Impeachment

The Bolton Subpoena

John Bolton may have critical evidence relevant to the House impeachment inquiry; why hasn't the House subpoenaed his testimony?

|The Volokh Conspiracy |

The drama surrounding Congress' power to compel Executive Branch officials to testify under oath in congressional proceedings is becoming increasingly intense and complicated, and I admit that I would enjoy it as an intellectual puzzle more if the fate of the Republic did not hang on how it gets resolved.

The first stage of the impeachment hearings, just concluded, had plenty of excitement.  As the President's defenders continually remind us, there's not a whole lot of direct evidence connecting Trump himself to the politically-motivated scheme to get the Ukrainians to subject the Bidens to a criminal investigation, not for the purpose of advancing US national security interests for the purpose of helping Trump get re-elected in 2020.

It is ironic—to put it as mildly, and as respectfully, as I can—for the President's defenders to raise this particular defense, given that it is the President himself, of course, who is preventing anyone who might be in possession of such evidence—e.g. Messrs. Bolton, Mulvaney, Pompeo, Giuliani, et. al.—from supplying such evidence, if it indeed exists.

The President (and his lawyers) have chosen not to comply, and have ordered Executive Branch officials not to comply, with any congressional subpoenas, on the ground that "the President and his immediate advisors are absolutely immune from testimonial compulsion by a congressional committee on matters related to their official duties." [See the DOJ's memo regarding the subpoena issued to Don McGahn in the Mueller Report hearings (May 20, 2019), and Letter of White House Counsel Pat Cipollone to Speaker Pelosi, Chairman Schiff and others (Oct 8, 2019)):   .

"Congress may not constitutionally compel the President's senior advisers to testify about their official duties.  This testimonial immunity is rooted in the separation of powers and derives from the President's status as the head of a separate, co-equal branch of government. Because the President's closest advisers serve as his alter egos, compelling them to testify would undercut the "independence and autonomy" of the presidency, and interfere directly with the President's ability to faithfully discharge his responsibilities.

This is an assertion of breathtaking scope, and it has ramifications far beyond its ramifications for the impeachment inquiry, as important as those may be. The President is not simply claiming that senior advisors can invoke a privilege of one kind or another to avoid testifying about specific events or conversations—"executive privilege," for instance, or the privilege of confidential communication, or a national security privilege, or the attorney-client privilege, or even the 5th Amendment privilege against self-incrimination—depending upon the events or conversations in question. Nobody disputes any of that.

But an absolute immunity from any compulsion to testify before Congress? Congress cannot compel the Secretary of Defense to testify about combat operations in Syria, or the development of new weapons systems? Congress cannot compel the National Security Advisor, or the Secretary of State, to testify in a proceeding examining a possible bribery scheme conducted at the behest of the President? Really?

I am happy to say that this is not the law of the land.

The DOJ's Office of Legal Counsel would like us to believe that it is; OLC has made the argument for the existence of such an absolute immunity in a number of memos—beginning, I believe, with one authored by William Rehnquist, then at the OLC, in 1971.

But that's just the Executive Branch deciding the scope of its own powers—a "We have considered the matter and we hereby give ourselves an absolute immunity from congressional oversight" kind of thing.  But as Madison put it in the Federalist, "No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. should be the judge in his own case." In a system like ours, governed by the Rule of Law, the Executive Branch does not—and cannot—have the last word when it comes to the scope of its own powers.

The Executive Branch has had the temerity to submit this claim of absolute immunity to judicial scrutiny and evaluation only twice.  In Comm. of the Judiciary v. Miers, 558 F.Supp.2d 53 (DDC 2008), the court rejected it outright, declaring it "unprecedented" and "without any support in the case law." [The government did not appeal that ruling, fearing, perhaps, that an appeals court decision would affirm the obviously correct result of the district court and they'd have to throw out all those OLC memos …]

And yesterday, Judge Jackson of the DC district court again rejected the OLC position in a comprehensive, 118-page opinion upholding the congressional subpoena issued to former White House counsel Don McGahn to testify at the hearings surrounding the Mueller investigation:

OLC's long-held view that senior-level presidential aides have absolute testimonial immunity is neither precedential nor persuasive … There is no principled basis for concluding that senior-level presidential aides should have absolute testimonial immunity….

To make the point as plain as possible, it is clear to this Court that, with respect to senior-level presidential aides, absolute immunity from compelled congressional process simply does not exist. Indeed, absolute testimonial immunity for senior-level White House aides appears to be a fiction that has been fastidiously maintained over time through the force of sheer repetition in OLC opinions, and through accommodations that have permitted its proponents to avoid having the proposition tested in the crucible of litigation. And because the contention that a President's top advisors cannot be subjected to compulsory congressional process simply has no basis in the law, it does not matter whether such immunity would theoretically be available to only a handful of presidential aides due to the sensitivity of their positions, or to the entire Executive branch. Nor does it make any difference whether the aides in question are privy to national security matters, or work solely on domestic issues….

And, of course, if present frequent occupants of the West Wing or Situation Room must find time to appear for testimony as a matter of law when Congress issues a subpoena, then any such immunity most certainly stops short of covering individuals who only purport to be cloaked with this authority because, at some point in the past, they once were in the President's employ….

The United States of America has a government of laws and not of men. The Constitution and federal law set the boundaries of what is acceptable conduct, and for this reason, as explained above, when there is a dispute between the Legislature and the Executive branch over what the law requires about the circumstances under which government officials must act, the Judiciary has the authority, and the responsibility, to decide the issue….

As far as the duty to appear is concerned, this Court holds that Executive branch officials are not absolutely immune from compulsory congressional process—no matter how many times the Executive branch has asserted as much over the years—even if the President expressly directs such officials' non-compliance. This result is unavoidable as a matter of basic constitutional law, as the Miers court recognized more than a decade ago.

Today, this Court adds that this conclusion is inescapable precisely because compulsory appearance by dint of a subpoena is a legal construct, not a political one, and per the Constitution, no one is above the law. That is to say, however busy or essential a presidential aide might be, and whatever their proximity to sensitive domestic and national-security projects, the President does not have the power to excuse him or her from taking an action that the law requires. Fifty years of say so within the Executive branch does not change that fundamental truth. Nor is the power of the Executive unfairly or improperly diminished when the Judiciary mandates adherence to the law and thus refuses to recognize a veto-like discretionary power of the President to cancel his subordinates' legal obligations.

[By the way, the judgment in this case should not be confused with the judgments in several other on-going cases where the President has raided even more outrageous immunity claims, arguing not only that he is absolutely immune from a state criminal investigation [see "The Fifth Avenue Immunity"], but that his immunity extends to his accountants and tax preparers. Those, too, have been summarily, and properly rejected by the courts.]

The DOJ has said, apparently, that it will appeal this decision, but I doubt that it will, for the same reason that it didn't appeal the decision in Miers: there is simply no basis in the law on which to base this immunity, and an appellate court decision to that effect would mean that Executive Branch officials could no longer in good faith rely on this thoroughly discredited OLC position. [I wouldn't be surprised if DOJ went ahead and filed a notice of appeal, just to keep stalling, but then voluntarily dismissed the case before the appeals court actually heard the case]

So this brings us John Bolton.  Bolton, along with other senior advisors to the President (Mulvaney, Pompeo, Giuliani et al.), are clearly the only people, other than Trump himself, who can provide us with direct evidence on the question that is now, as it was in 1974, the central one: What did the President know and when did he know it?

The House committee requested Bolton's testimony, but he declined to appear voluntarily. The committee then made a strategic decision not to issue a subpoena demanding that he appear. The stated reason was that the action would be a futile one; Bolton wouldn't comply, and the House would have to take him to court (as it did with McGahn) to compel him to do so, and that could take months and months to wind its way through the courts.

I was not, initially, persuaded that that was a strategically wise decision, and Judge Jackson's decision yesterday may alter the calculus somewhat. Now that the local federal court has declared that there is no basis for non-compliance with a subpoena, it's a little more difficult for Bolton to decline to comply, and a little easier for the House to hold him in contempt if he does so.

But if the goal is (as it should be) to obtain this critical testimony, under oath, from the president's closest aides, a recent essay posted at talkingpointsmemos.com has convinced me that there may be more to recommend the House's decision to forego subpoenas than I had initially thought. The argument goes like this: The House managers at the Senate impeachment trial can, under the Senate's Impeachment Rules, call Bolton and the others to testify at the trial; Chief Justice Roberts, who will be the "Presiding Officer" at the trial, is authorized to "rule on all questions of evidence, including but not limited to questions of relevancy, materiality, and redundancy of evidence"; should any of the aides or former aides decline to appear on the grounds of a purported immunity, the Chief Justice will have to rule, immediately, on their claims; it is very difficult to imagine, given the absence of any serious constitutional basis for the immunity claim, that Chief Justice Roberts will rule in the advisors' favor. Thus, "by moving directly to impeachment, the House gets its best chance of winning the testimony of Bolton, Mulvaney, and others, and doing so in a timely fashion."

I have no idea if this is the thinking inside the House chambers, but it strikes me as plausible and potentially the most likely to actually produce the critical testimony. Stay tuned for more.

NEXT: Hate Crime Motivation Enhancement in Illegal Gun Possession Case?

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  1. “Congress may not constitutionally compel the President’s senior advisers to testify about their official duties. ”
    vs
    “Congress cannot compel the Secretary of Defense to testify about combat operations in Syria, or the development of new weapons systems?”

    Is quite a bait and switch, and it would be insulting your intelligence to pretend you don’t know that. Any administration official confirmed by Congress is subject to testify, or be impeached if they refused.

    Presidential advisors that are not subject to confirmation are also not subject to congressional whims.

    1. Any administration official confirmed by Congress is subject to testify, or be impeached if they refused.

      This is based on what, other than “it would be helpful to Trump right now”?

      1. Well let me ask you a hypothetical then, say Congress decided they didn’t like a Supreme Court decision and they decided to subpoena all notes of the internal memos circulated between the justices in deciding the case. And subpoenaed a justices clerks to find out what they talked about.

        Would the supreme court roll over and give Congress what they asked for?

        How is that different than what they are asking here?

        Discuss.

        1. Very good hypothetical, that I suspect Post won’t address.

        2. It’s long been established that the independence of the judiciary shields it from this sort of harassment. There’s no such long-established norm for the executive.

          1. Established by who, the courts? See what that gets you. Lincoln, Jefferson, and others defied them and their vaunted independence.

            1. What did Jefferson do?

              ‘And others’ doing a lot of work there.

              Also when your two examples are from the 1800s, you may be reaching just a tad.

          2. Try making that argument to a originalist court, there are 3 branches of government, separate but equal, that means one can not be more equal than the others unless it’s spelled out like the speech and debate clause. What provision in the constitution gives the judiciary more deference than the executive? And keep in mind the justices are confirmed by Congress while the President is elected by the people, which should and does confer more independence, not less.

            And I think you are wrong about no long established principle of deference to the executive, if anything it’s greater especially in foreign affairs and defense.

            1. ” there are 3 branches of government, separate but equal, that means one can not be more equal than the others…”

              I’m not a lawyer, but I find these legal issues interesting, so I wondered, under this principle of separate but equal, how it is that a court, especially the Supreme Court, is able to rule on the constitutionality of laws passed by that “separate but equal” branch of government, Congress? If the equally important principle of oversight and a balance of power is to be effective, why should Congress not be able to exercise it vis-a-vis the Executive?

              1. Congress has oversight over the cabinet departments, and the power of the purse those are clear constitutional perogatives.

                But answer the hypothetical, if the branches are separate but equal can Congress compel disclosure of internal court documents and testimony from SCOTUS clerks when conducting oversight of the judicial branch? Why are the courts internal deliberations sacrosanct, but not the executives?

                Congress has the speech and debate clause that clearly puts their internal deliberations beyond the reach of the executive and courts, but the courts and the executive should be in the same boat.

    2. Kazinski writes: Any administration official confirmed by Congress is subject to testify, or be impeached if they refused.
      Presidential advisors that are not subject to confirmation are also not subject to congressional whims.

      You’d be more persuasive if you wrote intelligible things. First off, what does “subject to testify” mean? The Sec’y of Defense is “subject to testify”? Are you saying that the Sec’y of Defense cannot assert an immunity, but an advisor not subject to confirmation can?
      But that doesn’t seem to capture it, for you next sentence states that advisors “not subject to confirmation are ALSO not subject to congressional whims.” Hmm. Now I’m even more confused. Can you try to explain what you are actually trying to say?

      1. Read page 4 of Obama’s Deputy AG James Coal to Darrell Issa June 30, 2012:
        “Such compelled disclosure would be inconsistent with the separation of powers established in the constitution and would potent significantly alter the balance of power between two co-equal branches of government ”

        That case was discussing the subpoena of documents from the AG’s office, and the Obama administration disputed the authority of Congress to compel disclosure in a department subject to congressional oversight. This case is of course compelled testimony of a White House official not subject to congressional oversight.

        1. Whoops, spellcheck is not my friend there that’s James Cole, and potentially not potent.

        2. You forgot to mention that Holder’s position is no longer viable.
          It was rejected by the judge and the AG had to obey the subpoena.

          1. Well of course, but I said from the gitgo I didn’t think it applied to cabinet officers, only to White House advisors.

            That has not been decided, and see my hypothetical above to see why Trump will win that argument.

        3. It was actually a fairly often used tactic by the Obama administration.

          1. White House Social Secretary Desirée Rogers was asked to testify before Congress, the White House refused to let her testify

          2. David Simas, the director of the Office of Political Strategy and Outreach was subpoenaed, but the White House refused to allow him to testify before Congress. In a letter to Congress, White House Counsel Neil Eggleston claimed Simas was “immune from congressional compulsion to testify on matters relating to his official duties” and thus would not appear before the committee.

          3. Ben Rhodes, a speech writer for Obama who worked on the Iran Deal. ” when congressional Republicans asked him to explain himself, the White House refused, saying it would intrude on the “separation of powers” of the federal government.”

          1. First, this court case says that no longer works.

            Second, those are not subpoena cases I don’t think. Negotiations like this have been the norm since well before Obama. Not that the GOP has much memory before 2008 these days.

            Looks like those days are over. Why aren’t you happy?

            1. I really don’t think this court case said that, Eric Holder tried to take material that was clearly DOJ and subject to oversight and transfer it to the White House and claim executive privilege. I think that was correctly decided.

              It’s a far different case to say a white house advisor that is not in a department subject to oversight is covered under that ruling. I think it’s clear a criminal subpoena would have to be honored but I’ve never seen a congressional subpoena enforced against a presidential advisor like Bolton or McGahn.

          2. Three times is not “fairly often.”

            This dredging for “Obama did it” is ridiculous.

            1. 3 times is often enough.

              But it’s not an ‘Obama did it’s, these case often hinge on prior practice and precedent. If a previous administration prevails in a separation of power or privilege argument it is a precedent that will be relied upon by subsequent administrations, and deferred to by the courts.

    3. There is an additional bait and switch in there, but nice catch on this one.

      The other one is the difference between a criminal court and congressional committee or congress. One doesn’t have to be “above the law” to not be subservient to congressional whims. What the house is doing is not a criminal matter, it is a political one. Thus the bait is the correct commentary about criminal investigation and the switch is using that in a political one.

      The House doesn’t want a criminal investigation or trial. If they did they’d be tying their own political hands and Trump would indeed win handily. They wouldn’t be able to go on fishing expeditions, ramble on in grandstand mode, lead the witnesses, and a whole host of other things they have been doing.

      As such, whatever the facts are about a criminal case are, they do not apply to a political show.

      1. The other one is the difference between a criminal court and congressional committee or congress. One doesn’t have to be “above the law” to not be subservient to congressional whims.

        Given that this administration also takes the position that they are immune from criminal court, your argument is a bit flawed.

  2. Worst Post ever!

    Too many targets, I see Kazinski already bombed one. Here is another.

    “the Chief Justice will have to rule, immediately, on their claims; it is very difficult to imagine, given the absence of any serious constitutional basis for the immunity claim, that Chief Justice Roberts will rule in the advisors’ favor”

    The Senate has impeachment rules! They are on the Senate website!

    If 1 senator requests, all evidence/motion questions are decided w/o debate by the entire Senate. [or Roberts can just defer, like Reinquist did, to the Senate w/o a ruling] Roberts is not going to get to decide anything remotely controversial.

    Worst Post ever!

    1. It seems likely three Republican Senators would vote to uphold the requirement to testify whether or not they’d vote for the final conviction. VP tiebreaker doesn’t apply—Roberts would break a 50-50 tie. Mitch McConnell has none of his normal Majority Leader power.

      Post made a serious, substantial argument.

      And all without exclamation points!

      1. He did not even mention that the Senate has a role. Its like making an argument on Civil Procedure without reference to the Rules of Civil Procedure.

        Thinking that Roberts has the final say on anything in a trial is neither serious nor substantial.

        1. Well, except that he cited and linked to the Senate Rules in the article. Also linked to the essay that details exactly what Roberts may and may not do under the Senate rules, which needless to say, are very different from your “Thinking that Roberts has the final say on anything in a trial is neither serious nor substantial.”

          Look, this isn’t even a partisan point. Read the essay and tell us how and why you disagree with Post’s point that one reason the House may not pushing subpoenas harder, is that the Rules of the Senate may contain a way to compel testimony with the support of only three Republicans (Collins, Murkowski, and Romney?), and that may be better option trying to enforce them through lengthy judicial processes.

      2. There would be no “tie.”

        Either the Senate reaches the 2/3’s requirement to convict or they don’t.

        1. The topic is that motions (such as to compel testimony) need only 50%+1, with ties broken by Roberts (and likely, for motion to proceed if there’s no majority against them).

  3. “the Chief Justice will have to rule, immediately”

    I’ll have to look back to see Post’s outrage when during the Obama administration Eric Holder, the congressionally confirmed AG as opposed to the unconfirmed Bolton, stonewalled Congress’ subpoena for Fast and Furious records by claiming executive privilege. That took 7 years to decide in the courts.

    “Both the Obama administration and the House objected to aspects of her decisions, but the executive branch had the larger grievance, as Jackson rejected the Justice Department’s longstanding position that courts have no proper role in resolving battles between Congress and federal agencies over access to records.”

  4. As the President’s defenders continually remind us, there’s not a whole lot of direct evidence connecting Trump himself to the politically-motivated scheme to get the Ukrainians to subject the Bidens to a criminal investigation, not for the purpose of advancing US national security interests for the purpose of helping Trump get re-elected in 2020.

    Yet another post (no pun intended!) which ignores that there was real Biden corruption to investigate which the previous administration had ignored. I don’t doubt there was a certain amount of glee at Biden running for President, but the not-so-hidden assumption is that you can not investigate an active politician for corruption.

    1. (a) Witnesses testified, several times over, that Trump et al. didn’t care about whether an investigation was actually conducted, as long as one was announced, which doesn’t exactly indicate a principled anti-corruption stance.
      (b) The DOJ can investigate Biden till the cows come home. Since when does a U.S. president say “gosh, I must learn the truth about this! I will outsource the investigation to a notoriously corrupt foreign country’s justice system!” Answer: when said president wants innuendo, not results.

      1. Thrax.
        A: That’s first off, not even hearsay. That’s their opinions, formed about a man that they plainly disliked or despised. Second off, it’s irrelevant. The entire basis of capitalism and democracy is that they turn personal motive to the public good. “I want to look good to the public, let’s crack down on crime” is a stupidly common mantra.

        B: It’s obvious Trump doesn’t trust his own intelligence agencies. Given the actions that they have given to this impeachment hearing and the fact that they were at least tacitly accepting of the Bidens’ actions during the Obama administration, I genuinely question whether they would attempt to cover up anything they did find out of personal loyalty.

        I confess that I would have preferred a proper, American investigation. However, we would not have been able to start one without this controversy. Don’t pretend that we wouldn’t be having a similar conversation where people are demanding Trump’s head for using his police powers to attack his pure and innocent opponents.

        1. A. Trump’s own appointee, Gordon Sondland, dislikes and despises him? Boy, he’s really got to screen those guys better. And this has nothing to do with “turning personal motive to the public good” because there’s no attempt to pursue the “public good.”

          B. Oh, I see. If the president decides he doesn’t trust the people charged by U.S. law with doing something, he can simply go around them and tell a foreign country to do it. Can’t see any pitfalls or downsides there.

          Trump’s “go after my enemies, Bill Barr” abuses of the rule of law are a separate topic. The DOJ is supposed to make independent decisions about whom it investigates, prosecutes, etc. Trump and Barr are obviously ignoring that.

          1. Well, at least Barr isn’t Trump’s self described “wingman” nor does he engage in meetings with the spouses of people under FBI investigations…

            1. No, Barr is a whore for Trump, who is perfectly willing to lie to the American public to protect Trump, will refuse to investigate credible allegations against Trump, etc etc.

              Why you think this is laudable or ‘better’ behavior in any way is, well, bemusing.

              1. Can you explain how he is a whore for Trump? Allowing Mueller to finish his witch hunt unimpeded?

            2. meetings with the spouses of people under FBI investigations

              That would be a Page A26 story these days if it made the news at all. It’s hilarious that you’re still trying to make it a big deal.

              1. Yes, it’s quite common for the AG to meet with the spouse of a suspect in a major FBI investigation while also changing the language of the investigation to match said spouse’s talking points. Happens all of the time.

                1. You’re just writing fan-fiction now. There was no language change.

                  1. Comey says otherwise. Now, true, he’s a lying SOB…

                  2. Well, there was and there wasn’t. Trumpkins are playing stupid, and pretending not to understand the concept of a “draft.”

                    (Or maybe they’re not playing/pretending. They manage to argue that an initial draft prepared before an investigation is over proves malfeasance because it shows that the findings were predetermined before the evidence was in and that changing the draft proves malfeasance because it shows that they altered their findings when they got more evidence.)

          2. Sondland was bring intimidated by the Congressionally directed protests against his businesses.

            1. Trumpers have an excuse for everything, except the actual facts.

        2. I confess that I would have preferred a proper, American investigation. However, we would not have been able to start one without this controversy.

          Why not? What stopped trump from referring the matter to DOJ if he had actual evidence of possible wrongdoing?

    2. which ignores that there was real Biden corruption to investigate which the previous administration had ignored.

      Also being ignored by Senate Republicans. Graham could bang gavel tomorrow and subpoena the Bidens to testify and not only would they come but national TV would cover it. So why don’t they do that I wonder?

      1. Because subpoenaing Biden is not what the President wants. He want to be able to yell that Biden is corrupt. Biden testifying is very likely to yield nothing helpful to the President. Also it is a dangerous precedent and I doubt that Congress persons and Senators want to be dragged to testify about every relative that may pose a conflict of interest. I believe the list of subpoenas could get long very fast.

        1. You are right that at this point in time it would make no sense to have Biden testify, but if Trump gets impeached his whole defense will be destroying Joe Biden.

          That’s probably why the Democratic Congresswoman from the 14th district in Mich(Clinton +18) announced the she opposes impeachment now and favors censure.

          That may also explain why Biden has tumbled to 4th place in NH, the focus on Biden is hurting him a lot more than Trump, at least by the polls.

          1. “Destroying Joe Biden” won’t be a defense. Any more than “I robbed the bank because in third grade one of the tellers ratted to the teacher about me cheating”.

            1. “Destroying Joe Biden” won’t be a defense.”

              Its not a real trial, its a political trial.

              The real defense is the 90% GOP Trump approval.

              1. “The real defense is the 90% GOP Trump approval”

                This is what leftists with TDS don’t get. The presidency is his sword and shield, with the bully pulpit and pardon power and more. How could one ever think he would resign like Nixon? To resign would be to give away the only thing keeping the left from utterly destroying him financially and personally. This is apart from the support that he has earned by deeds done and promised.

                1. You really need to think that the left has control of a lot of America (financial, judicial) if an innocent rich man can be ruined.

                  1. Ahem. I see you don’t deny the logic of it, that there is no reason to give up the sword and shield of the presidency. Innocence or guilt has nothing to do with it.

                    And yes, if Trump resigned tomorrow, all the probes in CA and NY would continue apace. Moreover, using his same language they now want to “lock him up” and will go after him for some form of tax fraud or something….like Cuomo is doing now to the NRA with the explicit goal of destroying it for all time. If Cuomo will go after the NRA, he can go after Trump. Oh wait, he already is.

                  2. Are you suggesting that the economic elite don’t predominantly vote D? Because the demographic data doesn’t support your assertion.

                    1. I’m suggesting that voting D doesn’t mean you’re going to form a blood feud against Trump when he’s no longer President.

                  3. It matters not if he’s violated some law somewhere in his normal life. Billionaires have their fingers in more pie than I’ll ever see in my lifetime.

                    That there might be something to hide is part of the presumption to disallow the powerful to go on fishing expeditions through their opponents’ papers.

                    Do you really think a scouring of Nancy or Bloomberg would turn up nothing?

                    “If you’ve done nothing wrong, you have nothing to hide” completely misses the point. The 4th and so on are not about protecting the guilty but preventing the powerful from hurting opponents.

                    1. And yet billionaires rarely go to jail.

                      It’s not because the left is holding their dogs in abeyance. It’s because money buys things, including justice.

                    2. “And yet billionaires rarely go to jail.
                      It’s not because the left is holding their dogs in abeyance. It’s because money buys things, including justice.”

                      Marc Rich, calling, line one.

                    3. I mean, thanks for proving my point AL?

                      Just because you can’t criticize your side as part of the problem doesn’t mean I can’t.

                    4. “If you’ve done nothing wrong, you have nothing to hide”
                      Said every cop to suspect during interrogation. Ask any defense attorney their answer to that statement.

          2. They don’t have to destroy the Bidens, all they have to do establish that an investigation of the confluence of Hunter’s Ukrainian income and Joe’s Ukrainian political interventions appeared in the interests of a nation about to give a boatload of money to the Ukraine.

            1. If Joe Biden was just some run of the mill oligarch the whole thing would be seen as prudent.

              1. You are presuming he is not? It makes more sense that Ukraine’s Oligharc’s tried to tank Trump’s election in a quid pro quo from the democrats, as the Ukrainian regime and Ukrainian oligharcs had far more channels of communications with US politicians than Trump had with Russia.

                Didn’t Reagan tank Jimmy Carter’s election by making a deal with the Iranians, asking them to delay the release of US hostages so that Jimmy would not be claimed a hero if they were released? How criminal is that? Yet Reagan a two bit actor who acted far better job as an actor in the white house than he did in movies has an airport, buildings and aircraft carrier named after him. Since when did America become all high and holy?

                I believe it nothing but a circus, a diversion to keep the citizenry off the real topic, the endless illegal and unconstitutional globalist wars in the middle East, more than 20 years now.

                American politics are as real as WWF Professional Wrestling. Choreographed, orchestrated theatrics for the gullible masses.

                1. Didn’t Reagan tank Jimmy Carter’s election by making a deal with the Iranians, asking them to delay the release of US hostages so that Jimmy would not be claimed a hero if they were released?

                  No. There’s no evidence to support that.

                  But if he had, that would indeed have been awful.

      2. Because there was no “real Biden corruption” and Graham & Co. know that perfectly well.

        1. NOTHING funnier than uneducated goobers (both sides) debating abstract Constitutional theory … when it’s entirely tribal.

      3. That does seem to be the game plan, but they are waiting for the Democrats to show their hand first. So far, there hasn’t been much except innuendo, opinion, and sophistry.

        If I’m reading the wind right, the counter will come in the Senate during the actual impeachment, when the Democrats will not be as able to counter, and they will have Justice Roberts controlling the debate. While Roberts’s powers will be limited, he will have the authority to keep things on topic and to eliminate nonsense. At that point, the Democrats will have to debate on hard facts, and the Republicans will have both tactical and strategic advantage.

        1. Hope springs eternal. If it wasn’t the IG report, it’ll be the Senate.

          1. The Democrats may be pot committed, but I still doubt they will actually impeach. It’s too risky. I don’t think it’s much of a secret that Pelosi’s favored candidate is Biden, the risk of fatally damaging Biden while leaving Trump bruised but still viable is not negligible. Trump will beat any of the other candidates handily bruised or not, but it would not take a lot of damage for Joe to lose the nomination to a cleaner but less viable candidate.

            1. Neither you nor I know how this will end up, but your predictions about Dem thinking are even less informed than mine.

        2. “While Roberts’s powers will be limited, he will have the authority to keep things on topic and to eliminate nonsense.”

          He will enforce the rules established by the Senate. If those rules allow nonsense, then nonsense there will be.

      4. Because the smart play is to force the Dems in the House to actually take the shit they’ve been sitting on the toilet for so long moaning about and vote for impeachment and make it the central focus of the election. Assuming fire under the smoke, they would also want Biden to clinch the nomination so they could have the Senate kneecap him by requesting the documents that prove such.

      5. why don’t they do that I wonder?

        Because they no there’s nothing there?

        What are they going to investigate? What favor did Biden do to get his son the job?

        And don’t start raving about that billion dollars or whatever. The complaints about that are complete BS, as you’d know if you stuck your head out of the RWNJ bubble.

  5. The United States of America has a government of laws and not of men.

    And yet men, in violation of the highest laws, the Constitution and Bill of Rights, have been seeking to use the power of government, and investigation, to harm a political opponent by rummaging through everything they can, switching dastardly deeds like Taylor Swift switches boyfriends.

    So spare me the facetious outrage.

    I could grant you Trump screwed up here, and still it is the lesser crime That’s one incident. The rummaging is dictatorial slippery slope stuff.

  6. I agree that a Congressional impeachment inquiry can subpoena anyone it wants, and there is no absolute immunity for Presidential advisors. After all, the constitution gives Congress express textual authority to demand reports even from heads of departments.

    However, Madison’s point is well taken. Who judges the scope of the Supreme Court’s jurisdiction? It is in many ways this problem that has led to where we are, with half the country so enraged at the Supreme Court, so contemptuous of its claim to legitimacy, that it is willing to accept a possibly corrupt president as a price of getting the judicial appointments it wants.

    The Supreme Court has spent most of its energies and prestige in the past few decades on a series of controversial social question that the Constitution gives federal courts no express textual mandate to decide. In the 19th century, a question the Supreme Court was similarly confident it had settled led to civil war.

    Does the Supreme Court retain sufficient to prestige to address a genuine constitutional crisis in a way that most of the nation can accept as fair and legitimate?

    If it keeps creating an impression it is the final arbiter of all important social questions, and continues to make 5-4 decisions that render sharp dissents from half the justices enrage half the nation, will it be able to have any influence in a real crisis?

    1. Good question.

      So far it seems the contending sides are each committed to getting a Supreme Court to their liking, sharing a common commitment to the principle of judicial supremacy even while denouncing the Supreme Court when it rules against their own side.

      The major exception to far has been marijuaua. The states, instead of rolling over for the Court’s Raich (sp?) decision, kept licensing various forms of legal mj. The pushback is having some victories – especially in Congress which has to an extent followed the lead of the states and permitted more federalism than the Court said was constitutional. But it was the states who got the ball rolling before having assurance Congress would back them. If they were into judicial supremacy they wouldn’t have dared challenge the Raich decision in the first place.

    2. “After all, the constitution gives Congress express textual authority to demand reports even from heads of departments.”

      You are arguing something not in dispute, there is a big difference between heads of departments confirmed by Congress and the President’s handpicked advisors in the White House not subject to congressional approval.

      They are not immune to criminal procedings, but they are immune to congressional oversight.

      1. Suppose there is evidence these “advisors” did more than just advise, suppose (hypothetically of course) that there was a claim they contacted foreign leaders and purported to represent the United States or the office of the President. If people were never confirmed to any office by Congress, wouldn’t any claim that they purported to weld or weld the power of the United States make them even more subject to oversight than people who at least had a claim they had a legal right to do so?

        I don’t think that confidential advice given the President or anything that might be covered by “advisor” is at issue in these subpoenas. What’s at issue is things like phone calls to foreign leaders purportedly on the President’s behalf. That’s exercising power, not giving advice.

        1. The only remedy to such hypotheticals is…

          Wait for it…

          Impeachment.

        2. Here is the answer: claiming authority under color of law is an actual crime. If someone who is not duly and legally authorized to represent the government in whatever capacity attempts to do so, they personally are legally culpable and a criminal investigation by the DoJ would be appropriate and meet the criteria of a legal action.

          However, attempting to compel opinions and multi-hand references and assumptions about the POTUS are not that. If they think, for example, that Giuliani did that then they would need to refer that to the DoJ and let them do their job. If they think an ambassador misrepresented the POTUS’s explicit instruction to the third party then again it should go to the DoJ for criminal investigation.

          Yet somehow every time the correct answer is to send it to DoJ rather than put on a kangaroo court they back out of it. When pressed they admit it is all political.

          1. It’s just possible that they don’t think the Barr DOJ is going to handle this in an evenhanded way. Crazy idea, I know.

            1. If that’s they way you feel, request a Special Prosecutor. That always works out great.

  7. “the fate of the Republic”

    I certainly think the impeachment is an important thing, but I’m not sure I’d escalate the stakes that high. A Democratic victory would be unfortunate, and would replace Trump with a probably-weaker President, but as far as threats to the Republic’s existence I’d rather list things like the national debt, the culture of death, or for that matter the risk of nuclear war (which is still a thing even after history ended in 1989).

    I’m against a special executive privilege – much less an immunity from subpoena – and it’s too bad the Supreme Court didn’t kill the idea dead back in 1974. They scortched the snake, not killed it.

    But as that judge noted, Presidents of all parties have been claiming special privileges for half a century. I believe it started in 1954, when Eisenhower was fending off demands from the Senate’s Government operations committee – since those demands emanated from the devil himself, Joe McCarthy, then Eisenhower was the designated Good Guy in claiming privilege.

    1. “I’m against a special executive privilege”

      Without it the President’s only reliable counsel would be his spouse or his dog. You would have the unending spectacle of a hostile Congress hauling advisers in to try to break them down and get whatever could be used against him.

      1. There’s also the attorney-client privilege.

        And unless I’m mistaken, before demanding information from *any* witness, Congress has to have a question relevant to the subject under inquiry.

        Plus the executive branch has the resources to investigate members of Congress for suspected crimes.

        In any event, given the bipartisan consensus in favor of broad Presidential powers (so long as the Right Person is President), I doubt that my carping will get listened to.

        1. As with all of these protections, attorney client privilege is really abour roadblocks to the powerful investigating enemies.

          Note how effortlessly it was swept away exactly where it was designed to be most important — when the most powerful are trying to hurt each other.

          This is troublesome.

          1. …That’s not why privilege exists at all.

    2. “Transfer $1 billion to my personal bank account or I’ll nuke your country in 48 hours.”

      Let’s say there’s evidence that this call was made but it’s only third-hand hearsay. Obviously an investigation shouldn’t be blocked. Subpoenas have to be issued.

      Tone down the details, and this is what seems to have happened here. Extorting a foreign power for personal gain. My point: some claims of executive privileges are real, some are bogus.

      1. “Tone down the details, and this is what seems to have happened here.”

        Tone down the details from “pay me or I’ll start a nuclear war” to “investigate Biden or I won’t give you free money or hold a press conference with you.”

        To me, this difference in degree looks like a difference in kind. And I’m not saying it has been proven.

        But the basic point about executive privilege, call it what you will, is that such a thing does not exist.

        If the Democrats establish a precedent that in future no occupant of the White House can use executive privilege, that will be a good thing. But I think the precedent they’re going for is more on the order of “it’s bad when they do it and OK when we do it.”

        1. How about,

          “Transfer $10 million to my campaign fund or I won’t release funds that Congress has told me to give you, on the grounds that helping you this way is in the national interest of the US.”

          Just dismissing it as “free money” is a distortion.

          1. How about ‘investigate whether Joe Biden used US muscle to protect his son’s cronies or I’m using that same muscle to cut you off.’

            Not saying that is what happened, but it is certainly more topical than your hypothetical.

          2. “a distortion”

            Nope. What did Ukraine have to do in exchange for the money, if it’s not free?

            1. In any case, is Ukraine entitled to invoke U. S. Constitutional law in dealings with representatives of the U. S.?

              I also note that you’re missing the point of the difference between a nuclear war and not receiving free money.

            2. Ukraine had to spend it fighting Russia.

              Besides, whatever Ukraine thought about it, the fact is that it was not just some act of generosity by Congress. It wasn’t like your kid’s allowance.

              The money was appropriated not to give Ukraine a gift, but because Congress decided that giving Ukraine the money was in the US national security interest. Doing things like that is part of Congress’ job description.

              When Trump withholds it for BS reasons he is not only breaking the law and abusing his power, he is damaging the country, at least as far as Congress is concerned.

              1. From the Ukrainian point of view it’s free money. From the standpoint of international law, they had no basis to demand payment. There wasn’t an agreement – I think the term is a “treaty” – requiring the money to be paid.

                The House can say that, from the *American* point of view, there was a *domestic-law* obligation to deliver the money, but that’s an internal matter for us to work out through out traditional methods of rational, sober public deliberation.

                1. “Ukraine had to spend it fighting Russia.”

                  If you give me a gift certificate for Golden Corral, it’s still free even though there are strings attached to it – I have to spend it at Golden Corral.

              2. So, ignoring the question of whether we should give them money, a POTUS isn’t necessarily mandates to give the money.

                I’d have to see the text to confirm this case but the bills passed normally authorize, and often appropriate the funds but do not specify when or mandate the giving of the money. As such, absent an explicit statement mandating the spending and doing so on or by a specific date, the executive branch has discretion on when and how it gets disbursed.

                Aid is often rescheduled, traded, or withheld by the executive branch. So the mere act of doing so wouldn’t necessitate a breaking of the law. An appropriation is not a law to be broken or abused by, it is a permission and allocation of funds.

                Furthermore with Ukraine in particular, the last bill I recall had conditions and criteria that conditioned release of the funds – it wasn’t a sure thing. Thus to claim that because the Congress approved it it had to go out is to be incorrect.

                The history of corruption there goes back many, many years and congress has to my knowledge never mandated unconditional aid. Even if it had, the OMB has the authority to do it on any timeframe as long as it is without the fiscal year. Apparently, in this case, the OMB has told to DoD back was early as June (IIRC) that they wouldn’t be disbursing the funds until the last two weeks of the fiscal year. No reason has to come to light as to why.

                It is almost as if there was some paper-pusher reason and Trump is “taking credit” for it, trying to look like he may have been making a deal.

          3. How’s this instead…

            “Transfer $1 Million to my personal Campaign account, and I’ll give you a pardon that takes you off the FBI’s most wanted list”

            Would that be impeachable?

            1. Sounds impeachable, unless (hypothetically) you do it on your last day of office so that you can respond to any impeachment effort by citing your status as a private citizen.

              1. Hypothetically, I wonder what would happen to the Department of Justice official who went around the normal pardon channels to put it on the President’s desk on the last day.

                Hypothetically, that official might be greatly rewarded with a position of power in the next Democratic Administration. Hypothetically.

              2. Impeachment can still proceed after the target leaves office, with the penalty being disqualification to hold future federal office.

                1. There’s a lack of clarity on that point – the Senate’s decision in the Blount and Belknap cases left the matter, to put it mildly, somewhat muddy.

                  Blount was booted out of the Senate for some kind of foreign conspiracy. The House then impeached him, by which time Blount was a private citizen, and the Senate threw out the case.

                  Belknap was Grant’s thieving Secretary of War. He resigned just before getting impeached, and the Senate was Janus-faced in its reaction. By majority vote, they decided to allow the trial to proceed even though Belknap had resigned pre-impeachment, but enough Republicans voted to acquit on jurisdictional grounds that Belknap was acquitted.

                  So where do the precedents point, or can the Senate start from scratch in considering the issue?

                2. Alcee Hastings may disagree with you

  8. Given that presidential impeachment is about the legislative branch kicking in the door of the executive branch, grabbing the guy who embodies it, and throwing him out on the street, what part of “separation of powers,” applies? Seems more like impeachment is an exception to usual government practice—an exception in which separation of powers has little if any role to play.

    1. I would disagree that separation of powers has little if any role to play in this exception. If that were the case all the House has to do is begin an impeachment inquiry, require all paperwork/documents and subpoena all the POTUS advisers to get whatever they want and then….do nothing except have the same effect as if there were no executive privilege.

    2. If that’s what it is then why even bother with the fig leaf of subpoenaed testimony?

      1. I’m not following you. Can you say more?

  9. “What did the President know and when did he know it?” That isn’t even remotely what is at issue. The whole issue is encapsulated in the phone call (which btw all the conspiracy junkies including you thought was incomplete and probably fake). Trump made what he wanted quite plain. The issue is simply whether what he wanted was improper or improper enough to justify impeachment and removal.

    None of the witnesses you are so eager to hear from could do any more than the parade of entitled bureaucrats did: give opinions about a phone call.

    This is just the next phase of the outrage machine because the last phase was a giant flop.

    1. Our elites, including academics like Brooks, are incompetent fools in love with their own brilliance. I won’t be satisfied until they receive a well deserved comeuppance. I hate Trump, but I will vote for him and give money for his cause. I will volunteer for him. I will tear down signs of his opponents. I will vent my spleen on all websites where I can. I hate Obama, Pelosi, and the Dems who gave us this mistake. I hate the Supreme Court Justices (all the way back to Lochner) who allowed this mistake to be a law. All hail the dynamic constitution which means whatever the elite want it to mean.

      1. Yeah, you don’t actually hate Trump then.

        1. You live in a world so filled with partisan spite, you could never harbor ill will towards your own side.

          Given your proud declaration about yard signs, the law seems no obstacle to your hatred.

          You got problems, man.

          1. “You got problems, man.”

            Only if being a bitter malcontent and a culture war casualty destined to hate his country’s progress — and most of his countrymen — for the rest of his life are “problems.”

          2. We all have problems. A major one was that I was happy with my old health insurance and now have to change every year.

            1. Might as well make it into a personal vendetta then. Because that’s a normal way to react.

              1. I am always angry in the morning. And I am also most productive in the morning. I’ve spent my life as a good civil servant putting all my energies into making things better for the people who call my division for help. But many of the people above me do not have good priorities. That is how poor laws like the ACA get enacted.
                Do I have issues? Of course. One of my biggest is that I am too honest for my own good. When I am in a law office taking a deposition and getting seeing taxpayer’s counsel refuse to provide books & records during deficiency litigation, saying that the Government needs to prove the assessment is correct, having to fend off an ethics complaint filed against me for filing a 12(b)(6) motion, and all the while seeing Obama and Clinton photos on the walls of the conference room…makes me wonder what the hell is wrong.

                1. all the while seeing Obama and Clinton photos on the walls of the conference room

                  See, there’s where you’re finding an unhealthy way to vent your spleen. Petty injustices are part of life. Turning them into part of some vast partisan narrative will burn you up.

                  1. I didn’t mind seeing photos of Pres. George “Pro torture” Bush, or “Donald “Perjurer, sexual assaulter, and fraudster” Trump on the walls. But man, when I see photos of Pres. Bill “Sexual abuser and perjurer” Clinton and Barack “Hey, he’s black” Obama . . . that’s what really chaps my hide.

                    You’re upset by pinpricks, but you don’t seem to mind hand grenades. Selective outrage much?

                2. You’re full of it, GMT.

                  You claim to work for some government, yet complain about having to change your health insurance every year and deal with ACA.

                  I call BS. Government employees normally have employer-provided insurance and don’t have to deal with the specifics at all, except occasionally to choose from some menu of secondary benefits like dental, disability, etc.

                  You’re making crap up.

                  1. Reminiscent of the conceit at the beginning of Breaking Bad, that he had no money for cancer treatment.

                    Whoops! He’s a public school teacher and has some gold standard stuff.

                    Well, I guess he has to see the 10th best cancer guy in the country, not some yokel cancer guy, and this 10th best guy for some reason doesn’t take the gold standard insurance.

                    1. Your like 30 years out of date if you think public school teachers have gold standard insurance these days.

          3. I find Trump distasteful myself, whenever he’s on speaking I turn the channel. I don’t know him personally, but he seems like a real asshole. But I love his tweets, or at least 10% of them.

            But dammnn, I can’t wait to get in the voters booth next November, color in that Trump bubble, make sure I cover all the White space, keep my pen inside the lines, that’s the hard part for me, not scribbling too hard.

            1. “But I love his tweets, or at least 10% of them.”

              Reading his tweets is like watching a someone perform brain surgery using a torn beer can and succeeding.

              Not really sure how he does it.

    2. donojack, you may want to check with your compatriots, as well as the President since they’re all claiming differences of fact, not of opinions about Presidential powers.

      Though thinking it’s cool for the President to ask other countries to dig up dirt on his opponents remains amazing to me.

      1. So you thought Hillary and the DNC should not have hired Michael Steele to dig up dirt from the Russians in 2016? Well they didn’t actually dig up any, but they made some up, and said they dug it.

        I on the other hand think if a presidential candidate thinks that another candidate was implicated in foreign corruption then asking for help in rooting it out is not out of bounds. Manufacturing however is not kosher.

        I’m thinking way back to 92 when it was alleged that Bush Sr. flew to Paris to implore the Iranians not to release the hostages before the ’80 election. Are you saying it would have been improper for say the Democratic Senate to ask for foreign help in investigating that during the 1992 election? Which by the way actually happened.

        1. I don’t think that’s what happened.

          And I think pointing to the Dems to justify this shows you know you can’t justify this. But you don’t care. Because the Dems are bad.

        2. So you thought Hillary and the DNC should not have hired Michael Steele to dig up dirt from the Russians in 2016?

          Michael Steele is the former head of the RNC. You mean Christopher Steele. Except you don’t, because Hillary and the DNC did not hire Christopher Steele. They hired Fusion GPS, an American opposition research company. Run by Americans.

          Also, Hillary wasn’t the president, but a private citizen.

          Also, the issue isn’t Trump “asking for foreign help” with an American investigation; the issue is Trump asking for foreigners to announce an investigation of something the U.S. wasn’t investigating. And doing so secretly. Because he knew it was considered wrong. Which is why he abandoned his efforts as soon as they were made public.

      2. Asking a country to resume corruption investigations that is a condition of receiving aid is completely appropriate. If it implicates a dirty US official or former official that’s just how the chips fall.

        1. That’s not what Trump asked for, though.

    3. donojack, far from delivering a flop, what you call the outrage machine could not be throttled higher, or running more efficiently. I get that a lot of Trump supporters paid little or no attention to the hearings themselves. It shows in these comments.

      Trump opponents watched more persistently, the more so among many, because they feel desperate. What they saw was an assortment of witnesses, each well-qualified by virtue of position, access, and first-hand knowledge to make the judgments you deride. The testimony stayed in tight agreement. Weaknesses in particular accounts served as much to bolster credibility as otherwise—these witnesses were not exaggerators, or people who went beyond what they actually knew, as they time and again refused to do.

      In the end, that meant that the cumulative weight of the testimony had become imposing. Essentially all weaknesses in one account got filled in by first-hand observations from another. No one considering the testimony as a whole could possibly conclude that so many accounts came to such a concerted impression except by the impulse of an outside mover—which can only have been Trump’s initiative. No other explanation is reasonably possible.

      Folks who did not watch the entire process will probably remain susceptible to attempts to pick apart witness accounts one-by-one, because no single account covered everything. That, more than anything else, probably explains why Trump supporters have remained both stubborn and self-deceptive. Doesn’t matter. With the conclusion of last week’s testimony, supporting Trump on the facts has become a fool’s errand.

      1. So at this point, polling indicates that either you support Trump, or you want him removed from office. The polarization is perfect.

        And that’s why it’s not moving.

        Comment threads here run through three different threads in support of Trump:
        1) There’s a bunch of hidden facts/lying under oath that’s clear to all nonpartisans like me, and the Dems are in on this conspiracy.
        2) The law says Trump can do this, and this is very normal behavior based on previous Dem conspiracies to persecute conservatives.
        3) Who cares, Dems are so evil/partisan that our republic is already over so screw you.

        And, of course 4) most conspirators’ awkward silence.

        1. So you’re imputing “awkward silence” to contributors not posting outside their area of expertise? Interesting. Maybe Mantra can figure out a feminism angle on this, or Somin on how it relates to open borders, but really, the only one whose silence is unexpected is Bernstein.

          If I had to guess why only Posts alternative reality posts are usually the only ones on this topic, your first point, that the minds are already made up, is why.

          From my perspective, I follow the news rather closely and listen to both sides, but there is an ridiculous amount of minutia that the left is heaping on that are immaterial to the issue at hand. From the opposite side, it’s like on my drive home when I hear Hannity go on and on about which person altered what FISA warrant application leading to person X, who was the cousin’s sister’s brother’s uncle’s former room mate of some guy named Misfud points to Laura Palmer’s true killer.

          1. I’m saying it’s one of the 4 reactions we’re seeing on this website.

            As you yourself have said, impeachment is political. Conspirators have political opinions. They talk about petitions and letters they sign all the time. So yeah, this is a conspicuous silence.

            You always say you follow the news, and then your links to proof are to fringe areas of the web.

            1. Way to point with a broad brush there, bucko. I read your yammering, don’t I? Moreover, I link to NYT often enough, like just recently, when we were talking about demographic replacement in VA. I only link to a blogger that you call “fringe” because they are the only ones aggregating data, and that only if relevant. Yet it is you who links to Vox as if it is an independent authority with a track record of truthtelling. And you get miffed if someone jokes with you about it. Pot…meet kettle.

              Conspirators have political opinions, yet (most) are not posting about impeachment because it is outside their area of expertise because the entire debate is now revolving around hyper technical details and timelines who overheard whom say what and what they inferred from it….which is NOT where they could bring the expertise to bear on the issue. I not that Blackman has weighed in where his expertise overlap.

              Again, the only absence of note, is Bernstein.

        2. Which is fine, but if you listen to radio defenders, it’s clear they’ve totally given up on anything but warlike win at all costs.

          Which supports what you said…except that’s not the level they are fighting at.

          If you have watched the relentless attacks on Trump the past 3 years, you can’t not think this is just the latest attack for political reasons, regardless of accuracy. Given that long chain, they probably think complete warlike defense is warranted, as complete warlike attacks have been ongoing continuously since before the election.

          Not saying it is right, just the reality.

          Who can forget, long before the election, the famous Onion article, “Surely Trump is done for now,” says increasingly nervous man for the 7th time.

          1. The usual ‘we have to be bad – look at the other guys!’

      2. Stephen,
        I predict that events are going to disappoint you yet again. I will say that your high moral tone has been reserved exclusively for this nothing burger and not for the three year travesty that we have been witnessing, that actually is a threat to the republic.

        1. donojack, events are what they are. I do expect to be disappointed (but very slightly, because of low expectations) by Senate Republicans. I will undoubtedly be considerably more disappointed, as I have been right along, by Democrats, and their bungling management of this crisis.

          As for the previous 3 years? Allow me a stab at predicting history’s judgment of what you call a “nothing burger.” History will take it as trivially obvious that Trump was stark mad, thus making his role and behavior all but uninteresting—except insofar as particular sanity crises challenged the responses of Trump’s associates and opponents. It will be their behavior upon which history will focus.

          History will be especially interested in the roles of leading members of both political parties. History will struggle to explain why party leaders behaved as if they could not see the actual insanity which many memoirs from Trump associates and aides will record as widely recognized.

          The long, bootless struggle you mention will thus come to be treated as a pointer toward recognition of constitutional deficiencies. The historical problem will be analyzed with an eye to discovering why constitutionally prescribed procedures, deemed adequate on their face, failed so completely when put to a political test—and especially a test of political leadership by both parties.

    4. Thank you. I don’t know why people are making such a simple situation so complicated by introducing so many irrelevant facts

      1. No problem, Ben. What you assert without evidence, others can dismiss without explanation.

  10. Dealing with the Affordable Care Act today, so I am in a foul mood.

    Professor Brooks, you seem to argue that the Constitution means whatever you, or people like you, want it to mean at this precise moment. It is no longer a law, it is arbitrary preferences of our elite.

    1. Poor loser. Spouting nonsense. 🙂

      1. Keep saying that. Some day they will come for you and your family.

        1. I apologize bringing up your family. But we all have to live under the laws our representatives enact. It is getting crazy when bureaucrats in Washington, D.C. make regulations regarding use of stop signs or signal lights in neighborhoods over 400 miles away. Replace a signal light with a stop sign, make a mess of traffic for the residents, and increase the number of collisions in that intersection…this is not my idea of good representation.

          1. If you think being civil with Hiln means that you’re going to get equal civility in return, you’re quite wrong. Frankly, he deserves much mocking and scorn, and you’re still right that they would come for him and his family first. He doesn’t see it that way, of course, but that doesn’t change things any.

            1. There are a few people I do not respond to. If I get in a spitting match I will lose; I stopped practicing making mean remarks back in the early 90s. I preferred the old days with local forums where you could actually meet the people. Once you’ve met someone face to face, it is a lot easier to “hear” their voice and know when not to take things too seriously.

            2. Not threatening a person isn’t about whether that person deserves civility, m_k.

              Good on ya, GMT.

              1. He wasn’t threatening, nor even implying a threat, just pointing out the truth that in socialist/leftist/commie revolutions, the true believers are often killed themselves.

                To much niceness leads to the gas chambers.

                1. Doing a lot of work to make Some day they will come for you and your family nonthreatening.

    2. “Elite” — what society’s losers call their betters.

  11. But an absolute immunity from any compulsion to testify before Congress? Congress cannot compel the Secretary of Defense to testify about combat operations in Syria, or the development of new weapons systems? Congress cannot compel the National Security Advisor, or the Secretary of State, to testify in a proceeding examining a possible bribery scheme conducted at the behest of the President? Really?

    The distinction shouldn’t be who they are (i.e. Sec. State, NSA, WH chief of staff, et. al.) but about what matters they are being called to testify. If the testimony demanded involves their role as adviser or counsel to the President then it should be off limits, otherwise not.

    1. Good news! That’s what this says – witnesses may still declare privilege to certain questions (presumably on direction from the WH), but they must show up when asked.

      1. Post wants them up there to talk about what the President knew and when he knew it. Not exactly about policy, programs or initiatives. IOW advisory discussions that should be off limits.

        1. The case at bar doesn’t say that.

          I’d guess a lot of the questions folks have are about carrying out Presidential directives, not advising the President.

          1. You mean the directive to release the aid without conditions? Biggest nothing burger since the Russian collusion hoax.

  12. Donald Trump is immoral, unqualified, and undisciplined. There cannot be any serious doubt that he has — over and over again — flouted presidential norms that have been evolving for more than two centuries. It has become impossible to count the number of lies he has told and the number of times he has obstructed justice. His ongoing attempts to silence certain witnesses, namely, those who have direct evidence of his wrongdoing, are reason enough for his impeachment and removal from office. In an ideal world subpoenas should not be necessary, and the witnesses who have first-hand knowledge of the his behavior would voluntarily disclose what they know and accept the consequences of doing so. Sadly, though, honor and integrity seem to be in short supply among Trump’s higher-level appointees and advisers.

  13. It is ironic—to put it as mildly, and as respectfully, as I can—for the President’s defenders to raise this particular defense, given that it is the President himself, of course, who is preventing anyone who might be in possession of such evidence—e.g. Messrs. Bolton, Mulvaney, Pompeo, Giuliani, et. al.—from supplying such evidence, if it indeed exists.

    Assume for the sake of argument that such evidence does not exist. That the individuals in question will all testify that there was no connection between the delay in the aid and the request for an investigation into the company that employed Biden’s son.

    Do you honestly believe that at this point the Democrats in the House would accept that?

    Or would they be accused of perjury?

    Forget Trumps interests. It is against the personal interests of these individuals to testify in this matter.

    It’s a no win scenario. The real truth doesn’t matter, they are either incriminating themselves as well as Trump, or they will stand accused of perjury.

    1. The idea that witnesses should create new doctrines to avoid testifying because Dems are going to manufacture crimes seems like you might as well declare the republic over.

      Luckily, perjury is hard to prove.

      1. Post himself admits, it’s not a new doctrine, it goes back to at least 1974.

        1. Blanket immunity sure is new. Citing some old precedent and using it in a new way is not an old doctrine.

          1. Maybe you need to re-read the OP, including the case excerpt, then peruse the comments about Holder’s use of it with Fast and Furious.

      2. The republic has been in the process of dying /on life support for at least the last 50 years.

        1. Maybe so, maybe not. You have nothing to gain in acting like it’s dead.

    2. Perjury must be proven. Shouting an accusation doesn’t count, despite Trump’s God Complex

    3. Assume for the sake of argument that such evidence does not exist. That the individuals in question will all testify that there was no connection between the delay in the aid and the request for an investigation into the company that employed Biden’s son.

      This is quite an assumption.

      If they were all going to testify this way, and produce documents to support that testimony, then Trump would be driving them to the capitol himself.

      The real truth doesn’t matter, they are either incriminating themselves as well as Trump,

      This is bizarre. If the truth incriminates them, then why does it not matter? And they can always take the Fifth.

    4. I love the theory that if a defense lawyer does not put his client on the stand, then pointing out that the prosecutor did not prove its case is somehow null and void.

  14. A little context goes a long way. Schiff’s subpoena was equally absolute in terms of disallowing any form of privilege (whether executive or attorney-client). While you might agree with this view, it is a departure from past practice. Given this, it’s really not that surprising that the administration insisted on the opposite extreme.

    1. So have you seen a subpoena before?

      1. I have seen plenty.
        This subpoena can be reviewed here:
        https://judiciary.house.gov/sites/democrats.judiciary.house.gov/files/documents/McGahn%20Subpoena%204.22.19.pdf

        It is worth a review, quite enlightening.

        Like most subpoenas, page 1 is a form that says, produce the documents on the attached schedule, and then show up on a date certain to testify. Pretty routine.

        The schedule, however, is most interesting. It calls for documents concerning virtually every possibly controversial action by the Trump administration from Day 1. The notion that this is in good faith is a joke.

        One the documents, my first reaction is, does the guy actually have anything in his individual capacity? Or are these White House documents? If, as I suspect, the latter, he does not have to produce anything in response to this subpoena, as they are not his documents.

        Beyond that, many of the categories plainly include documents that are within Executive Privilege. It’s like issuing a subpoena in a civil litigation for the other side’s attorney’s whole litigation file. No judge would ever allow that.

        So if I were the Administration, my next step would be to interpose objections to most of these categories on the basis of privilege (assuming there actually is anything there).

        1. My point is that subpoenas don’t generally contemplate the invocation of privilege. Justsometraveldude thought that made them illegitimate or something.

          1. Actually you were being a condescending troll.

            1. A troll is insincere.

              I sincerely think this is a silly objection, based on how subpoenas work and are written: Schiff’s subpoena was equally absolute in terms of disallowing any form of privilege.

              1. So you are sincerely being condescending? Way to win points buddy.

                We’re actually in agreement – that’s not how subpoenas work and are written … usually. But please see my link below, and it will all be crystal clear to you.

                The language in the letter says that if there isn’t any compliance, the Dems will draw and adverse inference. This is NOT normal, since usually the legislative and executive branches go to court to litigate this. Even in civil litigation, in case you’re unaware, this is remedy is reserved for after a side has failed to meet its discovery obligations.

                The letter also has loaded partisan language: it says they’re investigating “the extent to which” Trump abused power. If Schiff wanted to garner cooperation, he wouldn’t presuppose guilt. But he didn’t – he wanted to make a political statement.

                You’re free to disagree with all of that. But you’re not free to be a condescending jackass, sincere or otherwise.

      2. Apologies, I should have been more clear. I didn’t mean the McGahn Subpoena, but the one Congress sent to the White House. Read the cover letter here: https://oversight.house.gov/sites/democrats.oversight.house.gov/files/documents/2019-10-04.EEC%20Engel%20Schiff%20to%20Mulvaney-WH%20re%20Subpoena.pdf

        Whether you’re with Trump or not (I’m not), this isn’t your typical form – it’s a political document making a political argument.

        1. justometraveldude,

          you said: “A little context goes a long way. Schiff’s subpoena was equally absolute in terms of disallowing any form of privilege (whether executive or attorney-client). While you might agree with this view, it is a departure from past practice. Given this, it’s really not that surprising that the administration insisted on the opposite extreme.”

          Neither subpoena “disallow[s]” any privilege. As Sarcastro pointed out bluntly, people issuing subpoenas don’t usually do the work of identifying what privileges the person receiving the subpoena could plausibly raise. They ask for everything and it is up to the recipient to raise an issue of privilege. So, despite your later bluster, your initial point was simply misguided.

          The cover letter is arguing a particular side of the case. Cover letters from attorneys to other attorneys not infrequently argue their case, particular as to why the subpoena should be obeyed. I am not sure what objection you have to political matter being included in a document addressing a political process. And, again, it was known this was going to be public and part of the point of the cover letter is to let the public and Trump know the House committee’s position on what they see as obstruction. Trump has his platform, this seems a legit way for them to try to get their side out too.

          The subpoena is the legal document and you seem to have backtracked from the idea that there was anything improper in the subpoena itself.

          Also, here is my own nitpick since you seem to be nitpicking the letter. You say it says “the Dems will draw an adverse inference.” The letter says failure to comply “may be used as an adverse inference”, not “will.” Presumably, whether an adverse inference is drawn depends on context, including, for example, whether a valid objection based on a recognized privilege is made. You say you aren’t with Trump, but you seem to be buying into his specious procedural arguments.

  15. “I would enjoy it as an intellectual puzzle more if the fate of the Republic did not hang on how it gets resolved.”

    Now these are the kind of measured and thoughtful statements I frequent the V.C. to enjoy. If you had any remaining doubt about David Post’s mental well-being, surely you may dispel it now.

    1. I thought the same thing.

      1. If you think this is drama mode, I hope you didn’t see the Conspiracy at the height of the ACA fight. Health Control, the death of our capitalist system…broccoli.

        1. I lurked back then. Then this cite moved to the WaPo where I would rather get a 3rd degree burn then pay a penny to comment. At most, Post might say “future of the rule of law in the Republic” and he’d at least be in the same wheelhouse.

          That said, Obamacare didn’t spell the end for our capitalist system, because the health case system wasn’t free market based prior to Obamacare and it’s even worse now. However, it was a big step towards socialism if nothing else.

          1. How many people here are using the marketplace for their insurance? It is a total mess. Much of the information at the site is incorrect. You get locked into an insurance plan and find out that, contrary to what the web site info tells you, they don’t accept that insurance, so you are stuck for a year with that provider and paying out of pocket.

            Oh, call the Doctor’s office? That can take a while; they don’t have limitless staff. We are in a situation where we are paying a lot more and getting much worse service.

            1. “We are in a situation where we are paying a lot more and getting much worse service.”

              So the usual government success story then.

              It was never about you getting insurance. People who actually pay their own way are persona non grata in Democrat circles. You don’t matter to them and you never will.

              It was always about claiming credit for you getting insurance. Also, it was about finding a constituency that absolutely relies on a specific subsidy or guarantee. Once that sort of thing is established, it becomes politically impossible to remove it.

              1. No, Ben, it was not a conspiracy to increase government dependence. It was about getting more people covered by insurance. Whether that’s the right goal or not, or whether it’s been well executed, we can discuss. But don’t create dumb conspiracies.

                1. False. There were lots of inexpensive (or at least less expensive) policies available before Obamacare. Obama Admin bureaucrats said “That insurance is not good enough” and they outlawed those policies, forcing people who bought their own insurance to buy much, much more expensive policies that covered things like male childbirth.

                  (Obviously male childbirth isn’t a thing that needs to be insured against, but you have to pay for it. Because otherwise women would have to pay more for insurance.)

                  Outlawing policies got Obama the “Lie of the year award” from his good friends in the press. Apparently if you like your plan, you can’t keep it unless bureaucrats (who probably think you’re “deplorable”) also like it. The lie of the year award came far too late for Americans, as is usually the case when the news media finally reports on what Democrats are actually doing.

                  1. And somehow millions more people are covered now. Almost as though you’re not satisfied with policy differences and need to juice your outrage with turning your opposition into plotting villains.

                    You have arguments about execution (ones that IMO doesn’t get how pooling works). Nothing that is even evidence of bad intent on Dems part.

                    As for outlawing plans, you act like that was done by itself, as a bonus activity. If you don’t see how getting rid of low-value plans is a necessary part of any plan to extend insurance, you haven’t thought about the issue much.

                    1. “And somehow millions more people are covered now.”

                      And that your party mandated that people buy policies they didn’t want is somehow a plus in your mind, not a minus.

                      “If you don’t see how getting rid of low-value plans is a necessary part of any plan to extend insurance, you haven’t thought about the issue much.”

                      As is the fact that your party took away from people policies they DID want.

                      Sarcastro, nobody would mistake you for a libertarian even on a good day, but you’re really going all-out today to prove to everybody that you don’t value human liberty.

                    2. Brett, this isn’t a policy discussion. This is about whether the ACA’s real purpose is about getting people dependent on the government,.

                      Whether you believe it’s a good idea or well executed or not has nothing to do with whether you’re strapping on the tin foil and deciding this isn’t about being wrong, it’s about being secretly evil.

                    3. You’re supporting Trump. You’re a pretty crap libertarian as well.

                      We’ve discussed liberty as well. What kind of freedom is there if your needs dictate where all your time and money go?
                      Freedoms that formally apply to everyone but actually only apply to people of means isn’t really liberty at all.

                    4. Also: drama mode point proven. Thanks guys!

                    5. More are insured because government is paying the bill.

                    6. Ben: “More are insured because government is paying the bill.”

                      So, obviously and finally, you concede Sarcastro’s only point in this thread:

                      Democrats had a goal of increasing the number of people with health insurance and they succeeded in that goal.

                      Great! I really wish we could get back to serious policy discussions, like whether the ACA is a good idea, whether there are better ways to achieve its goals, or even whether the goals are worthy, instead of just assuming one side is intentionally trying to destroy the country. “The other side is Satan” has always been tiresome, but gets more so by the day.

                    7. And somehow millions more people are covered now.

                      No they aren’t.

                      They have insurance.

                      But it covers nothing.

                      Oh, in theory it covers everything, but in practice there’s a huge deductible–or you need pre-approval from 9 or ten bureaucrats.

                      Everyone has insurance, and that insurance covers everything–it says so in the plan. But nobody has healthcare.
                      Just healthcare insurance.

  16. One of the points of executive privilege (but not absolute immunity) is that it prevents Congress from effectively ‘owning’ the POTUS. There is a separation of powers for a reason. If POTUS and every official knows that at any time Congress can obtain any and all records from the Executive branch, and the requirement for the House impeachment process is pretty much whatever they want; Whom do you think will be in control and in power?

    The assertion of executive privilege is an important one, that helps in preventing Congress from being in control of POTUS.

    If the subpoena requires that there will be no ‘executive privilege’ claims then the subpoena should rightly be rejected. However, I’d say that even if required to appear with stipulations in the subpoena that no executive privilege can be claimed it should still be claimed and followed.

    Let’s see how a court hearing about arresting administration officials goes when they claim executive privilege over a subpoena that says they can’t. They may compel them to show. They however cannot compel them to speak, or to tell them everything they know.

    Finally, holding them in contempt of Congress won’t do much either. Just refer back to how Eric Holder fared when they did it to him.

  17. “… the politically-motivated scheme to get the Ukrainians to subject the Bidens to a criminal investigation, not for the purpose of advancing US national security interests[, but] for the purpose of helping Trump get re-elected in 2020.”

    This comment really has nothing to do with the matter at hand, the doctrine of testimonial immunity, but since it’s here, and it sparked my interest, I cam compelled to comment.

    When I read or hear something that to sounds like fingernails on the blackboard, I analyze it by parsing it for what is known versus what is speculation. I also not the word choice that might seem to imply something negative or positive about the subject. ‘Investigate the Bidens,’ for example, is more neutral than “subject the Bidens to a criminal investigation,” the latter implying they are being punished by the investigation alone. But as far as what is known and what is speculation, let’s look:

    “Politically motivated scheme.” This is a loaded phrase. Does David Post know this to be the case, or is he speculating – hoping – that it’s the case?

    “not for the purpose of advancing US national security interests” Again, David Post is reading the President’s mind, or he has incontrovertible evidence that he isn’t sharing.

    “for the purpose of helping Trump get re-elected in 2020.” As above, but there’s this: does anyone really believe that Trump not only considers that Biden will win the Democratic nomination, but also that he won’t trounce him if he does? Holy Cow.

    Note that, regarding Trump asking Zelensky to investigate the Bidens, there is a treaty ratified by both the U.S. and the Czech Republic, the United Nations Convention against Corruption. This treaty provides as follows:

    “Under Chapter IV of UNCAC, States Parties are obliged to assist one another in every aspect of the fight against corruption, including prevention, investigation, and the prosecution of offenders. Cooperation takes the form of extradition, mutual legal assistance, transfer of sentences persons and criminal proceedings, and law enforcement cooperation. Cooperation in civil and administrative matters is also encouraged. Based on Chapter IV, UNCAC itself can be used as a basis for extradition, mutual legal assistance and law enforcement with respect to corruption-related offences. ”

    source: wikipedia

    So, how could Trump asking Zelensky to investigate the Bidens be anything other than implementation of this treaty? So what if it was politically motivated?

    (I personally think that the two people Trump should be worried about are Hillary and Bloomberg. Especially Bloomberg. He will affect a genuinely moderate posture, eschew the totalitarian style of his mayoral tenure, and walk away with the nomination, and capture the Dem vote and a large portion of the swing vote.)

    1. Not to ignore so much the content of your comment previous to it, but the ending leads me to ask: you think Bloomberg has a shot winning the nomination, or that Hillary will run again?

      1. Yes to both. I feel there’s a high probability that it could come down to a contest between Mike and Hill for the nomination. Which means, I think there’s a high probability she will enter the race.

        1. Conservative partisans trying to figure the deal with Democrats is always a hoot.

    2. Bloomberg won’t break 3% in a Dem primary IMHO.

      If we are doing fantasy politics, the person who ought to run is Michelle Obama who will capture the Dem vote and a large portion of the swing vote.

      1. I could sort of see that: Democrats haven’t gotten the desire for a President lacking a Y chromosome out of their systems yet, which would give her a leg up. But that’s not really feasible unless Hillary has given up on it, because Hillary is scary enough Michelle wouldn’t want to cross her. Plus the prospect of her hubby trying to play jr President from the background, (You know he would.) has got to take some of the appeal away

        Finally, on some level she’s likely aware that being first lady provided her with a kind of armor against direct attacks that she’d lose running for the office herself. Does she want to throw herself in the line of fire?

        I think it’s probably Biden unless he strokes out before the convention. He’s the safe choice, and the Democratic party establishment don’t want to blow it.

        1. I don’t see Michelle as being the least bit afraid of Hillary. Remember the 08 primary season, when Michelle accused the Clintons of being racists? Michelle’s greatest weakness is being exceptionally thin skinned. She reacted poorly to criticisms of Barack. In an election as a candidate herself she will be attacked mercilessly. She will also be painted as a second hand standin for her husband.

          Biden would be a disaster as the Dem candidate. Can you even imagine him in a debate with Trump? Trump would have him spitting nonsense and attacking the resulting gaffes. Joe would look like a fool.

          Just my opinions, of course.

    3. Publius:

      “‘Investigate the Bidens,’ for example, is more neutral than “subject the Bidens to a criminal investigation,” the latter implying they are being punished by the investigation alone. ”

      That sounds like fingernails on a blackboard to me, because, of course, what Trump was pushing for was really neither of these things.

      Trump merely wanted the announcement of an investigation (you know, of the sort Comey gave that helped him win in 2016). I believe the testimony has been that he didn’t really care whether there was an actual investigation. The fact that the DOJ did not then and does not now have an ongoing investigation provides further support for the conclusion that Trump didn’t actually care about an investigation. (Besides, no predicate for investigation of violation of US law from what I can see, at least vis-a-vis the Bidens.)

      Bonus: The lack of a US investigation undermines your treaty argument.

      Trump wasn’t asking for assistance with US law enforcement, he wanted an announcement to smear an opponent. He withheld US aid and a White House visit in an effort to get it. 70% of Americans, it appears, understand that that was wrong.

      We really should only be discussing whether it merits impeachment and then removal. That some people still argue it wasn’t wrong…..sheesh.

  18. Harriet Miers is a better example than Eric Holder. Miers was a WH counsel under Bush who was subpoenaed by Congressional Democrats. Here is an article from the WaPo about what happened with Miers:

    “Similarly, in 2007, Congress held then-former White House counsel Harriet Miers in contempt after President George W. Bush claimed executive privilege to prevent her testimony in an investigation of the mass firings of U.S. attorneys. The Justice Department refused to prosecute her, forcing Congress into a civil suit in the U.S. District Court for the District of Columbia. The case took two years, with Congress prevailing in the lower court. But the appeals court dragged its heels, and while the case was awaiting a decision, the 110th Congress went out of business on Jan. 3, 2009. Contempt citations expire when a Congress expires.”

    So the end result was Miers did not testify and there were no repercussions.

  19. After the Ukraine strategy fails, what do you guys think will be the next dramatic story that obsessive anti-Trumpers will latch on to? Some guilt-by-association from a line on a tax form?

    1. Elect-and-impeach
      Hamilton electors
      Russian Collusion
      Obstruction
      Emoluments
      Dodgy tax behavior from his years as a Democrat
      etc.
      etc.

      1. I will guess “He stole the 2020 election by falsifying economic data.”

        Or he stole the 2020 election by frightening Democrat voters away from the polls with his mean anti-news-media talk.

        Or he conspired with Bolsonero to burn forests, causing smoke, which led to bad weather on Election Day because he knew a Dems don’t vote in bad weather.

    2. At the rate at which the Democrats’ threshold for declaring a scandal is falling, it will probably be something so stupid and petty we can’t even imagine it now.

      Wait, I’ve got it: He accepted huge numbers of bribes in the form of small campaign donations! And those purchases of campaign merchandise? Obviously emoluments.

    3. Trump’s Ukrainian strategy did fail. I will grant you that. I assume we will get to look forward to more of the same, much to the detriment of the United States.

  20. I will guess “He stole the 2020 election by falsifying economic data.”

    You’re projecting; it was Trump who claimed that all unemployment data under Obama was false.

    1. Notice how when Trump says something like that, it doesn’t matter and nothing comes of it. No big deal.

      When Dems make up a story, they go all out holding stage managed hearings, threatening people, issuing subpoenas, hauling people into court, corrupting the FBI, misleading a FISA court, spying on a Presidential campaign, leaking secret documents, appointing a prosecutor to waste 100s of man years of people’s time.

      1. Perhaps you forgot his election commission that pursued the “theory” that there were millions of fraudulent votes.

        And that Democrats didn’t make up a story.

        1. I sort of recall an election commission that didn’t get around to pursuing anything, because too many states wouldn’t cooperate in supplying it with data. And so it just folded having done next to nothing.

          That the one you’re reminding us of?

          1. I remember a court case about how the GOP voter fraud guru was lying.

            1. Seriously, Brett? Are you living in a world where there were millions of fraudulent votes that had the potential to swing the election (i.e., Trump really won the popular vote) and Trump and his election commission just gave up because “too many states” (like North Dakota, Tennessee, and Wyoming, deep blue ones!) failed to provide the information? And the Republican-controlled (at the time) House and Senate didn’t jump in with a law or hearings (Benghazi!) or something? And that is some sort of defense of Trump?

              Maybe, instead, Trump made things up in an effort to improve his image, he had a commission formed to provide some legitimacy to his made up claim, and, then, a number of red states wouldn’t go along with the charade.

      2. Right, okay, Russian interference in the election was “made up” and the entire U.S. intelligence community is in on it. A conspiracy so vast!

        1. The Russians interfered, if you call social media posts interference. It was small, and deemed inconsequential by the same authority you cite.

          The U.S. does the same thing, quite overtly in Obama’s case.

          1. Russians hacked the DNC and strategically released information in a way that would damage Hillary. That Publius and Ben ignore the much bigger crime is telling.

            1. Russians hacked the DNC
              There is no direct evidence of any such thing. DNC refused FBI access to it’s computers so FBI had to fall back on accepting conclusions of a third party. Assange has repeatedly said that he did not get info from Russians and that it was leaked from someone inside DNC.

              1. DNC refused FBI access to it’s computers so FBI had to fall back on accepting conclusions of a third party.

                False. And technologically ignorant.

                1. This, I wrote more, but my long comment is “awaiting moderation.” It is also false that there is no direct evidence. At best, we don’t know if that’s the case, but the redacted Mueller report heavily implies there is and the unreacted version almost certainly confirms direct evidence.

        2. Russian interference was minor and inconsequential. Dems exaggerated it a millionfold. There’s no qualitative difference between that and simply making it up. Same destructive dishonesty.

          One difference is you’re still doing it. If it was shown to be 100% made up instead of 98% made up, there would be fewer people like you willing to repeat it.

          1. The hacks of the DNC, etc., were not “minor and inconsequential.” The margin of victory in the key states was close enough you cannot say it wasn’t determinative. Plus, it was both criminal and an act of cyber warfare. Not minor, by any stretch. Ben, yours is the destructive dishonesty. By excusing Trump’s baseless support of Russia’s conspiracy theory and disinformation campaign, you are part of the problem in undermining American’s belief in U.S. institutions and the belief in fact and truth itself.

            1. edit: “…Americans’ faith in…..”

            2. You’re talking about Americans finding out the activities of the DNC instead of letting them continue to act in secret.

              1. Ben,

                No. I am talking about internal workings of the DNC being selectively leaked for maximum damage. I am sure the RNC will just release all of their internal memos and emails too, in fairness and because they don’t have any that make them look bad? Or better, let some anti-Trump operative leak only the RNC email and documents that the anti-Trump operative wants to leak.

                Be serious. All organizations “act in secret”, from Best Buy to the RNC to your local bridge club. But phrasing it that way makes it sound sinister, huh?

                One wonders if Republicans act the way they do because Russia hacked them too, but have not (yet) released those documents. It would explain a lot. On the other hand, maybe voter ignorance and politicians’ general moral cowardice is sufficient explanation. Probably one day we will know which is true.

  21. I am glad that a court has ruled definitively that compliance with a Congressional subpoena is not optional. Let´s see now whether that makes a difference regarding Mulvaney, Bolton, Pompeo, etc.

  22. Separation of powers = good
    Checks and balances = bad

  23. And Trump’s common sense health care rule for immigrants was just blocked by a “Jewish” Obama judge. There is no rule of law in this country anymore.

      1. Because liberal “Jews” are not real Jews. People who are actually committed to the laws of Judaism are not liberals.

        1. As though you have any right to gatekeep a faith you’ve rejected.

        2. Being bigoted and backward is a requirement of Judaism?

          That seems unpersuasive.

          But popular at a clinger blog.

  24. So let’s play this out:
    1. The House holds Presidential advisors in contempt for not showing up.
    2. The DOJ refuses to prosecute.
    3. The House files a civil complaint.
    4.
    5. As soon as the House wins in court, Trump uses his absolute pardon power to pardon them of their contempt charges, as it’s a federal matter and thus subject to a Presidential pardon.

    Repeat as often as necessary. There’s no way in which the House wins this process against a determined President unless they can get 2/3 of the Senators to convict in an Impeachment trial.

    1. Number four was surrounded by characters which the form submission process in it’s infinite wisdom declined to keep. It read something along the lines of:
      4. Hand-wave to insert here how the House wins in court fast enough before the Congressional session ends.

  25. What do you imagine would happen if the Attorney General convened a grand jury to investigate leaks coming out the White House. And this grand jury, for example, started subpoenaing Schiff’s staffers? Issued subpoenas for their phone records?

    I strongly suspect the President’s political opponents would instantly develop a healthy new respect for the separation of powers.

    1. What if there was a different situation, involving different acts different players and a different power dynamic? Might liberals see it differently?

  26. This whole issue arises from the misguided notion that Congress has some sort of “oversight” power over the executive branch. That is patently false. It is true that it retains some legitimate oversight over administrative agencies which are created by statute, but the core constitutional functions of the President are beyond its authority.

    The legislative, executive, and judicial branches are co-ordinate and independent of each other. That is what “separation of powers” means. Congress can no more compel cabinet officers or other senior administration officials to testify than the White House can compel congressional staffers to testify. This works both ways.

    The claim of “absolute” immunity might be too strong; it is possible that there could be exceptions, but they would be extremely narrow and rare.

    1. You are sort of right, Laird. In the normal course of business, Congress has about the scope of administrative supervision you suggest, and Congress is strongly constrained by separation of powers.

      Impeachments are not normal business. Also, impeachment is not really a government power. It is a sovereign power, temporarily on loan to the House and Senate respectively. The impeachment power is the means by which the sovereign exercises its ongoing control over the executive. And separation of powers has nothing at all to do with what means the sovereign may choose.

      Even the Constitution itself does not constrain the sovereign. That is why the sole constraint on impeachment is politics—which refers all disputes back to the People, acting in their joint capacity, as the nation’s sovereign.

    2. Laird is not right.

      “Congress can no more compel cabinet officers or other senior administration officials to testify than the White House can compel congressional staffers to testify. This works both ways.”

      So all those Benghazi subpoenas by Congress to administration officials were invalid? And I am pretty sure congressional staffers have been compelled to testify by the executive branch and judicial branch countless times in the nation’s history. It does go both ways. It just requires that the branch doing to the compelling is acting in a way it is authorized to act and for a proper purpose. An impeachment investigation is, pretty much by Constitutional text, quintessentially a proper purpose of Congress.

      “Beyond its authority” is not the same thing as administration officials not being subject to subpoenas to investigate for both legislation and, even more so, impeachment purposes. Literally no one is arguing that Congress can exercise the President’s “core constitutional functions.”

    3. It is true that it retains some legitimate oversight over administrative agencies which are created by statute,

      All positions in the executive branch other than president and vice president are created by statute.

      Congress can no more compel cabinet officers or other senior administration officials to testify than the White House can compel congressional staffers to testify. This works both ways.

      Well, no, it doesn’t. Setting aside the speech & debate clause which protects the legislature, the WH can’t compel congressional staffers to testify because it can’t compel anyone to testify. Not because the legislature is independent, but because that’s not an executive power.

  27. It seems to be assumed that if Impeachment goes to the Senate for trial, the trial will include the taking of testimony. That is far from assured. The rules are set by the Majority, in this case, McConnell, and there may be no testimony presented at all if that is his wish.

    Also, assuming the scenario that there is a trial and witnesses called, and even assuming that the CJ agrees that Bolton Mulvaney, et al, are required to testify, would there be an opportunity to depose them before they testify publicly. Attorneys for the House would want that. What lawyer wants to question a witness for the first time without having their prior testimony on record.

    1. Is it entirely clear that the political majority will stand as the impeachment majority? Might 4 defectors to the Democratic side put them in the rule-making role?

    2. Wouldn’t it be hugely entertaining if McConnel were to claim that since the Dems were so adamant that the House procedures were fair and just that the Senate would be using them for the trial?

      1. Yes, hugely entertaining if the Republican Senator Majority Leader said it makes sense to use the same procedures for trial as the House used for an investigation. Totally legit!

        Probably not good for the country or for McConnell or Republicans, though.

        1. And what would be the basis for a Dem objection? Notice I don’t say it would be right, just entertaining. I seriously believe most of the country would love to see the Dems have to operate under their own rules and procedures.

          1. How would a trial be conducted the same way an investigation is conducted? They are two different things. Plus, the same rules would mean what, Trump can’t have personal counsel participate in the first stage (though the House has invited his participation now the first stage of the House process is kind of over)?

            If you want them hoisted on their own petard, it just won’t work as you imagined. Closed hearings in the Senate? Democrats get to ask questions the same as Republicans, but it is in five minute rounds, etc. I guess, what are the rules you think would be bad for Democrats that would be entertaining to see in the Senate?

  28. Dems would be restricted on what questions they could ask, witnesses ordered not to answer questions, frequent interruptions by Rs. I’d be willing to start with that. As stated, not right. But why should the Senate Rs show the Dems any more respect or consideration than the House Dems showed the Rs?

    Yeah, I know all the usual arguments like Take the High Road, Turn the Other Cheek, Be The Better Person, etc. My personal experience is that making other people understand that I practice vengeance on a 10 to 1 ratio tends to make my life more peaceful. It’s surprising how polite even the rudest SOB can be.

    1. Dems would be restricted on what questions they could ask, witnesses ordered not to answer questions, frequent interruptions by Rs.

      You know that every single trial in the United States of America has restrictions on what questions can be asked and answered, right?

      1. You know that every single trial in the United States of America has restrictions on what questions can be asked and answered, right?

        Usually not by someone with a personal and political stake in the outcome. You know about recusal, right?

        1. Goju,

          Your comment makes little sense. Pretty much every Representative and every Senator has a political stake in the outcome. I am not sure any have a personal stake (except maybe Nunes if the Trump-Guliani henchman’s tip is accurate).

          And if your wish is that Republicans will be just as political in the Senate as Democrats were in the House, your wish will certainly be fulfilled. Mitch McConnell is not known for elevating principle over political interest. Quite the opposite. See Garland, Merrick.

          1. You seem to believe a Senate trial would be conducted like a normal criminal trial. Senate gets to set the rules, just like the House gets to make the rules for the investigation. So your comment about restrictions on what questions can be asked or answered doesn’t apply.

            McConnell just applied the Dem’s own Biden rule to a Dem candidate. Can’t blame him for the Dem’s not sticking to their own principles. If the situation were reversed, would the Dems have done anything differently?

            1. Goju, how do you know which Senators will be making those rules? To keep control of the rule-making, won’t Republicans have to prevent defections to the Democratic side? What conditions might any fence-sitting Rs impose for their cooperation? Some of them might decide they have as much political stake in full trial-like procedure as any Democrat.

            2. You seem to be replying to David as there is nothing in my comment leading to the implication you’ve raised and I made no comment “about restrictions on what questions can be asked or answered.”

              It wasn’t “the Dem’s own Biden rule” as that is based on something Biden said in 1992 when no SC nominations were pending, it was never adopted by “the Dems” generally, it has not been used or applied to a SC vacancy in the final year of in the last 100 years (and maybe before, haven’t checked that history). McConnell did something new, he wasn’t applying “the Dems own Biden rule.” The Democrats very well might have. In the future, they definitely will not. Republicans crossed that norm first.

              *Bonus: You probably don’t remember that the Biden rule wasn’t “don’t have a confirmation vote on a nominee until the next President was sworn it”, it was that the President should “not — name a nominee until after the November election is completed.” This actually suggests that a confirmation vote could be held after the November election but before January. The “Biden rule” is a made up thing you have bought hook, line, and sinker. Again, McConnell upped the ante. Democrats will now follow the McConnell rule, no doubt.

        2. Usually not by someone with a personal and political stake in the outcome. You know about recusal, right?

          What’s CJ John Roberts’ personal and political stake in the outcome?

          1. That comment was in response to the comment about trials restricting what questions and answers are allowed. As indicated by the cut and paste of the original quote.

            CJ Roberts possible personal or political stake in a Senate trial are irrelevant as the rules would be established by the Senate majority. So Nova’s comment on criminal trials would not apply.

            1. I don’t recall or see anywhere that I made a comment “on criminal trials.” I pointed out that the House impeachment proceedings are not a trial, but the Senate trial of any articles of impeachment are. I asked how the same rules could be applied to both and you are just avoiding an answer because your initial comment just, as I said, made little sense because the House and Senate will be doing two different things, so the procedures necessarily will be different.

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