Republicans for the Rule of Law Have a Few Choice Words

As a matter of policy, I tend to stay away from stories and opinion pieces about things that may or may not happen. That said, Jennifer Rubin may well prove to be right when she observes that Nancy Pelosi may yet have the last laugh.

As I said yesterday, it really stinks to argue that the House’s factual case is “too indirect” and “too circumstantial”—and then vote to block the witnesses with direct knowledge from testifying. You can fool all of the people some of the time, and you can fool some of the people all of the time, but even those you can fool pretty much all of the time have their limits, and if you sling enough bullshit for a long enough time, you will find out what those limits are. That’s the point we’re at now.

“What about Executive Privilege?” Asks a Friend from the Progressive Table at Happy Acres

“Can’t Trump just order Bolton not to testify?” she asks.

Yes, he can do that very thing. And he can also order Bolton to jump off the Brooklyn Bridge or to douse himself with gasoline and light a match.

But Bolton does not have to obey the order.

The legal analysis goes like this. There is case law telling us that conversations between a president and his close aides, about policy, are protected from disclosure by the doctrine of executive privilege. Bolton was a close aide. The matters about which he will testify concern policy. So executive privilege presumptively applies.

But legal privileges against disclosure may be waived, and Trump may already have waived this one—by disclosing some of the evidence but trying to hide the rest of it. And legal privileges do not protect conversations intended to implement ongoing crime or fraud. (And do remember that Bolton called Ukrainegate “Giuliani’s drug deal.”)

How Could Trump Try to Use Executive Privilege to Block Bolton’s Testimony?

The lawyer-client privilege belongs to the client, not the lawyer, and the executive privilege belongs to the executive, not the aide.

I assume that, if we get to the point where Bolton actually takes the stand in the Senate, then Trump’s defense lawyers will try to assert executive privilege pretty much after every question. I assume that Chief Justice Roberts would initially rule on whether Bolton must answer the question, but that ruling is subject to the views of a majority of the Senate. So if some of the Republicans want to play that game, there could be lots and lots of votes.

Could Trump Assert the Executive Privilege in Court to Prevent Bolton from Testifying in the Senate?

He could always try. There are multiple reasons to think he would not get very far. But we are sailing into uncharted waters, here.

Things Are Getting Interesting

shit hits fan

“Transcript”of July 25 call between Trump and Zelensky

Whistleblower Complaint

Testimonyof Joseph Maguire, Acting Director of National Intelligence, before the House Intelligence Committee

White House Talking Points, Sent in Error to Democratic Congressmen

Well, it was quite a morning. I was just drinking my first cup of French roast coffee and swallowing a few pills when the teevee cut to the hearing. I sat through all of it. I have a few observations.

Defending Trump—or Not

Only one Republican congressman—or maybe two, depending on how you count—actually defended what Trump did. The one clear defender was Rep. John Ratcliffe (R-Idiot). Meanwhile, one other Republican said the phone call was “not OK.” At least, I believe those were his words.

In sum, the Republicans members of the Intelligence Committee tried to score points, but the points they tried to score were tangential to the substance of the charges against Trump.

“No Quid Pro Quo”  

Rep. Ratcliffe (R-Idiot) tried manfully to uphold the White House talking point that there was no quid (US military aid) in exchange for a quo (dirt on the Bidens). But the “transcript” has Trump using the word “reciprocal.” Friends and neighbors, “reciprocal” means quid pro quo. And, when Zelensky* said he wanted to buy some anti-tank missiles, Trump responded, in the next sentence, by asking for a “favor.”

So that dog won’t hunt.

I have long heard from experienced litigators that it’s important not to impose on yourself the burden of proof on a legal element that isn’t actually necessary to prove the case. Consistent with that thought, a fellow lawyer whom I greatly respect has said the Democrats should urge that impeachment is justified whether or not there was a quid pro quo.

The general principle is salutary, but I’m not sure it applies in this case. First, the ground is littered with evidence of quid pro quo. Secondly, it’s the withholding of military aid that adds so much to vileness of the deed.

“The Bidens are Corrupt and Trump Has the Right to Ask for Investigative Help”

Inviting foreign government oppo research should be enough for impeachment. Inviting foreign government oppo research + withholding military aid to coerce foreign government operation surely ought to be enough.

But, to clench the case with a lot of folks, you need to make the additional point that the dirt Trump wanted Ukraine to dig up was bogus dirt. You need to prove that, even if Hunter Biden made an unwise career move, his pappa’s actions were in fact opposed to Ukrainian corruption, not in support of it. And that case is factually complicated.

In that connection, it will be recalled that Republicans control the Senate—and that at least some of them want to investigate Biden.

I say, investigate away. And thank you very much.

“The Whistleblower Relied on Hearsay”

Lots of the Republicans beat that drum this morning. But the answer is, well then, let’s find out who the whistleblower spoke to, and call all of them before us, and find out first hand what they know.

Acting Director Maguire’s Integrity or Lack Thereof

The Democrats made a mistake in focusing the hearing on Maguire’s integrity. First off, Maguire’s integrity has no bearing on whether Trump has committed impeachable offenses. Second, Maguire came off as a chain-of-command guy thrust into a situation where he was out of his depth.

So, that dog didn’t hunt, either. Probably the wrong conclusion—exercising poor discretion is not the same as immorality—on a tangential issue, leveled against an individual who seemed sympathetic to me, and I suspect to most others as well.

“Maguire Violated the Whistleblower Act”

I haven’t studied the matter, but, based on this morning’s hearing, the question appears debatable.

“Maguire Exercised Poor Discretion”

The gist of Director Maguire’s testimony is that, while he was not compelled to disclose the complaint (based on the statutory interpretation he felt bound to follow), he nevertheless had discretion to disclose it to Congress. And, furthermore, that he would have exercised his discretion to disclose it, but for the fact that it was based on a conversation protected by executive privilege—which is, of course, the President’s prerogative to waive or to assert.

But, generally speaking, one may not hide behind a “privilege” to cover up a communication in furtherance of a crime or fraud. By logical extension, the President ought not to be able to hide behind a privilege in order to cover up a communication made in an effort to undermine the Constitution.

A wiser man that Acting Director Maguire would have seen that.

“Did You Talk with Trump about the Whistleblower Complaint”

Maguire refused to answer that question, on grounds of privilege, but let the fixed impression that yessiree, indeedy, he did that very little thing.

The privilege, however, would extend only to cover up the substance of a conversation, not identification of a topic discussed. Maguire apparently did not know that.

Trump’s Three Big Mistakes

In conclusion, let me talk about mistakes. You probably know Christopher Columbus’s three mistakes: when he started, he didn’t know where he was going; when he got there, he didn’t know where he was; and when he came back, he didn’t know where he had been.

By like token, Donald J. Trump has made three colossal errors. That is because Donald J. Trump is a delusional nincompoop.

His first error was to think that the “transcript” he released is exculpatory, when it fact is inculpatory.

His second error was failure to recognize that, by releasing the “transcript,” he was waiving any colorable claim of executive privilege concerning the subject matter of the document.

His third error was not understanding that his actions were going to lead him into a world of hurt.

**

* There seems to be some controversy about how many y’s are in the Ukrainian president’s name.

The Legitimate Scope of Legislative Oversight and Investigation of Trump …

… What do the Cases Say?[1]

Modern case law on the limits of congressional oversight has evolved into a fairly coherent body of principles. The Supreme Court and other precedents are much more consistent with one another than is true in other areas of constitutional law.

It is likely that at least some of the Supreme Court justices will apply these principles rationally and in good faith to Trump’s blanket objections to oversight. But it is at least theoretically possible that a majority could choose to disregard established precedent. They might do this overtly, by identifying previous cases as wrongly decided. Or they might act in bad faith, deliberately misinterpreting and misapplying the precedents. That, we cannot control or reliably predict. But we can say with some confidence what principles may be distilled from the many Supreme Court and other judicial decisions that have addressed legitimate congressional investigation and oversight of the executive branch.

The General Rules

  1. The Power to Investigate as an Implied Power of Congress.Article I of the Constitution says nothing about Congress’ right to investigate or exercise oversight. Accordingly, it has sometimes been argued that Congress has no such power. The Supreme Court has, however, repeatedly rejected this argument. Instead, the cases tell us that the two houses of Congress, acting through their committees, have broad power to conduct fact-finding relevant to their legitimate functions. These legitimate functions include:
  • deciding whether there is a need for legislation on a particular topic and, if so, what form the legislation should take (including “surveys of defects in our social, economic or political system for the purpose of enabling Congress to remedy them”)
  • deciding what money should be appropriated for what purposes
  • general oversight of the executive branch (Congress’ power “to inquire into and publicize corruption, maladministration or inefficiency in agencies of the government”)
  • impeachment (House of Representatives) and removal from office (Senate)
  • approval or disapproval of the President’s acceptance of foreign emoluments.
  1. The Implied Power to Compel Testimony and Information.The cases are crystal clear that effective information-gathering implies the power to compel testimony and document production from witnesses.
  1. Courts as Final Arbiters of Legitimacy of Investigations.Each branch of government is entitled, even duty bound, to interpret the Constitution, but where branches differ, it is the courts that have the final say.
  1. “Bad Motive” as a Defense to Investigation?An investigation that is reasonably related to a legitimate congressional function may not be resisted on the ground that members of Congress are biased or acting out of political motives. The principle of separation of powers—and, in particular, the Constitution’s Speech or Debate Clause—require that claims of inappropriate congressional motivation be disregarded by the courts, where it appears on the face of things that an investigation has a reasonable relationship to a legitimate legislative purpose.

Exceptions, Qualifications, and Limitations to the General Rules

A. No Power to Conduct Investigations Unrelatedto Legitimate Functions of Congress.Congress does not have unlimited power to inquire into any matter it chooses, including the private business affairs of individuals it thinks may have behaved unlawfully or otherwise objectionably. Exposure, merely for the sake of exposure, is not allowed. But the courts must rebuttably presume that Congress is using its investigative powers in good faith.

Note: persons accused of aiding government corruption commonly claim they are being investigated by their political enemies for the mere sake of exposure. Such claims are generally rejected. But the core of Trump’s argument in the accounting case is that Congress has no valid legislative purpose in attempting to find and expose illegal business conduct. A closely related argument is Trump’s claim that Congress is impermissibly trying to act as a law enforcement agency (see point D, below.) 

The House of Representatives clearly has the constitutional power to impeach—a function similar to that of a grand jury. It’s likely that the courts would say that, in dealing with impeachment, the House has wide investigative powers similar to a grand jury. But Trump’s lawyers make a big deal out of the absence of any House resolution authorizing an impeachment inquiry. 

B. Inquiries Must be “Pertinent” to the Exercise of the Legislative Function. Even if an investigation is lawful and the witness in question is lawfully before Congress, he or she may still object if specific information being sought is not “pertinent” to the investigation.

In litigation over the “pertinency” of a particular question, the presumption of innocence carries more weight than the presumption of “pertinency.” That means, the government bears the burden of proving that the question posed was indeed “pertinent” to the investigation.

Comment: in view of points A and B, it would appear that a statute requiring disclosure of any citizen’s tax returns to Congress could, in principle,be applied in ways that would unconstitutionally exceed Congress’s right to investigate.

C. What if the Possible Legislation Being Considered would be Unconstitutional?Then the investigation might be deemed improper, and the witness might be excused from testifying. But, of course, a court should be mindful that potential legislation could take many forms, and some of them might be OK.

Note: Trump advances based on this principle, claiming, for example, that, at least outside of impeachment, Congress may not enforce violation of the Emoluments Clause, and accordingly has no business investigating alleged violations of the Emoluments Claims or attempting to uncover Trump’s conflicts of interest.

D. Improper to Usurp Judicial or Executive Branch Functions. Congress may not perform the functions of a court or a prosecutor, except in the case of impeachment and removal from office. Nor may an investigation unduly interfere with ongoing criminal proceedings.

Again, miscreants subject to legitimate congressional investigations often invoke these arguments, generally without success. 

As noted above, Trump’s lawyers lay heavy emphasis on their claim that, at least where impeachment isn’t on the table, the House has no legal ability to gather facts merely for the sake of exposing violations of law.

E. Potential Exposure of Crimes Not an Excuse for Failure to Comply.Notwithstanding point D, the possibility that a congressional investigation might uncover criminal conduct does not excuse a witness from complying with an otherwise proper demand for information.

F. Congress Must Respect Individual Civil Rights.And, notwithstanding point E, a witness may legitimately object to a violation of his Fifth Amendment right not to incriminate himself. Similarly, even in a proper investigation, Congress may not violate other civil rights, such as free speech, freedom of the press, and freedom of association, and freedom under the Fourth Amendment to be free of unreasonable searches and seizures.

Note: issues arising under point F often call for a court to weigh and balance the rights of the individual versus Congress’s need for information. For example, courts are skeptical about claims of “chilling” free speech or about invasion of privacy. 

G. “Privileges” as a Defense for Noncompliance. This area of case law is less developed, and more uncertain, than the principles discussed above. 

a. The Attorney-Client Privilege. Lawyers for Congress have claimed that the attorney-client privilege, a rule of evidence that applies to court proceedings, does not excuse compliance with congressional demands for information. But the principle has seldom been tested in court, and congressional investigations have often respected legitimate assertions of attorney-client privilege.

b. A Broad “Deliberative Process Privilege”?Some presidents, including Reagan and Obama, have asserted a broad privilege against disclosure of communications within the executive branch, but these broad assertions haven’t received any definitive judicial treatment. In addition, Reagan and Obama spokesmen recognized that such a broad privilege could not shield corrupt or fraudulent conduct.

c. A Narrower “Executive Privilege.”Several important decisions recognize a rather narrow executive privilege—shielding communications between the president and her advisers—where 1) the protected communication was written, solicited, or received by the president or by one of her close advisers and 2) the communication relates to a core presidential power, such as the pardon power or the power to conduct foreign policy.

d. The Executive Privilege is a Qualified Privilege against Disclosure. The privilege may be overcome where the information sought is important evidence in a legitimate investigation and is not overwise available to the investigator.

e. A Crime/Fraud Exception to Executive Privilege?A client may not hide behind attorney-client privilege if the topic of his conversation with his lawyer is an ongoing crime or fraud.

I think it’s likely that a court would apply the same rule with regard to executive privilege.

f. “Waiver” of Executive Privilege.Where partial disclosure has been made, a court will rule that any attorney-client privilege has been waived. The underlying thought is that it’s unfair to let a client disclose all the good facts while hiding all the bad facts about his dealings with his lawyer.

It’s likely, in my view, that the courts would apply the same limitation to any assertion of executive privilege.

[1]Principles distilled from Anderson v. Dunn, 6 Wheat. 204 (U.S. 1821); Kilbourn v. Thompson, 102 U.S. 168 (1880); McGrain v. Daugherty, 273 U.S. 135 (1927); Sinclair v. United States, 279 U.S. 263 (1929); Townsend v. United States, 95 F.2d 352 (D.C. Cir. 1948); Tenney v. Brandhove, 341 U.S. 367 (1951); United States v. Rumely, 345 U.S. 41 (1953); Quinn v. United States, 349 U.S. 155 (1955); Watkins v. United States, 354 U.S. 178 (1957); Tenney v. Brandhove, 341 U.S. 367 (1951); United States v. Rumely, 345 U.S. 41 (1953); Quinn v. United States, 349 U.S. 155 (1955); Watkins v. United States, 354 U.S. 178 (1957); Barenblatt v. United States, 360 US. 109 (1959); McPhaul v. United Statess, 364 U.S. 372 (1960); Shelton v. United States, 404 F.2d 1292 (D.C. Cir. 1968); United States v. Nixon, 418 U.S. 683 (1974); Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491 (1975); McSurely v. McClennan, 521 U.S. 1024 (D.C. Cir.1975); Nixon v. Administrator of General Services, 433 U.S. 425 (1977); Exxon v. FTC, 589 F.2d 582 (D.C. Cir. 1978); United States v House of Representatives, 556 F. Supp. 150 (D..C.C. 1983); Senate Select Committee on Ethics v. Packwood, 845 F. Supp. 17 (D.D.C. 1994); In re Sealed Case (Espy), 121 F.3d 729 (D.C. Cir. 1997); Judicial Watch, Inc. v. Department of Justice, 365 F.3d 1108 (D.C. Cir. 2004); Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53 (D.C.C. 2008); Comm. on Oversight and Reform v. Holder, 979 F. Supp. 2d 1 (D.C.C. 2013); Bean LLC v. John Doe Bank, 291 F. Supp. 3d 34 (D.D.C. 2018); Trump v. Comm. on Oversight and Reform (D.D.C. 2019); Trump v. Deutsche Bank AG (S.D.N.Y. 2019).