Separation of Power, Esyay, But Ixnay on the Checks and Balances

Checks and Balances

Day before yesterday’s decision in House Judiciary Committee v. McGahn was a big deal. It runs to 121 pages, and if you want to read it yourself, here it is. Be my guest.

Last night I had a spot of insomnia, and—in lieu of a visit with my friend Jack Daniels—I read part of it and skimmed part of it. As you may know, the case involves the House Judiciary Committee’s effort to subpoena Don McGahn, Esquire, former White House Counsel. The committee wanted McGahn to give public testimony covering the same ground as his thirty hours of testimony to Bob Mueller, dealing with the Orange Man’s efforts to obstruct justice.

Here are some highlights, in the form of Q and A.

McGahn was White House Counsel, so, on the face of things, you might think that any conversations between McGahn and the Orange Man would be protected BOTH by executive privilege AND By attorney-client privilege. Is that what this week’s case was about?

No, it was not. Though there most definitely some privilege issues to be resolved. According to the Mueller Report, the Orange Man wanted McGahn to assist in his illegal obstruction of justice. There is a “crime/fraud exception” to the attorney-client privilege—the gist of which is that you and your lawyer can’t hide behind attorney-client privilege if you’re asking your lawyer to help you commit an ongoing crime. It is widely thought that the same exception would apply to executive privilege.

Also, there’s the fact that Trump waived any claim of privilege vis-à-vis McGhan’s testimony to Mueller. (Presumably, the Orange Man thought that McGahn was going to lie through his teeth to protect Dear Leader, aka God’s Chosen One—an expectation that was grievously disappointed.) And, generally speaking, once a privilege is waived, it can’t be unwaived.

But this week’s opinion told us nothing about these matters. What this week’s opinion said was that McGahn had to show up pursuant to the congressional subpoena, answer whatever questions he thought he could answer, and assert whatever privileges he thought might prevent him from answering any question he felt he couldn’t answer.

OK, then, what WAS the case about?

The case was about the Trump’s Administration’s argument that the system of checks and balances, as traditionally understood and as depicted in the above chart, is wrong in important respects. First, the Administration argued that “close advisors” of a President are entitled to an absolute “testimonial immunity.” In other words, a President has the power to obstruct congressional investigations of possible wrongdoing in the executive branch by directing “close advisers” not to show up at all.

Second, the Administration argued, the courts have no right, under the Constitution, to referee such a dispute between Congress and the President.

Foundational to our system of constitutional government is the 1803 case, Marbury v. Madison, where the Supreme Court declared, “It is emphatically the province and duty of the judicial department to say what the law is.” The Trump Administration wanted to overturn Marbury, at least in important respects.

The Trump Administration is big on “separation of powers,” but doesn’t cotton to “checks and balances.” What would be the effect on our constitutional system of the Administration’s position prevails?

The effect would be to protect presidential criminal conduct and other wrongdoing from congressional investigation, and probably from judicial accountability as well.

What did the judge say this week about the Trump Administration’s constitutional arguments?

She said they were bullshit.

Has this issue come up before the Trump Administration?

Yes, it has. The administration of Bush the Younger asserted similar legal claims to try block the House Judiciary Committee from looking into its mass firing of federal prosecutors. A district court decision blew the Bush the Younger Administration out of the water. While the case was on appeal, the Administration and the Judiciary Committee negotiated a settlement in the form of an “accommodation,” setting parameters on how the investigation would proceed. In effect, Bush the Younger used an untenable, extreme legal position as a tool of negotiation to gain some leverage in protecting its interests.

What about the Obama Administration?

The House of Representatives—then under Republican control—got into a pissing contest with Attorney General Eric Holder over congressional investigative powers. In a 2013 case, I am sorry to say that the Obama Administration made an argument that was sort of a first cousin of the Trump Administration’s position. The judge said that “the Attorney General takes the position that a dispute between the legislative and executive branches must be resolved through negotiation and accommodation, and that the judiciary may not, or at least, should not, get involved.” (emphasis added)

How did the judge rule in that case?

She said it was still a bullshit argument.

What happens now?

The case is being appealed to the Court of Appeals for the D.C. Circuit. If you would like to best on a sure thing, please bet that appellate court will side with the district court.

God’s Chosen One will appeal to the Supreme Court, which may or may not take the case.

What will the Supreme Court do?

I have no earthly idea.

What would an entirely cynical, politicized right wing majority of the Supreme Court do?

If they think that Republicans will continue to be elected president indefinitely, then a presidential dictatorship might look like a really good thing, from such a cynical perspective.

On the other hand, if they entertain the possibility that Democrats may sometimes win future presidential elections, then a presidential dictatorship might tend to lose its appeal.