Trump’s Legacy May Include New Limits On Presidential Powers

The law of unintended consequences figures prominently public policy. When the legacy of President Trump is written into the history books, whether that be one year from now or five, it is likely that this axiom, which holds that actions frequently have effects that were far from their intended purpose and that often run counter to it, will play a prominent role. In President Trump’s case, the result of the imposition of the law of unintended consequences may be that the president’s plan to use broad executive powers to enact his agenda actually ends up limiting presidential power both for Mr. Trump and his successors.

Way back in January 2016, candidate Trump announced his intention to follow Barack Obama’s lead in using Executive Orders to get things done when Congress refused to act. “I won't refuse it. I'm going to do a lot of things, Trump said on “Meet the Press” at the time.

“I mean, he’s led the way, to be honest with you,” Trump said, “But I’m going to use them much better and they’re going to serve a much better purpose than he’s done.”

When Bill Barr was confirmed as attorney general, the president found a likeminded lawyer to help carry out his aims and, to coin a phrase,  be his wingman. In a speech to the Federalist Society in November 2019, Barr lamented what he called the “steady encroachment on Presidential authority by the other branches of government,” which he said had “substantially weakened the functioning of the Executive Branch, to the detriment of the Nation.”

Most constitutionalists would probably disagree with Barr. In fact, it is generally conceded that Congress has abdicated much of its authority to the president over the past century or so. While there were exceptions, such as the War Powers Act, Congress has habitually passed vaguely worded laws and then punted them to the executive branch to iron out the details. As a result, the president and his cabinet have an almost unfettered hand in rulemaking for everything from health insurance policies to import taxes.

Even this broad expansion of presidential power has not been enough for recent chief executives. Both Barack Obama and Donald Trump pushed the envelope of presidential and executive bureaucratic authority. Resistance from Congress to these usurpations of its power has mainly been a partisan issue with the battle lines reversing depending upon which party is in power at the time.

However, the Trump Administration, headed by a president who has said repeatedly that “Article II allows me to do whatever I want,” has provoked a flurry of lawsuits pushing back on the idea that presidential power is unlimited. On one occasion, the president’s lawyers even argued in court that Mr. Trump could not even be punished for shooting someone on Fifth Avenue while in office, but that law enforcement agencies would have to wait until his term was up.

Many of these lawsuits are as yet undecided, and some may not reach the Supreme Court until after Mr. Trump is once again a private citizen. This would most likely mean that the Court never rules on these issues at all and lower court rulings stand.

Here are several of the landmark cases winding their way through the judiciary:

Donald J. Trump v. Deutsche Bank AG, Trump v. Vance, and Trump v. Mazars  Lower courts ruled that President Trump must comply with a congressional subpoena for his financial records as part of a congressional investigation. The president’s lawyers argued that he had “temporary presidential immunity” while in office. The cases will be heard by the Supreme Court in March. The cases deal with both congressional and grand jury subpoenas.

Committee on the Judiciary v. McGahn A federal judge ruled in November that former White House counsel Don McGahn must testify in response to a congressional subpoena. The White House had claimed that McGahn was “absolutely immune from compelled congressional testimony.”

Regents of the University of California v. Department of Homeland Security and NAACP v. Trump These two cases will determine whether President Trump has the authority to end the DACA program, established as an executive action by President Obama. The Supreme Court heard oral arguments on these cases in November.

El Paso v. Trump, Trump v. Sierra Club, and State of California v. Trump The trio of cases challenge President Trump’s use of national emergency powers to redirect funds for construction of the border wall. These cases will probably end up at the Supreme Court as well. So far, the high court has allowed the Administration to continue using reprogrammed funds in the Sierra Club case, but a federal judge in Texas granted an injunction to El Paso County to stop the reappropriation by the president.

Some cases have already been decided as well and the results have been mixed. For example, the Supreme Court ultimately upheld the president’s travel ban but only after lower court rulings led the Administration to revise the original order. Likewise, the US Trade Court upheld the president’s authority to impose tariffs for national security reasons. On the other hand, the Supreme Court denied a Trump Administration attempt to add a citizenship question to the census because the Commerce Department violated the Administrative Procedures Act, which requires honesty and openness in public rulemaking.

Now, with US-Iranian relations at a crisis stage, President Trump is also provoking a debate on presidential war powers. Presidents have long considered the War Powers Resolution to be unconstitutional, but Speaker Nancy Pelosi has announced her intention to hold a vote limiting Trump’s ability to strike Iran without congressional permission. Among the questions to be considered is whether a tweet satisfies the president’s obligation to notify Congress.

https://twitter.com/realDonaldTrump/status/1213919480574812160?s=20

Although President Trump has appointed many new judges, including two Supreme Court justices, the outcome of many of these cases is not preordained. Constitutionalist judges will vote on the law and the merits of the case rather than partisan affiliation. On some cases, that will put them at odds with Mr. Trump.

The Founders, fresh from a revolution in which they threw off the rule of a king, did not intend the Constitution to set up an imperial presidency with executive powers that were unlimited or nearly so. If courts act to rein in the imperial presidency, Americans of both parties will ultimately benefit.

Originally published on The Resurgent

Judge: Former WH Counsel McGahn Must Comply With House Subpoena

In a blow to the White House impeachment defense strategy, a federal judge has ruled that former White House Counsel Don McGahn cannot ignore a congressional subpoena. “No one is above the law,” the judge wrote in the ruling.

U.S. District Judge Ketanji Brown Jackson of Washington disagreed with the White House claim that McGhan was “absolutely immune from compelled congressional testimony.” The ruling by Jackson, an Obama appointee, is already being appealed in a case that could quickly wind its way to the Supreme Court.

Per the Washington Post, the case originated in August when Democratic House members filed suit to compel McGahn to testify regarding allegations in the Mueller report that President Trump obstructed justice by ordering subordinates to interfere with the Russia investigation. The Trump Administration claimed executive privilege and argued that McGahn could not be forced to testify or turn over documents. Judge Jackson rejected this claim, saying that if McGahn wants to invoke executive privilege, he must do so in person and on a question-by-question basis.

In the ruling, Jackson said that the government claim of “unreviewable absolute testimonial immunity” was “baseless, and as such, cannot be sustained.” She said that a subpoena was part of the legal process, not a political instrument, and that, “per the Constitution, no one is above the law.”

The ruling now raises the possibility that McGahn will be called as a witness in the ongoing impeachment inquiry. It also has implications for other Administration officials who have refused to comply with House subpoenas. Under the precedent, if upheld on appeal, Vice President Pence, Secretary of State Pompeo, Chief of Staff Mick Mulvaney, and former National Security Advisor John Bolton could be compelled to testify.

A big question is how long the legal question will take to be resolved. With less than a year to go before the election, it is possible that the courts will not issue a final decision until shortly before the election. The other Administration officials might also fight the subpoenas individually in hopes of delaying testimony until after the election.

For their part, Democrats have adopted a strategy of “adverse inference” and announced their plans not to subpoena witnesses who have refused to testify, reports Roll Call. Under the doctrine, which is used in civil lawsuits, if a witness refuses to testify or destroys documents, a judge can order jurors to presume that the evidence would have been bad for the side that refused to provide it or destroyed it. In the context of impeachment, the Administration’s failure to allow witnesses that could present exculpatory evidence is viewed as a tacit admission that their testimony would support the version of events given by witnesses who testified against the president.

The Democratic strategy is aimed at moving impeachment forward quickly and not allowing the Administration’s refusal to cooperate to drag out the process. Democrats would prefer to wrap up the impeachment before the primaries begin early next year.

However, the ruling against the Administration in the McGahn case means that Democrats now have a choice to make. They can either press forward with impeachment based on current evidence or they can sue to force testimony from Trump’s inner circle and gamble that courts will resolve the issue quickly.

The nation is closely divided on impeachment and further incriminating testimony from witnesses with direct knowledge of Trump’s orders could help to build support for impeaching and removing the president. The clock is ticking, however, and voters deserve a resolution to the impeachment crisis before they go to the polls next November. The best solution would be for the White House to read the writing on the wall and allow staffers to testify, especially if they have testimony that would exonerate Mr. Trump.

In a statement announcing its appeal, the Department of Justice said the ruling “contradicts longstanding legal precedent established by Administrations of both political parties. We will appeal and are confident that the important constitutional principle advanced by the Administration will be vindicated.”

However, Judge Jackson’s ruling is compelling. “Stated simply,” she wrote, “The primary takeaway from the past 250 years of recorded American history is that presidents are not kings.”

Originally published on the resurgent

Are Democrats Really Running A Sham Impeachment Inquiry?

The main defense of Republicans in the impeachment inquiry into President Trump has been to attack what they call the secrecy of the impeachment inquiry. Trump’s defenders point to closed-door hearings and the fact that the House has not yet been allowed to vote on whether to conduct the impeachment inquiry itself. There is some truth to the charges against the way the Democrats are conducting the inquiry, but there are also examples of Republican criticisms being off base.

The fact that Speaker Nancy Pelosi has not allowed a House vote on whether to begin an impeachment inquiry has been a major complaint of Republicans. On Sept. 24, Pelosi merely said, “I am announcing the House of Representatives moving forward with an official impeachment inquiry” and the ball started rolling.

Republicans seem to be correct that no other impeachment inquiry has ever been launched without a House vote, but the bottom line is that neither the Constitution nor House rules require a vote to begin an impeachment investigation. As Keith Whittington of Lawfare pointed out, the House leadership chose to use standing committees to investigate Mr. Trump’s alleged abuses of power and were entirely within House rules to do so.

Further, neither the Constitution nor House rules require an impeachment inquiry at all. If the House wanted to bring up an impeachment vote with no investigation at all, it could do so. Such a scenario might happen if a president’s actions were either obvious to the most members of Congress or if the president openly admitted to impeachable acts.

Republicans have also complained about how they are being treated in committee. There have been claims that Republicans were shut out of committee meetings and were not allowed to be present and ask questions at depositions. Intelligence Committee Chairman Adam Schiff explained the need for some secrecy to Roll Call, stressing that the current inquiry is different from the impeachment investigations into Bill Clinton and Richard Nixon where special prosecutors had already investigated the incidents that led to the impeachment.

“In each of those cases, there were either independent counsels or special prosecutors doing the investigation, doing the initial investigative work, and that was all done behind closed doors,” Schiff said.  

Schiff explained that if witnesses were aware of what other witnesses had said, they could tailor their own testimony “either to hide the truth or color the truth or know just how much they can give and how much they can conceal.” It is a basic investigative technique to separate witnesses and to get their individual testimony without having it tainted by hearing others.

“Now, I should tell you, notwithstanding those good and sound reasons, at each of these committee interviews and depositions and when we get to open hearings — and we will get to open hearings — the Republicans are completely represented,” Schiff said.

Schiff said that all members of the Intelligence, Oversight and Foreign Affairs committees and their staffs can attend depositions and ask questions. Republicans are provided equal time for questioning with the sides alternating every 45 minutes to an hour.

“They have been largely staff-conducted interviews. They have been very professionally done, although members, too, get to ask questions and we go until the questions are exhausted so they get to ask all the questions they want,” Schiff said.

In one publicized case, Rep. Matt Gaetz was ejected from a meeting of the joint committee investigating impeachment, but Gaetz was not a member of the committees holding the meeting. Gaetz is a member of the Judiciary Committee but it is the Intelligence, Foreign Affairs, and Oversight Committees that are conducting the impeachment hearings. There is no evidence that Republicans who serve on those three committees have been excluded. In fact, Axios pointed out that, when Republicans raided an impeachment hearing this week, 13 of the Republican protesters already had access to the hearing because they were members of the committees holding the hearing.  

Republicans such as Jim Jordan (R-Ohio) don’t buy Schiff’s explanations. “We’re talking about impeaching the president of the United States in secret, based on an anonymous whistleblower with no first-hand knowledge, [who] has a bias against the president, has been reported that he worked with Joe Biden, who when he hears about the call, the next day writes a memo using all kinds of descriptors like crazy, scary, but then waits 18 days before he files a complaint,” Jordan complained. “And who does he run up to see in that interim? Adam Schiff’s staff. And now that guy says, ‘Now I’m going to be the special counsel and the independent counsel.’ That is laughable.”

Jordan’s rant actually undercuts another Republican complaint, namely that the whistleblower has not been called to testify. But if, as Jordan concedes, the whistleblower had no direct knowledge of Trump’s actions, he or she has little to add to the testimony of State Department officials who were in the loop and privy to Trump’s decision-making.

The answer is similar for Republican complaints about being denied access to transcripts of witness testimony. Republicans say that only members of applicable committees have access to the transcripts and then only under the watchful eye of Democratic minders. Democrats answer that the transcripts will be made public after the investigative phase is finished. Left unsaid is that they will be released when the possibility of witness tampering is reduced.  

House Democratic Caucus Chairman Hakeem Jeffries also pointed to the 1998 House resolution authorizing subpoena power for the Clinton impeachment investigation, noting that Democrats did not have the power to independently subpoena their own witnesses as some Republicans have claimed but had to get approval from either the chairman or the full committee. Jeffries says that the current subpoena rules for the Intelligence Committee are no different.

Many members of the Trump Administration have used their complaints about the impeachment proceedings to justify failing to comply with subpoenas from House committees. Unfortunately, this is a double-edged sword since some Republicans, including Lindsey Graham (R-S.C.), are on record that refusing to comply with congressional subpoenas is itself an impeachable offense.

A further claim by Republicans is that impeachment requires a criminal act. While the Constitution specifies treason, bribery, and “high crimes and misdemeanors” as grounds for impeachment, the original intent of the phrase included acts that were not explicit crimes. A list of impeachments on the House website reveals that, of 19 impeachments from throughout US history, eight were for noncriminal acts including three cases that specifically cited abuse of power.

A charge by Jack Langer, a spokesman for Rep. Devin Nunes (R-Calif.) that, “There are no established rules or parameters at all, the Democrats are just inventing them as they go” seems to be untrue. Democrats argue that all of the normal committee rules protecting minority rights are still in effect for impeachment-related hearings.

In fact, it was only four years ago in 2015 when the chairman of the House Oversight Committee, Trey Gowdy (R-S.C.), personally dismissed Rep Darrell Issa (R-Calif.) from a hearing during the Benghazi investigation. The reason? Issa was not a member of the committee. The Democrats are following the same rules.

Republicans do have a stronger case in their complaints about not being able to call their own witnesses and present exculpatory evidence, but the test as to whether those claims will stand up will only come when the House moves beyond the investigative phase. Democrats say that there will be open sessions and transcripts will be released after the facts have been gathered. Current indications are the impeachment proceedings might move into the open phase as early as mid-November.

“We do anticipate a time when we'll be releasing transcripts, and we do anticipate there will be a time when we will hold back some of these witnesses for open session, and we may call witnesses in open session that we haven't called in closed session. But we will do so giving the GOP members every opportunity to ask questions,” Schiff said. “We want to make sure that we get to the truth, and this is the process, I think, early in an investigation that makes the most sense.”

Democrats seem to be following established congressional guidelines for congressional hearings, even if the decision to use standing committees rather than a select impeachment committee is not how impeachments have traditionally been handled. Before an impeachment vote is taken, critics of the president should make their case to the public. Supporters of the president do deserve a chance to present their side of the story as well. Indications are that the time for public hearings is coming within the next few weeks.

Originally published on The Resurgent