to the ‘sovereign citizen’ stuff; different arguments, but the same too clever by half logic.

                    3. Absaroka, make sense of this for me, please:

                      “The Constitution is literally designed to restrain and constrain sovereign power. It is the purpose of having a Constitution, and especially the Bill of Rights.”

                      Absaroka, answer these questions:

                      1. What in the Constitution informs us that the judiciary is excluded from interfering with the pardon power, but empowered to interfere with the impeachment power?

                      2. If sovereign power is not what compels government to respect rights and honor limitations, what power does compel government to respect rights and honor limitations?

                      3. In the question above, how did limitations on government get there in the first place—from God or some other source; what source, and by what authority?

                      4. If separation of powers constrains impeachment and removal, how can separation of powers remain sacrosanct, while exercise of impeachment and removal boots a president out of office?

                      More generally, my comments on the role of sovereignty in American government are the exact opposite of sovereign citizen crap—as even you seem to acknowledge, while dragging that in because you know it is crap, and you would like to smear around a little crap.

                      Nor did I just make up any of it. Everything I wrote above can be found in the Declaration of Independence, the Constitution, or the historical record—particularly, with regard to the U.S., in the writings of founders, Jefferson, Madison, and James Wilson, and in the record of events and writings preceding and during the American Revolution. Back of that, I am indebted to Edmund Morgan’s great history, Inventing the People: The Rise of Popular Sovereignty in England and America. Behind Morgan and the English history lies Hobbes’ Leviathan. Insightful commentary on these and related issues, and particularly on Hobbes, can be had from reading the works of the great English historian and political philosopher, Michael Oakeshott.

                      I do not for a moment suggest that there are no points of legitimate controversy in my own interpretation of this impeachment contest. Unsurprisingly, libertarian-oriented objections have touched on none of them.

                      Libertarian critique of American government and current events always suffers from the general inattention libertarians give to history, and to any political theory which is not their own. Compared to the entire historical record, and centuries of work in political philosophy, libertarian theory is thin. Compared even to just Federalist 10, libertarian theory is thin. Compared even to a better-class high school history curriculum, libertarian theory is thin.

                      So there you are, libertarians, confronted by centuries-old, bog-standard political theory, and utterly befuddled. Show me I am wrong. Give me some cogent answers to the questions above. There are some available. Do you know them?

                    4. “The premise we must all be working from now, is that President Trump, by refusing all cooperation with the House on impeachment,”

                      But he hasn’t. Explicitly, he’s said, “If you want cooperation, hold a vote, and open a formal investigation.”

                      That’s not refusing all cooperation, it’s stating his conditions for cooperating, and they’re perfectly reasonable conditions.

                    5. Armchair:

                      The People are the sovereign that created the Constitution, which then delegates, but only partially, and with explicit limits, the exercise of that sovereign power. I guess that’s what he’s getting at, before he starts going off the rails.

                      Where he goes off the rails is by treating that “sole power” to impeach as somehow obviating the “only partially, and with explicit limits” bit. and allowing the House to directly exercise that delegated sovereignty without any limits.

                      Where all it actually means is that the Senate can’t impeach.

                    6. Brett,

                      Yeah, I get the fact that Sovereign power is in the hands of the People in an American democracy (as opposed to the hands of the king in the monarchies of Europe at the time tit was written).
                      And that power is delegated to the Representatives, Senators, Judges and President for governance, under strict conditions, with strict limitations built in (IE the “Constitution”). Specifically built in so the people the power was delegated to couldn’t abuse it.

                      Lathrop’s writing off of all those limitations…and wordplay…it was off the wall.

                    7. The difference between the adversaries is that at least for now, at the outset, the People come armed with constitutive power, and the ability which they always have to act at pleasure in defense of their sovereignty. And they are not just armed, but forearmed, because they wield the “sole power” of impeachment, a constitutive power which they delegated in the Constitution to the House, to meet a crisis exactly such as this one. Make no mistake, that is sovereign power the House can wield, if it will, not constrained power of the usual sort with which the House operates.

                      The power of impeachment does not include the power to freeze bank accounts, nor the power to imprison people without recourse to the judicial system.

                  2. “Why can’t he just take every Democrat in Congress and throw them in prison, then do what he wants. What prevents him from doing this, from a legal perspective.”

                    This is two entirely different questions.
                    The answer to the first is that he doesn’t have the unconditional support of all the members of the government. There would be substantial resistance from below if such an attempt were made. The answer to the second is that Congress has legislative immunity. Which means nothing at all without the first.

              3. It’s vomitously sickening people are running with the idea “impeachment” means can investigate anything, root through any papers, at will, and now jail people at whim for disobedience.

                Get out of this country, dictators. If it walks like a duck, and quacks like a duck, you’re a dictator.

                1. It is a shame to have to tell you this, Krayt, but dictatorial power and legitimate political power come from the same source, which is pure force. The trick in distinguishing those powers is to be found only in what is done with them after getting them from the source. Too bad it can’t be nicer, but it isn’t.

                2. You think the real dictator is the Congressional investigations?

                  Elected officials following procedures laid out by their votes and tradition with powers ratified by the judiciary is not a dictatorship.

                  Calling everything you don’t like a disgusting national outrage is right out of the dictatorship playbook however.

                  1. Here is what Stephen Lathrop claimed that the House can do.

                    Pursuant to its impeachment inquiry, the House could monitor disbursements from the treasury, with an eye to finding any for purposes which had not been expressly appropriated. Government officers who authorized such expenditures could be subpoenaed, and held in contempt for those authorizations. They could be imprisoned by the House, without recourse to the justice system. They could be fined. Their paychecks could be garnished and their bank accounts frozen. Liens could be put on their real estate. All of that could happen alike to every Trump administration official who defied a subpoena, failed to produce documents, or lied to investigators.

                    1. And he is wrong, because, just as Trump lacks the unconditional support of the government, so does Pelosi. Attempting to freeze bank accounts and imprison people would be rejected by a substantial portion of the staff called upon to carry out these tasks.

                      Now, on the other hand, what the Trumpeteers and Resistance alike both forget is that there will be a time when Mr. Trump is not President, and does not direct the Executive offices of the nation. At such a time, subpeonas may issue (from Executive offices), prosecutions for failure to produce documents, or lying to investigators may follow.
                      There is a history of people just taking over the reins of power NOT grinding down on the people who just put the reins of power down. They do this because they know that there will be a time when they will be former officers of the United States, as well. Nixon would have been a strong candidate to see this policy end, but Ford thought it better to continue it, even though doing so angered a substantial part of the American public, including some of his own party. I strongly suspect that Mr. Trump can expect investigations into his business dealings to occur on a heightened frequency as soon as President Next takes the oath of office, and investigation of his actions as President to be extensive, if he is still alive the next time a Democrat takes over the office. Whether or not anyone will still care is an open question.

              4. ““Imprisoning people without recourse to the judicial system….” It violates the 5th Amendment.”

                No, it doesn’t. Point to where “recourse to the judicial system” is in the text of the 5th amendment.

                You have a better case with the sixth… he gets a “speedy” trial, with an impartial jury. But people can be held before trial.

                The Seventh is completely immaterial.

                The Ninth does not appear to contain anything relevant, either. Perhaps you’d like to cite something in conjunction with the Ninth, establishing your point?

                (This is an interesting thought experiment.)

            2. Prof Lathrop…I think your premise is wrong. Here is why.

              What do you suppose, “sole power,” means? Unless it means no one else gets to interfere, it is meaningless. “No one else,” includes your, “law enforcement official or judge.” They get no legitimate say in impeachments.

              Were this the case, then why is the Chief Justice the presiding officer in a Senate trial? He can, and has, made legal rulings in past impeachment proceedings.

              Personally, I think the the vote should be called. Immediately.

              Your other points about just jailing uncooperative witnesses, garnishing paychecks, putting liens on real estate are just surreal. You are a law professor, are you not?

              1. Your other points about just jailing uncooperative witnesses, garnishing paychecks, putting liens on real estate are just surreal. You are a law professor, are you not?

                Probably a law professor of Soviet law or Nazi law.

              2. “Were this the case, then why is the Chief Justice the presiding officer in a Senate trial?”

                The House has the sole power of impeachment, not the sole power of deciding the rules of the subsequent trial that doesn’t even involve them.

    2. “They could be fined. Their paychecks could be garnished and their bank accounts frozen. Liens could be put on their real estate. All of that could happen alike to every Trump administration official who defied a subpoena, failed to produce documents, or lied to investigators.”

      You are increasingly insane.

      1. Now you see why I support a military coup led by someone like Pinochet who will crush these people.

    3. As a theoretical matter, yes, Trump could lose in the Senate.

      As a practical matter, if they don’t have a case that’s good enough to even risk holding a vote in the House, they’re not going to convict in the Senate. Particularly since it never even reaches the Senate without a vote in the house.

      1. Victor Davis Hanson has a very cogent essay out today that the goal, 13 months before an election, isn’t necessarily to remove Trump. They know that is nigh on impossible, but their goal is to depress his poll numbers. Imagine if this mess did end up in the Senate, and the Dems were able to peel off Susan Collins and Romney and Sasse, and they had 51 to impeach. Not enough to convict, sure, but we’d hear about “majority vote” ad nauseam like we did the the popular vote. It also would look pretty crappy, regardless if it wasn’t enough to convict.

        1. Well, sure. You can view the last three years as nothing but a series of experiments in depressing his polling numbers; What does it take, how long before the rebound?

          With the aim of getting it down to a science in time for hitting him one last time a couple days before the election, with some BS thing that will fall apart in a few days, but push his numbers down just enough that he loses.

          1. Those calculating Democrats! They planted Joe Biden in the race knowing that the President would be incapable of restraining himself on a phone call with the incoming Ukrainian leader. They also convinced the President that the DNC servers were in Ukraine all along, just so he’d be dumb enough to ask about it in exchange for military aid that they had cleverly authorized just to entrap our leader. His twitter account is just a deep state parody.

          2. Benghazi!!!! Goose, gander. Heat. Kitchen. No? A bit late to object to partisan hearings and attacks. As a longtime supporter of divided government, it seems to me that the whole point of the 2-party system (not to mention separation of powers) is to keep the other side honest, which is a ginormous job with this administration.
            In short, opposition ready to pounce on any misdeed is a feature, not a bug. And, as far as I can tell, nothing to date has “fallen apart” as B.S. “in a few days.” Remind me.

            1. As a libertarian, divided government ground to a standstill is a good thing, if for no other reason than it gives business some confidence in stability of laws, needed for planning big investments that take years to come to fruition.

              By that metric, the Trump presidency, largely fought to a standstill by the Democrats, is a wild success.

              1. Only if you don’t count tariff, trade and sanction uncertainty, regulatory uncertainty and budget diversions.

              2. Business isn’t a conglomerate entity (yet). What’s best for business is an occasional shift that hammers the big and static businesses but allows new opportunities for nimble and agile replacements. IBM ruled the first 8 years of the PC industry, then Microsoft had a turn, and then Intel. The PC industry has had the most rapid advancement. The original PC ran at 4.77 MHz, supported up to 1 megabyte of memory, and had a hard disk capacity of 0 bytes. What other industry offers literally thousands of times the performance of products available 40 years ago?

                The Trump Presidency is brought to a standstill largely by the fact that Trump runs it like one of his businesses.

          3. Brett….This is a worrisome recent (in the last two decades) development – the anonymously sourced story, proven to be false [although that happens post-election], coming out no later than the Thursday before the election – and reported simultaneously in several press outlets. The amazing coincidence, and it is truly amazing, is that it seems to happen to Team R [Dan Rather – Bush, The Dossier – Trump] every election. These demonstrably false stories are designed to swing the election.

            It is one thing to report the news aggressively. I am good with that. It is quite another to print false stories with the intent of swinging an election. To me, that crosses the line.

            This is what will do in impeachment; people will see it for what it is. And the ultimate check on impeachment is the ballot box. Personally, I think the electorate will get pissed off with this ongoing Political Chinese Water Torture [the impeachment effort] and express their displeasure at the Ballot Box. People put up with bullshit for just so long and then get pissed off. We are just about at that point. The Progtards will be pissed they didn’t remove POTUS Trump from office, tar & feather him, and boil his supporters in oil. People who support POTUS Trump probably have a siege mentality by now, and they will show up to vote.

            This election is going to be an unholy mess. Hopefully the people will actually get to decide the question.

            1. “This is a worrisome recent (in the last two decades) development”

              It’s not that recent. A hundred years ago, there was “The Protocols of the Elders of Zion”. The peak was around that time… every faction in every city had their own newspaper to push the narrative preferred by each faction.

              ” it seems to happen to Team R [Dan Rather – Bush, The Dossier – Trump] every election.”

              If it ONLY happened to Team R, you’d have a point. But it doesn’t. You might recall a certain kerfuffle over the birth certificate of one B. Obama, or claims that Hillary Clinton was part of a pedophile ring that met in the basement of a pizza restaurant.

        2. mad_kalak, it goes far beyond what you say. With an actual majority in the Senate for a real trial, the ability to dictate the rules would pass to the Democrats. After that, every item on a bill of impeachment could be examined in full, in public. McConnell could block nothing.

          The Russia conspiracy counts could come back full strength, with new evidence putting Trump in jeopardy of removal, and his cronies in jeopardy of prison. With new evidence already showing money laundered from Russia going to the campaigns of Trump and at least the Governor of Florida, the obstruction counts would be revived in force.

          Seeing all that, the barrier wall of Trump enablers in his administration would crumble. Available evidence would overflow investigators’ ability to make use of it all. The Senate could subpoena Trump to testify, as it did Clinton. Clinton showed up. Trump would not dare.

          After such a dramatic spectacle of incrimination, with all of it on tape ready for campaign ad deployment, who would suppose Trump would not be removed? Only someone who continued to believe all that evidence would actually exonerate Trump. Even now, I doubt there are 10 Republicans in the Senate who think that. It is unlikely there would ever be a final vote. As with Nixon, Senate Republicans would take the case to Trump, and he would resign.

          So for now, Republicans’ certainty of keeping Trump in office is already balanced on the thinnest of fulcrums. It all depends on preventing the defection of probably fewer than 5 Senators—and not on any initial defection to favor removal, but only to favor a full trial. Trump’s presidency would not survive a full trial in the Senate. Given the likelihood of a few Republican Senators going over to vote with Democrats for a real trial, I suggest the probability of Trump completing his term has already sunk below 50%.

          1. “With an actual majority in the Senate for a real trial, the ability to dictate the rules would pass to the Democrats. After that, every item on a bill of impeachment could be examined in full, in public. McConnell could block nothing.”

            On the other hand, if Trump wins re-election in 2020 in spite of the never ending impeachment inquiries in the House, I would sat the odds favor Republicans holding the Senate.

            By the time the Democrats have a Senate majority impeachment will be a moot issue.

            1. I am not so certain about Team R retaining the Senate in 2020. They are defending an awful lot of seats. And Team R was absolutely incompetent in 2018 when Team D was defending over 20 Senate seats, picking up exactly 2 seats. What a whiff.

              1. I’m not so sure the Republican leadership WANT to retain control of the Senate. Being in the majority carries extra responsibilities, and results in your voters asking why you aren’t accomplishing things. The voters may even figure out that your campaign promises were mostly lies.

                In the minority you get less graft, but there’s a lot less work, too, and you’re never lacking for a plausible excuse for failing to accomplish what you claimed to want to do.

                1. Except you need the Senate to confirm judges.

                  1. You only need 41 Senators to NOT confirm judges.

          2. A lot of “possibly” and “if/thens” without an good comparison in your scenario Lathrop. It reads like a pre-game analysis for an NFL game.

            1. GOP senators want to stay senators. Voting to convict would trigger brutal primary challenges that would threaten their re-election even if they survived the primary.

              Does no one remember the “Tea Party” senate challenges of 2010-2012? The 2020-2022 ones would be far, far worse.

              He’s delusional, no sense in debating him.

            2. mad_kalak, which is why the smart money bets the Patriots. In the great football game of politics, if you want a similar bet, pick the sovereign People over Donald Trump. That is like betting the Patriots. Against the Jets. At Gillette Stadium.

              Do it that way, and you may lose anyway. But not often.

              1. Which sovereign People would that be?

      2. Brett, do you actually believe House leaders are not holding a vote because they suppose they could not win it? Really?

      3. I do admire how you have managed to convince yourself that, despite polls showing either a plurality or majority of Americans support impeachment and removal, that House Democrats are somehow _afraid_ to hold a vote. Let me assure you that they are not.

      4. “As a practical matter, if they don’t have a case that’s good enough to even risk holding a vote in the House, they’re not going to convict in the Senate.”

        A successful impeachment is better for R’s than it is for D’s. The D’s know this. From the D perspective, Trump is doing a great job for the D’s right where he is…

    4. Sorry, are you proposing that Congress “defund” an investigation into Russian corruption, because they don’t like the politics? And long standing legal offices within the White House? Because it doesn’t like the politics? Are you proposing the as a unilateral single party, the House alone, as a bare majority, they do this?

      That’s insane.

      1. Armchair, don’t like the power of the purse? That does not make it any less powerful. By the way, you will find no shortage of sources in the historical record to show founders discussing use of the power of the purse to coerce from the executive just about any outcome at all. One dictum: if the President will not do what the Congress requires, he will find that he has money to do little else.

        More generally, from you and others, I get objections to forceful action by the House. The authority and logic against my suggestions, in their entirety, have been, “That’s insane.” Not persuasive, even after repetition.

        But by implication, more sophisticated reasoning can be discerned. It goes like this: Forceful action by the House could enable impeachment. There must be some way to stop impeachment, or checks and balances, or separation of powers, or something, would be infringed. Hence, forceful action by the House is right out.

        Have I got it right? If so, let’s test alternative reasoning. Start with the premise that the founders intended impeachment to be possible, useful, and a principal constraint on executive abuse. With that premise in mind, say what you suppose the founders would do. Would they hedge impeachment around with restrictions, to make it fail? Or would they authorize powers necessary and proper to make it succeed? As a general model for your reasoning, I call your attention to Marshall’s dictum about the Necessary and Proper clause, that it is an expansion of the powers of Congress, not a restriction on them.

        So, the Necessary and Proper clause, is it insane? Spoiler: I expect you to argue it is at least bad, and ought to be struck down, or that Marshall got it wrong, or that it is inapplicable to impeachments, or something. Am I right?

      2. “Are you proposing the as a unilateral single party, the House alone, as a bare majority, they do this?”

        CAN they do this? Sure. They just don’t pass any spending bills that authorize spending money they object to.
        (and amend any Senate bills that happen to do so before sending them back into conference.)
        SHOULD they do this? that’s a different question

    5. The Democrats in the FBI and DOJ have been spying on Trump for years and haven’t found anything.

      He’s as clean as a whistle. That’s why the Democrats have to keep lying about what Trump says and does.

      1. Take your partisan bullshit and spew it somewhere else.

        Trump is under multiple investigations for multiple reasons, and once he’s no longer President, he WILL be prosecuted.

        Your delusions don’t matter.

        1. LOL. The Self Awareness Award goes to Jason Cavanaugh!

        2. That’s right, once he’s no longer President, he WILL be prosecuted, even if they don’t have probable cause on anything.

          Just to punish him for daring to win that election.

          Democrats are leading our country to a very dark and ugly place.

          1. Your the one talking about Camp of Saints being prophetic.

            The right are the ones on this blog who bring up political violence in threads about impeachment, pronouns, plastic straws….

          2. He’s already un-indicted co-conspirator #1 for at least one Felony.

            How many other criminal investigations is he the target of, and how many of those do you think will turn up enough probable cause to charge him?

            If you’re defending Trump, you’re just as big of a piece of shit as he is, and you clearly don’t give two fucks about the Constitution.

            1. He’s already un-indicted co-conspirator #1 for at least one Felony.

              Which Felony would that be?

              1. What’s the matter, 2018 too far back for you to keep track of Trump’s crimes?

                Or are you just another Trumptard fuckwad pretending that he’s done nothing wrong?

          3. “That’s right, once he’s no longer President, he WILL be prosecuted, even if they don’t have probable cause on anything.”

            He goes on television and confesses. Then his lawyer trots around to news programs and confesses again, and to more different things. In Trump’s case, it’s because he thinks he can lie about things he doesn’t really understand. Not sure about why the G-Man does what he does.

      2. And especially for what he says and does on TV!

  6. Sorry. Don’t buy it. You seem to be buying into the Lawfare type merging of Congress’ Article I, Section 1 Oversight power with their Article I, Section 2 Impeachment power, that we have been seeing in the “subpoenas” that House committees have been sending out recently. They wave their hands about this being an Impeachment investigation, then cite to their Oversight authority. The President, and much of his White House, are not subject to Congressional Oversight, since his power was not created by Congressional legislation, but has equal standing to theirs, being set out in Article II. Constitutional powers do not merge, as seems to be the theory here. They have a choice: investigate as Oversight, or as Impeachment. But there is no such thing as impeachment oversight or oversight impeachment. Separate Article I sections.

    The question then is how far should the courts follow the Nixon impeachment precedent overcoming Executive Privilege, with currently constituted impeachment investigation or inquiry. And I strongly believe that the answer is not very far. In the case of Nixon, the impeachment inquiry had the bipartisan approval of over half of the House, on a roll call vote. In this case, it was initiated by fiat, by one person, the Speaker. Her legitimacy is based on a majority vote of her caucus, with the minority (Republicans) having no say whatsoever, making bipartisan support for impeachment impossible. Allowing this by the courts would be horrible precedent, since it would, essentially, allow the Speaker to override Executive Privilege assertions by the Executive in response to oversight requests, at will, by merely the recitation of one word, lImpeachment”. Effectively gutting Separation of Powers here.

    1. You are simply restating Judge Rao’s dissent in Trump v Mazars. We’ll see if it or the majority opinion holds up down the line.

    2. Bruce, this has nothing at all to do with oversight, and everything to do with the impeachment power—which is no more subject to constraint than the President’s pardon power, or the power of Congress to declare war.

      The impeachment power is a special case, in which the sovereign decreed to the House an ability to borrow the sovereign’s own more-imposing power for the limited purpose of impeachment. The notion of separation of powers cannot prevail against that. During an impeachment, there is no impairment of separation of powers with regard to the executive’s unique powers. They continue as always. The House does not take over any of them. Except that none of the executive’s powers can be used to frustrate impeachment. In that narrow respect, the House acts with sovereign power, not with limited power. In that narrow respect, gutting separation of powers is exactly what the impeachment power intends.

      Even if you find that argument unpersuasive, you will remain at a loss. The Constitution is unequivocal. It says “sole power” on impeachment belongs to the House. That means no other party is legitimately available to interfere—not the President, not the Senate, not the Court.

      1. Except the House has not voted to impeach.
        If the impeachment power gives the House unlimited authority over the Executive because it might vote to impeach, then the separation of powers becomes a joke – because at any time in the future, the House might vote to impeach, therefor everything they do might impact that decision.

        The “Sole Power” rule states that no other body but the House can decide to impeach, but it does not say anything about investigations.

        1. There is perhaps an amount of oversight authority over the executive between unlimited and none that would be appropriate. I’m not sure the executive should have the power to ignore all oversight from Congress, regardless of whether it’s just plain ol’ oversight, or a formal impeachment inquiry, or an informal one, whatever that means.

        2. Toranth, one aspect of the unusual power conferred by the sole power clauses is that while the power is increased, so too is political accountability. By stripping away every vestige of collaboration among government divisions, a sole power clause makes the political accountability of whoever exercises it especial stark and inescapable. The frivolous use of the impeachment power you describe would quickly prove politically ruinous for whomever tried it.

          1. You mean a handful of leaders from deeply blue districts are at risk of blowback, while members from the most lightly of purple districts are safe from going on record?

            No, that can’t be right, if you are justifying the safety of unlimited investigative power by the risk of voter fury.

      2. Bruce, this has nothing at all to do with oversight, and everything to do with the impeachment power—which is no more subject to constraint than the President’s pardon power, or the power of Congress to declare war.

        the House can only impeach executive and judicial officials. The House can not impeach a Senator, nor can the House impeach state officials.

        In that narrow respect, the House acts with sovereign power, not with limited power. In that narrow respect, gutting separation of powers is exactly what the impeachment power intends.

        the House only exercises the power to impeach.

        It has no power to imprison people without judicial recourse.

        It has no power to garnish paychecks.

        It has no power to place liens on real estate.

    3. Bruce, I don’t understand your reference to “the Nixon impeachment precedent overcoming Executive Privilege”. The subpoena at issue in the Nixon case was obtained by special prosecutor Leon Jaworski pursuing a criminal investigation of the Watergate break-in, not issued by the House in an impeachment inquiry, so the state of their inquiry or investigation wasn’t part of the calculus.

      1. I think you understand: He was relating the legal myth, as though it were fact.

        It’s been spread around so much he probably didn’t even realize he was spreading misinformation.

    4. They have a choice: investigate as Oversight, or as Impeachment. But there is no such thing as impeachment oversight or oversight impeachment. Separate Article I sections.

      Both Lathrop and you Trumpkins seem to think “impeachment” is a magic word. Trumpkins think that without 218 people chanting the word three times while looking in a mirror, the House doesn’t have powers to investigate the president, while Lathrop thinks that intoning the word gives the House the power to do anything it feels like.

      1. Not my view, Nieporent. Not, “anything the House feels like.” Just whatever is necessary and proper to exercise the impeachment power. Regardless of details, structural arguments, or who shot John, the Executive does not have, and cannot have, a negative on impeachment.

        My view: If Trump would cooperate and turn over documents and produce witnesses, then forceful action by the House would not be necessary, and would be inappropriate. If Trump does what he has done, and defies the House, then it is within the power (and is also a duty) of the House to do what it must to make the impeachment power work as intended.

        It could never have been the intention of the founders to structure government in a way that turned impeachment into a nullity. The test of what the House can do is whatever it minimally must do to make impeachment work. The test of what makes impeachment work is whether the process provides the House with all the evidence it wishes to see that bears on charging high crimes and misdemeanors. And, additionally, the test is whether the House has been provided with commensurate process to make a political case in favor of impeachment, or fail in the attempt because pertinent evidence does not support the case.

        1. Not my view, Nieporent. Not, “anything the House feels like.” Just whatever is necessary and proper to exercise the impeachment power. Regardless of details, structural arguments, or who shot John, the Executive does not have, and cannot have, a negative on impeachment.

          Imprisoning people without judicial recourse is not a necessary and proper power.

          Nor is placing liens on real estate.

          Nor is garnishing paychecks.

        2. “My view: If Trump would cooperate and turn over documents and produce witnesses, then forceful action by the House would not be necessary”

          If Trump withholds cooperation, he looks guilty.
          If he actually turns over documents and allows witnesses to testify, he can be PROVEN guilty. Which to choose?

      2. All these comments do not address the power of the Speaker. As I noted above, House Rule XII empowers the Speaker to refer a “matter” to one or more committees whose jurisdiction is “related” to the question. The Speaker referred the matter to three House Committees with two to report to the third. No House vote is required to refer a matter to committee, excepting investigation of a member. Since no such rule exists with respect to impeachment, the “matter” of impeachment has been assigned to the respective committees in accordance with House Rules. As the referral power has been duly delegated to the Speaker, no further action is required. I do note that a referral by the Speaker may be over-ridden by the full House. So, the House’s failure to do so is a ratification of the Speaker’s action. In other words, the argument is backwards. Unless the House votes to stop the investigation, it is fully authorized.

  7. “In the case of Nixon, the impeachment inquiry had the bipartisan approval of over half of the House, on a roll call vote.”

    Not really. The impeachment inquiry began with the Judiciary Committee’s party-line vote 21-17 establishing an impeachment inquiry. That was followed months’ later by a full vote, but public pressure was already turning against President Nixon by February roll call vote.

    1. The last paragraph reminds me of the Onion article about former Vice President Cheney threatening to personally attack America if Kerry won.

      1. It’s a favorite disasterbation scenario regardless of party. Bill Moyer also made a similar statement about Bush, Sr. I think, emphasing he was being serious in his concern.

  8. Pelosi’s House seems to have lost much of its leverage over the Trump administration. The president seems to be assuming that he will inevitably be impeached and that there is no legislative policy agenda to be advanced, and so he has nothing more to lose by refusing to cooperate further with the House. He is now positioning himself for the Senate trial and the electoral campaign.

    A rare bit of decent analysis in a sea of talking points intended to leaf people to think something.

    1. Wait, someone who wrote an essay on a topic was intending to lead people to think something about that topic?

      *gasp*

  9. Seeing the House is conducting a secret investigation and is kicking out members of the minority party I don’t see why any sane administration would work with them.

    1. Members of the minority party were not kicked out; they were present. Some random Republican who wandered in off the street was kicked out in accordance with House rules.

      1. The “random Republican” was from the Judiciary committee, the committee normally tasked with investigating possible impeachments.

        IOW, they’re not only not doing this by the book, they’re making sure the people who actually have jurisdiction over this subject are kept in the dark.

        1. IOW, they’re not only not doing this by the book, they’re making sure the people who actually have jurisdiction over this subject are kept in the dark.

          Those are indeed “other words.” But not remotely correct ones. There is no such “book” or “jurisdiction.”

        2. Brett it sounds like your book is coming more out of your hat. The Parlementatian agrees with the Dems.

        3. “IOW, they’re not only not doing this by the book, they’re making sure the people who actually have jurisdiction over this subject are kept in the dark.”

          Although the Intelligence Committee is under no obligation to allow Judiciary Committee members to attend Fiona Hill’s testimony, John Ratcliffe can report directly, since he serves as a minority member on both.

      2. Explain.
        Was the random minority kicked out of the impeachment inquiry hearing? A hearing where those congressmen that are part of the impeachment inquiry committees were present?
        I know, because I saw it on TV, when Pelosi, and Nadler announced they were opening impeachment inquiry. Nadler is chair of the Judiciary committee. Nadler announced the impeachment was on. The Republican denied access sits on the Judiciary. The judiciary is in on the Impeachment. According to press conference, and that’s how the House is running the impeachment.
        Also, the Republicans have put in a request to the House Parliamentarian, for the rules governing the impeachment. The Parliamentarian has failed to produce any rules.

        1. The rules governing this multipronged investigatory style under were passed by the GOP in the Benghazi days.

          1. Multi pronged? So it is NOT an impeachment inquriy. Got it

            1. Impeachment can be multipronged. See Nixon’s draft articles of impeachment for an example.

            2. “Multi pronged? So it is NOT an impeachment inquriy.”

              Today, iowantoo learned that a President can be impeached on multiple charges.

              Well, could have learned, anyway.

  10. Attorneys for General Flynn have filed for supposedly exculpatory evidence that was only recently obtained by the DOJ: cell phones used by JOSEPH MISFUD as part of an effort by western intelligence agents to manufacture “connections” to Russians.

    https://twitter.com/Techno_Fog/status/1184211806174081024

    Perhaps this was obtained by Bill Barr on his recent trip to Italy.

    Hopefully, this means Brennan, Clapper, impeachment, the Democrats, etc are all soon to be DONE HERE. Maybe Obama too?

    1. Dude, this is basically QAnon adjacent at this point.

  11. The “what if” game is in full swing. Ignoring an IG report about to drop explaining abuse of the FISA warrants to spy on a political campaign. Not to mention the illegal 702 lookups the FBI and CIA are abusing. Abusing to the tune of more that 80% of all looks are illegal. Per the conclusion of 2 separate judges investigations.

    Then the ever expanding investigation by Durham. Expanding because he keeps turning over rocks and finding corrupt CIA, FBI, State Dept, and DoJ activities. All of this coming to the publics knowledge. Competing with an impeachment sourced from an anonymous source, that cant be interviewed, and testimony taken in secret.

    1. Your angry hopes keep having to top themselves to explain why you have to keep waiting for satisfaction.

      At this point, everyone is in on the conspiracy, which as totally been proven, and the Storm is Coming.

      1. I seem to remember when people were complaining about how long the Mueller investigation was dragging on you got your lecture finger wagging and told us that these things take a lot of time.

        I don’t know what will come of Barr’s and Durham’s investigations but I am certain that your show won’t be the only one in town. The IG report will probably come out next week so that may be the first salvo.

        1. The difference between Durham and Mueller, is Mueller had nothing to investigate. The FBI/Intell had already investigating the political campaign of Trump for 2 years by the time they handed all the evidence over to Mueller. As we now know Zero evidence.
          Evidence of spying on a political campaign by the Obama administration is clear and evident. No predicate for the spying is non-existant

          Evidence of crime is clear.

          1. Agreed. Mueller knew in the first week that there was no collusion but dragged it out to keep the hoax in the news and to try to goad Trump into doing something they could use against him. Almost worked.

            Sarcastro seems to be trying to convince himself that because there haven’t been any indictments yet that there won’t be any. McCabe first, then Bruce and Nellie Ohr maybe next. And so forth. There will be songbirds aplenty.

          2. You forgot the investigators Trump sent to Hawaii that were going to prove birtherism. Doubtless that conspiracy theory will be proven as well! Hope springs eternal. Pizzagate, a faked Sandyhook shooting anything is possible if you really want to believe. Anonymous sources are not to be trusted unless it is Q-Anon or a Russian troll. Instead it must be posited that the entire FBI, CIA, NSA, military intelligence and State Department are dishonest and corrupt. Not one principled whistle-blower in any of these agencies willing to go to then Chairman Nunes to out the truth? A parade of Trump appointees testifying to Congress that the Russians interfered in the election on behalf of Trump–all lying because Putin says so. It goes without saying that NASA faked the moon landing, and Galileo was a liar. All you gotta do is want to believe.

            1. @Sarcastro
              Yes you did. And I’m not fantasizing I’m speculating. McCabe is a done deal. There are numerous crimes committed in the last three years or so that I know about, and you and FKS probably do too but you won’t admit it. Sort of like your Hunter Biden is just like the Kardashians. Now that’s some crazy.

              Anyway as I have said before this is a waiting period, a phony war if you will (that you hadn’t ever heard of btw). We will see as it all unfolds.

              1. I know that McCabe was less than candid about his leaks that harmed the Clinton campaign, but I don’t see how that is any way connected to a conspiracy against Trump. As far as I can see, it was just used as a “gotcha” to go after him. Fine with me, but it is hardly evidence that the FBI and our intelligence services were out to get Trump. Nor does it seem to matter that Comey’s statements about Clinton probably blew the election for her–and that the first and ostensible reason Comey was fired, according Rod Rosenstein, was Comey’s damaging commentary on Clinton which was against FBI policy. Had Hilary won, he quite likely would have been gone for that reason. Don’t know how any of that translates into folks committing misconduct against Trump, but I understand that’s all you got, so you run with it.

            2. That’s some serious analysis there pal.

        2. I’m not saying this is crazy BS because it’s taking too long, I’m saying it’s crazy BS because it’s BS and it’s crazy.

          You know what I didn’t do during the Muller investigation? Fantasize about all the indictments that were totally coming down.

          1. Also I enjoy watching you progs go all in on the integrity and the patriotism and the transparency of the FBI, the CIA and the NSA. It’s hilarious watching you twist yourselves into pretzels to defend those you usually cast as boogey men.

            1. When you are disappointed, at whom will you direct the blame?

              1. That’s a fair point; I may well be disappointed and I have said as much in other threads. Institutional loyalty runs deep, sometimes deeper than patriotism or the desire for the truth to be revealed. As to the blame that won’t matter, but the damage to our republic will matter. Trump shrinks to insignificance compared to the abuse of power and the willingness to subvert our system of government. If you can’t see that then too bad but it is real.

                1. So if nothing occurs, it’s not that you were wrong it’s that things were even worse than you thought.

                  They call theories that reinforce themselves regardless of the input conspiracy theories.

            2. Weird change of subject. I’m no fan of the FBI. But that’s not the same as the idea that they are super-duper corrupt and colluding with the CIA, DoJ, and State to do the crimes.

              1. Also? Colluding with Obama, the Clinton campaign, the Mueller investigation, the FISA Court, some British guy, and Ukrainian politicians, to pin the blame on Russia (and hide the server).

                You can tell this is true, because there is so much of it.

                1. You can tell at least some of it is true because of the proof not because of the quantity.

                  1. It feels right and it shifts the blame in the direction we like. Must be true!

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