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Let’s see, who hasn’t Trump blamed for his poor decisions and illegal actions?
BERLIN — When Denis Mukwege, a Congolese gynecologist, and Nadia Murad, an Iraqi Yazidi were awarded the Nobel Peace Prize last October for their work to stop the use of sexual violence as a weapon of war, there was widespread praise from all parts of the world, including the United States.But when the Trump administration was asked this month to do its part, and to pass a U.N. resolution to end sexual violence in war, things suddenly looked a bit more complicated.Until the end, international politicians and celebrities urged the United States to “stand on the right side of history,” as actor George Clooney said, and to “ensure [victims’] voices are at the center of our response,” as German Foreign Minister Heiko Maas and actress Angelina Jolie wrote in an op-ed for The Washington Post.But to no avail.On Tuesday, the U.N. Security Council finally passed that resolution, but only in a watered-down version, diluted by the Trump administration.European allies are furious.France’s U.N. ambassador, François Delattre, lashed out at the United States for what he called an “intolerable and incomprehensible” stance.U.S. allies abroad have grown accustomed to a U.S. administration with interests that are often diametrically opposed to theirs, including on trade, Iran and the European Union. But sexual violence in war? Really?The move to water down Tuesday’s resolution followed weeks of U.S. objections to remove all references in that paper to reproductive and sexual health, which the U.S. delegation feared would be understood as support for abortions. Like prior Republican administrations, the Trump administration has rolled back much of the support granted to nongovernmental organizations for projects that support or facilitate abortions.In the Security Council, the United States wasn’t alone in its opposition to the original resolution: Potentially encouraged by the U.S. move, China and Russia threatened to join the protest, even though both had previously supported or abstained from similar resolutions in the U.N. General Assembly.In the Security Council, China and Russia also opposed parts of the resolution that would have made it easier for international organizations to track perpetrators of sexual violence in war.After the references to reproductive health were removed at U.S. request, both nations abstained on Tuesday, and the resolution passed 13-0.The approved resolution still supports measures to end the use of sex as a weapon of war, and Maas, the German foreign minister, carefully worded his response on Tuesday. “The resolution calls on all U.N. member states to support victims through better access to justice, medical and psychological assistance and reintegration into society,” he said.But other U.S. allies were more blunt in their responses, suggesting that the U.S. objections were threatening the dignity of women worldwide.“Women and girls who suffered from sexual violence in conflict, and who obviously didn’t choose to become pregnant, should have the right to terminate their pregnancy,” said Delattre, the French ambassador.The initial version of the draft resolution had stated that victims of sexual violence should be able to access services, which specifically included “sexual and reproductive health.” Amid objections, a subsequent version referred only to “comprehensive health services” for victims of sexual violence.But for the Trump administration, even offering vaguely defined “comprehensive health services” for sexual violence victims went a step too far.In the end, the Trump administration’s opposition to abortions trumped other countries’ determination to offer support to victims of sexual violence. In practice, the watering-down could give nations accused of committing or backing such violence a pretext to justify a lack of progress in supporting victims.Also removed from the final resolution were references to expanded U.N. monitoring that would keep track of violations of the resolution. That, in practice, could mean that perpetrators will have to fear less international scrutiny than originally planned.To avert a U.S. veto, the passed resolution included only watered-down references to the work of the International Criminal Court (ICC), which is supposed to prosecute war crimes but has recently found itself in a clash with the Trump administration after it considered investigating U.S. troops over the war in Afghanistan. Unlike most of the world, the United States never ratified the Rome Statute, the ICC’s founding treaty.For advocates dedicated to ending sexual violence in conflict, the U.S. resistance appeared especially contradictory for an administration that has often portrayed itself as championing the rights of Yazidi women, who have faced sexual violence by the Islamic State in recent years.Human rights groups argue that the U.S. move sends the wrong message, after decades in which sexual violence has become a more systematically used weapon of war. Whereas rape has often accompanied conflict in history, the use of sexual violence as a systematic intimidation tool mostly emerged in the 20th century.Between 1992 and 1995, Serb troops systematically raped at least 20,000 girls and women, according to the European Commission, which in a 1996 report detailed that “impregnated girls have been forced to bear ‘the enemy’s’ child,” thus exposing them to lifelong psychological scars.“Sexual violation of women erodes the fabric of a community in a way that few weapons can,” the United Nations’ State of the World’s Children concluded the same year.By 2008, U.N. member states had acknowledged in a landmark resolution that sexual violence in conflict had “become systematic and widespread, reaching appalling levels of brutality."Last year, Burmese troops systematically raped Rohingya women, which Human Rights Watch said was part of a campaign to spread fear and terror.Amid that context, any attempt to water down a resolution to address this situation — for whatever reason — would be exposed to harsh criticism. In Britain, the fury of allies stunned by the U.S. stance turned against President Trump himself on Tuesday.“It beggars belief that on the very same day Donald Trump is threatening to veto a United Nations resolution against the use of rape as a weapon of war, Theresa May is pressing ahead with her plans to honor him with a state visit to the U.K.,” said Emily Thornberry, a member of Parliament and shadow foreign minister with the opposition Labour Party.The U.S. role in diluting Tuesday’s resolution is now likely to feature prominently on posters and in anti-Trump slogans during the mass protests expected against Trump during his London visit in June.
President Trump’s indignation that special counsel Robert S. Mueller III was investigating him has now been wholly redirected at Congress.House Democrats have launched a half-dozen investigations into the president that range from digging into his business practices, to trying to acquire and possibly publicize his tax records, to considering whether he broke the law by obstructing the Mueller probe into Russian interference in the 2016 election. (I rank which ones are most potentially damaging to Trump.)Trump is systematically trying to block and undercut each one of those investigations, forcing Congress to up the ante to try to get what they need.All these standoffs are unusual, but they get at the heart of the definition of American democracy: one branch’s ability to check the other. Here are four battles to watch, ranked from the ones he’s most likely to lose to most likely to win.1. Getting details into Trump’s finances: On Monday, Trump sued a member of Congress and Trump’s own accounting firm to try to prevent that firm from handing over a decade’s worth of his financial statements. A House oversight committee is investigating whether Trump inflated his assets or deflated them to get loans or avoid real estate taxes — which could constitute possible bank fraud.How this could escalate even more: The accounting firm is willing to hand over the documents, and many legal experts agree Trump’s lawsuit to try to stop it is a legal Hail Mary. But could the ensuing court fight take so long that Trump or key members of Congress are out of office by the time it is settled? House Oversight Chairman Elijah E. Cummings (D-Md.) has already had to postpone his subpoena to Mazars accounting firm while he waits for a court to hear the lawsuit next month.2. Talking to Trump’s former White House counsel: The House committee that could launch impeachment proceedings wants to talk to one of the key players in the Mueller investigation, former White House counsel Donald McGahn. McGahn testified to Mueller that Trump tried to fire the special counsel, then told McGahn to lie about it.How this could escalate: Trump is considering telling McGahn not to testify by exerting executive privilege over those conversations. But McGahn is the former White House counsel; he does not work for the White House anymore. Also, some legal experts have argued that Trump lost his ability to exert executive privilege the day he decided not to use it when McGahn (and other aides) testified to Mueller.3. Getting Trump’s tax records: Treasury Secretary Steven Mnuchin said he will decide by May 6 whether to let the IRS hand over Trump’s tax records to the House Ways and Means Committee, which is looking at how the IRS audits presidents. Trump has refused to publicize his tax returns, as other presidents have.How this could escalate: This is likely to turn into a court fight over the meaning of the law that says the IRS “shall” turn over tax records to Congress. Chairman Richard E. Neal (D-Mass.) thinks he is on solid footing here because the law is a century old. Congress could also vote to hold Mnuchin in contempt and even try to put him in jail.4. Understanding Trump’s security clearance process: The same House oversight committee looking into Trump’s finances is investigating whether the White House gave top-secret security clearances to people who may have had drug, criminal or financial problems. This investigation has the potential to catch Trump in a lie about whether he overrode security clearance experts to give his son-in-law Jared Kushner access to the nation’s biggest secrets.How this could escalate: Congress is working with a whistle blower and wants to talk to her former boss at the White House, Carl Kline. It subpoenaed Kline, but the White House told him to ignore the subpoena. Kline has indicated he will listen to Trump. Next, Congress could vote to hold Kline in contempt, which could eventually lead to daily fines or the threat of jail time until he agrees to talk to lawmakers.
LONDON — Remember the giant orange diaper-wearing baby blimp? It’s expected to take to the skies once again in June — only this time it could be even bigger.Ahead of President Trump’s controversial state visit to Britain, protesters have vowed to make their feelings known once again by launching the inflatable. For thousands, the balloon is so much more than a comedy stunt — it carries a clear message that the president of the United States is not welcome here.“The Trump baby will definitely fly again,” organizer Leo Murray told the Guardian.“We have been toying with the idea of a Trump baby hot air balloon, which would be about five times the size. But would cost a huge amount of money — upwards of £70,000,” or about $91,000.The announcement of Trump’s three-day visit, which is scheduled to begin June 3, has sparked a fierce debate among politicians and residents across Britain. On Facebook, thousands have said they will attend a “Together Against Trump — Stop the State Visit” rally, planned for June 4.Shadow Foreign Secretary Emily Thornberry was one of many who questioned Trump’s invitation.“It beggars belief that on the very same day Donald Trump is threatening to veto a UN resolution against the use of rape as a weapon of war, Theresa May is pressing ahead with her plans to honour him with a State Visit to the UK,” she said in a statement.“This is a President who has systematically assaulted all the shared values that unite our two countries, and unless Theresa May is finally going to stand up to him and object to that behaviour, she has no business wasting taxpayers’ money on all the pomp, ceremony and policing costs that will come with this visit.”Labour lawmaker David Lammy, meanwhile, described Trump in a tweet as “deluded, dishonest xenophobic, narcissistic,” and accused May of “selling out the UK to a serial liar and a cheat.”Fellow Labour member Clive Lewis urged organizers to “dust off the blimp,” while Stephen Doughty, a Welsh Labour member of Parliament, called the planned state visit “bonkers.”Trump’s 2018 visit was downgraded from a state visit to a working visit by May. Working visits are generally more low-key — although the visit still caused widespread protests. During his first trip to Britain as president, Trump was strategically kept away from London, the capital, where thousands of protesters marched and sang in the streets. At the time, posters that read “Trump is a waste man” — British street slang to show disdain — were spotted on bus shelters and billboards across the city.This time around, however, Trump will receive a full state visit with all the bells and whistles. He can expect to meet Queen Elizabeth II again, and she probably will hold a banquet for him and the first lady.Trump remains a controversial figure in Britain and has frequently been accused of damaging the close relationship between the two nations. The president has retweeted messages from the far-right extremist group Britain First and has become embroiled in a protracted feud with London Mayor Sadiq Khan — who gave permission for the blimp to fly last summer.On his last trip, Trump stunned Britons when he eclipsed the queen by walking in front of her at Windsor Castle. Many were alarmed to see the monarch, who was 92 at the time, disappearing behind him during their walk. Trump also was accused of keeping the queen waiting after footage of her checking her watch circulated widely on Twitter.Trump later denied the allegation that he was late, claiming at a rally in Pennsylvania that he was actually early.
“THERE IS no reason to go any further, and especially in Congress,” President Trump told Post reporters Tuesday, explaining why he was preparing to stonewall congressional requests for administration documents and testimony, possibly by invoking executive privilege. “We’re fighting all the subpoenas,” Trump said on Wednesday. “These aren’t like impartial people.”If that were the standard, then Congress could never investigate anything. Mr. Trump’s Republican colleagues must remember the battles they fought with President Barack Obama over transparency only a few years ago when they ran the House. Mr. Obama asserted executive privilege to prevent then-Attorney General Eric H. Holder Jr. from turning over documents on the “Fast and Furious” gun-running scheme. Republicans held Mr. Holder in contempt of Congress.As we said at the time, “No doubt a lot of congressional investigations are partisan fishing expeditions. For better or worse, that comes with the democratic territory. Absent very strong countervailing considerations — stronger than some of those the administration has asserted in this case — Congress is generally entitled to disclosure.” Democrats, too, are entitled to disclosure, particularly as they ask weighty questions about the potentially severe abuse of power in the top reaches of the White House.Mr. Trump’s own words reveal that he is motivated not by any specific concern about protecting presidential decision-making or some other crucial executive-branch function — but by concealing anything that might land him in political jeopardy. Courts have said little on the limits of executive privilege, but judges have been skeptical that the president has a generalized interest in secrecy that outweighs legitimate investigative inquiries. Given Mr. Trump himself admits that much of the information his aides might disclose has already been revealed in special counsel Robert S. Mueller III’s investigation, the president appears mostly interested in avoiding a public spectacle. That is not the purpose of executive privilege.Even so, administration officials say they will fight a congressional subpoena of former White House counsel Donald McGahn, whose testimony to Mr. Mueller proved damning for the president in the special counsel’s report. Mr. McGahn insisted that Mr. Trump told him to fire Mr. Mueller. The former White House counsel also said the president told him to deny that the episode ever occurred after reporters publicized that Mr. Trump had tried to meddle in an investigation into his own possible obstruction of justice. This episode could easily form the basis of an impeachment inquiry; it is well within the House Judiciary Committee’s right to insist on conducting its own follow-up questioning after the Mueller report’s release.The story is similar on the House Oversight Committee’s desire to question a White House official involved in issuing security clearances, allegedly to people who should not have them. It is in the public’s interest for lawmakers to determine whether administration officials cut corners to hand out security clearances, possibly endangering national security.In the past, the executive branch and Congress generally struck deals to avoid direct confrontations on executive secrecy. But Mr. Trump seems unlikely to ditch his pugnacious attitude. If and when courts consider the situation, they will find a president unreasonably hostile to Congress’s legitimate interest in gathering information.
President Donald Trump has often seemed to conflate himself with the government, and his own interests with the nation’s.At times, the results are merely ridiculous. At others, they are actively dangerous. At the moment, Trump is declining to protect the United States from foreign interference in its elections, because it’s politically inconvenient and personally irritating to him.Despite repeated evidence of Russian attempts to interfere in American elections—most recently detailed in Special Counsel Robert Mueller’s report, released last week—the White House continues to refuse to take action, because the president can’t separate the nation’s security from questions about the legitimacy of his victory in the 2016 election. Wednesday’s New York Times offers disturbing new details:In a meeting this year, Mick Mulvaney, the White House chief of staff, made it clear that Mr. Trump still equated any public discussion of malign Russian election activity with questions about the legitimacy of his victory. According to one senior administration official, Mr. Mulvaney said it “wasn’t a great subject and should be kept below his level.”(Mulvaney says he does not recall ever making such a statement.)It’s good to read news stories critically, and the Times story is heavily sourced to people who seem interested in rehabilitating the image of Kirstjen Nielsen, who was pushed out as secretary of homeland security earlier this month. Nielsen has been tarred by her association with Trump’s hard-line immigration policies, which she defended aggressively, often with blatant falsehoods, and some of the leaks seem geared at portraying her as standing up for issues that the president would not.Nielsen’s career choices speak for themselves, and one need not accept apologies on her behalf to accept the story, which fits into a long pattern for the president. He has repeatedly questioned whether Russia was really behind intrusions into the 2016 election, most prominently at the disastrous Helsinki conference with Russian President Vladimir Putin. He still hasn’t condemned Russia. The U.S. shows little sign of taking action to prevent future foreign interference.Trump isn’t necessarily wrong to believe that talk of Russian interference delegitimizes his win. Extensive documentary evidence shows that the Russian government hoped for a Trump win and took action to effect it. Determining whether those actions actually changed the outcome is probably impossible. As Trump has noted, there’s no evidence that vote tallies themselves were changed. But as Trump also likes to boast, the election is over. These questions may be politically and personally hurtful to the president, but they’re history, and the 2020 election looms—with the U.S. apparently little better prepared than it was in 2016.Officials below the president insist that they are focused on the threat from Russia. “I don’t think there’s been a discussion between a senior U.S. official and Russians in this administration where we have not raised this issue about our concern about Russia’s interference in our elections,” Secretary of State Mike Pompeo said Friday. In August 2018, shortly after the Helsinki summit, American intelligence officials presented a unified argument that Russia had interfered, and that the United States needed to do more to harden its defenses.But Trump stands apart. His silence isn’t just a matter of messaging. It has policy effects as well. Trump has treated the Department of Homeland Security, which has wide-ranging and essential duties, as effectively just an immigration-and-border agency. According to the Times, this was a particular source of frustration for Nielsen, whose background is in cybersecurity. In May 2018, National Security Adviser John Bolton eliminated the job of the White House’s top cybersecurity adviser. According to former Defense Secretary James Mattis, Russia once again meddled in the midterm elections six months later. Trump also bristled at the intelligence chiefs’ comments on Russia, and reportedly sought to push out Director of National Intelligence Dan Coats in retaliation.According to the Times, Nielsen convened meetings of Cabinet officials when the White House refused to do so, but those efforts ultimately foundered on the shoals of presidential antipathy as well: “One senior official described homeland security officials as adamant that the United States government needed to significantly step up its efforts to urge the American public and companies to block foreign influence campaigns. But the department was stymied by the White House’s refusal to discuss it, the official said.”Moreover, messaging is policy and presidential attention matters—a reality that Trump understands perhaps better than most presidents. Consider the border, where Trump has focused a great deal of his attention throughout his presidency. By doing so, he has managed to elevate long-simmering questions around immigration to a central national issue. He has sent troops to the Mexican border, called up the National Guard, declared a national emergency, tried to reallocate funds to build his wall, and made numerous visits to the border.Trump explained why in his January Oval Office address on immigration. “This is about whether we fulfill our sacred duty to the American citizens we serve,” he said. “When I took the oath of office, I swore to protect our country. And that is what I will always do, so help me God.” (In fact, Trump swore to “preserve, protect and defend the Constitution of the United States.”)But Trump sees tough border policy as a political winner. He sees Russian interference, meanwhile, as a political loser—and challenging it as a personal affront. Suddenly, he’s not so interested in his “sacred duty” to protect the country.
If former vice president Joe Biden’s goal with the video launching his presidential campaign was to knock President Trump off his message, it worked — to a degree.The centerpiece of the video is the events that took place in Charlottesville in August 2017. Days of tension and hours of violence erupted as a heavily white-nationalist and neo-Nazi crowd held a rally to defend a statue of the Confederate general Robert E. Lee. A young woman counterprotesting those groups was struck and killed by a car driven by an avowed neo-Nazi.Biden’s video focuses on Trump’s response to that tragedy. Trump supporters were quick to claim that Biden’s presentation of what Trump said was unfair, but as The Washington Post’s Aaron Blake explained, it isn’t.On Friday morning, while on his way to Indianapolis for an event associated with the National Rifle Association, Trump addressed it again. He was asked whether he still thought there were “very fine people on both sides,” as he said at the time.“Oh, I’ve answered that question,” Trump replied. “And if you look at what I said, you will see that that question was answered perfectly. I was talking about people that went because they felt very strongly about the monument to Robert E. Lee, a great general. Whether you like it or not, he was one of the great generals.”Trump claimed that he had spoken with many generals at the White House who said that Lee was perhaps their favorite general.This is a bit surprising, because Lee’s most notable service was as a military enemy of the United States. When his home state of Virginia seceded from the United States, Lee went into service on behalf of the new Confederate States of America.Few people are as directly responsible for as many American deaths as Lee. An estimated 110,000 U.S. troops were killed in action during the war, with the total death toll (including deaths in prison camps and from disease) estimated at 360,000, including more than 50,000 from Trump’s home state of New York.Every time Lee won a battle, Americans died. He was a traitor, in the most direct sense of the word.For Trump, though, Lee is a useful symbol. Trump’s embrace of the general means taking a stand in a cultural fight over the legacy of the Confederacy and the self-image of Southern states. Closer to the fringes, Trump’s repeated return to the subject sends a message about the acceptability of racially questionable views and white pride. There’s some precedent for this. Schools were named after Lee and other Confederate generals not at the end of the Civil War but largely during the civil rights era as a way of expressing opposition to school integration and expanded rights for black Americans.Reducing a rally with prominent, proud swastikas to a defense of U.S. history is a way of glossing over those swastikas, as effectively as claiming that the group included some “very fine people.” Trump does it because he recognizes that some of those in his base support the goal of the rally.After making his comment about Lee, Trump flew to Indiana and began speaking to the NRA crowd. He again raised the subject of attempts to overthrow the government — but this time, the government was his own.“We are taking power out of Washington, D.C., and returning it to the American people, where it belongs,” Trump said. Coincidentally, this argument for giving federal power to the states was itself a feature of both the tension that led to the Civil War and of opposition to the civil rights movement.Trump then referred to the FBI’s investigation into whether his campaign had coordinated with Russia’s effort to interfere in the 2016 election. Since Trump took office, a number of senior FBI officials involved in that probe have been fired or have resigned.“And you see it now better than ever, with all of the resignations of bad apples — they’re bad apples! They tried for a coup. Didn’t work out so well. And I didn’t need a gun for that one, did I?” he said. “All was taking place at the highest levels in Washington, D.C. You’ve been watching, you’ve been seeing, you’ve been looking at things that you wouldn’t have believed possible in our country. Corruption at the highest level. A disgrace. Spying. Surveillance. Trying for an overthrow. And we caught 'em. We caught 'em.”In recent weeks, largely since special counsel Robert S. Mueller III concluded his investigation into possible coordination, Trump has increasingly referred to the genesis of the investigation as a “coup” or as “treason.” He did so in an interview with Fox News’s Sean Hannity on Thursday night. The argument flows from a loosely constructed alternative theory of how the investigation began that’s popular in conservative media. In it, anti-Trump FBI employees began investigating his campaign solely to undercut his chance of winning the race or, after he did win, to undermine his presidency.This line of argument is flawed in a wide variety of ways, but for Trump, it’s advantageous: Not only did the investigation exonerate him (which it didn’t entirely), but also, he claims, the real crimes were committed by the investigators. Those FBI agents who started a probe after being tipped off by a foreign diplomat that a Trump campaign adviser had been given a heads-up on material stolen by Russia? They were traitors who wanted to overthrow the government.In the case of Lee, it’s politically useful to fend off revisionist efforts to point out that the Confederate general was a Confederate general and a slave owner. In the case of the FBI, it’s politically useful to suggest that those who were trying to determine the extent to which members of his campaign may have been working with a hostile foreign power were themselves traitors to the United States.Trump embraced a traitor who fought the U.S. government and equated members of the U.S. government with traitors.
President Trump renewed his vow Friday to repeal the Affordable Care Act, seemingly putting him at odds with a top Republican senator who insisted that Congress will not scrap President Barack Obama’s signature health-care law.Appearing at a conference of the National Rifle Association in Indianapolis, Trump touted Republicans’ success in eliminating the individual mandate, which he called “the absolute worst part of Obamacare.”“Now we’re going for the rest,” Trump said, before once again blaming the late senator John McCain (R-Ariz) for his party’s failure to repeal the entire law last year.It was unclear if Trump was referring to his administration’s involvement in an ongoing lawsuit aiming to declare the ACA unconstitutional or if he was pushing for congressional action before the 2020 elections.During a meeting with constituents, Sen. Charles E. Grassley (R-Iowa) said he did not think the courts would declare the 2010 law unconstitutional nor would lawmakers try to repeal it.“The Affordable Care Act is the law of the land, and it’s not going to be repealed by Congress,” Grassley told a woman who pressed him about the law’s coverage for those with preexisting medical conditions and shared the exchange via YouTube.She pointed out that Grassley voted seven times to repeal the law, which he acknowledged.“The last time we voted for repeal was when McCain voted the other way, and there’s no chance of repealing it now. So what are you worried about?” Grassley asked.The seven-term senator is chairman of the Finance Committee, which would be responsible for drafting a replacement for the law if it were declared unconstitutional or repealed.Republican leaders, including Senate Majority Leader Mitch McConnell (R-Ky.) strongly counseled against that path several weeks ago, arguing it would be politically perilous for the party to seek the repeal of a largely popular health-care law with no viable replacement.Trump had fellow Republicans off guard by his rapid shift to an issue that helped elect Democrats in last year’s midterm elections. In late March, Trump directed the Justice Department to intervene in a federal-court case seeking to eliminate the ACA in its entirety and promised a more affordable replacement plan.While Trump agreed earlier this month not to push for a comprehensive heath-care bill before next year’s elections, he said he still plans to run on the issue and that his campaign would present a plan to voters.Trump has repeatedly focused his ire on McCain for voting against a Republican plan to repeal the ACA that the senator said had not been carefully enough considered.“And we had it done except for one vote,” Trump told the crowd Friday. “You know what I’m talking about. One vote.”The repeal of the individual mandate, which required people to buy insurance or pay a penalty, came in the Republican tax bill passed and signed into law in late 2017.His remarks Friday came amid a wide-ranging address in which he not only promised to keep championing the Second Amendment, but also continued to air grievances about the special counsel’s probe into Russian interference in the 2016 election and castigate Democrats for continuing to investigate him and his administration.Trump said the probe of possible coordination between Russia and his 2016 campaign was the result of “corruption at the highest level” in Washington.“They tried for a coup,” he said. “It didn’t work out so well. And I didn’t need a gun for that one, did I?”Trump said Democrats were angry because “their collusion delusion has been exposed to the world as a complete and total fraud.”The recently released report of special counsel Robert S. Mueller III concluded that the Russian government interfered in the 2016 presidential election “in sweeping and systematic fashion.”The report did not find sufficient evidence to bring charges of criminal conspiracy with Russia against Trump or anyone associated with his campaign.It did not offer a conclusion on whether Trump obstructed justice. Attorney General William P. Barr later concluded that there was not sufficient evidence for obstruction of justice, but House Democrats are continuing to aggressively pursue that issue.During his remarks Friday, Trump criticized Democrats for conducting oversight of his administration rather than working with him on issues such as rebuilding the nation’s infrastructure and “fixing” trade deals.“Democrats are obsessed with hoaxes, delusions and witch hunts,” Trump said.Several NRA members voiced their unequivocal support for the president, welcomed his support for gun rights and said nothing in the Mueller report dampened their enthusiasm for Trump.“He’s talking to his people here,” said Jon Lucas, 49, of Monmouth, N.J., who voted for Trump and called him “a very aggressive president. He’s going to push up to the line.”Asked about the Mueller report’s finding that Trump tried to have the special counsel fired, Lucas said Trump listened to the advice of his counsel and did not do that. “Just because he asked, doesn’t make him a bad guy.”Part of the reason Barbara Castro, 53, of Palos Park, Ill., attended her first NRA convention was to hear Trump. “This was my president. It’s so important that he’s here,” she said.Dana Rawlings, of Maryville, Tenn., said she appreciated Trump’s frequent references to the Second Amendment and to protecting gun rights, but also his and Vice President Pence’s mention of Christianity. “I am very Baptist and religious,” she said.Rawlings recognized Trump is “unconventional” and she doesn’t agree with him about everything, but she said his views are quite similar to hers on gun rights and abortion, among other issues.Another Trump supporter, Bobby Meek, a maintenance supervisor from Indiana, praised Trump because he’s “down-to-earth” and he’s a businessman trying to run the country like a business. “He’s fought against the establishment the entire time he’s been in office,” said Meek. “He knows how to play hardball, too.”However, one NRA member, Lynn Nevin, 59, from Michigan, said she does not support Trump, criticizing his comments about women and arguing that he lacks transparency when it comes to his finances and taxes.Nevin, who said she will be actively campaigning against Trump and voting for a Democrat for president, said she didn’t object to the NRA inviting Trump to speak. But she doesn’t like the pandering of politicians to the NRA and the organization getting more and more in line with a specific party.She managed, though, to give Trump lukewarm praise for his speech. “He seems to be speaking in complete sentences and hasn’t gone too far off the rail,” Nevin said.
The federal government has six months to identify potentially thousands of children who were separated from their families at the US-Mexico border early in Donald Trump’s term, a judge said on Thursday.Trump administration officials said they had a goal of six months but opposed any deadline, saying it could take as long as two years to reunite children with their parents if efforts to speed up the process fail.The US district judge Dana Sabraw said he would be willing to consider an extension past 25 October but that he wanted to establish a firm date.“I am going to issue an order to do this in six months, subject to good cause,” Sabraw said. “It is important for all government actors to have a timeframe, a deadline.”The administration will review about 47,000 cases of unaccompanied children in custody between 1 July 2017 and 25 June 2018 – the day before Sabraw halted the general practice of separating families and ordered that children under government care at the time be reunited in 30 days.More than 2,700 children had been separated when Sabraw issued his June order and they have largely been reunited. Then, in January, the internal watchdog for the US health and human services department (HHS) reported that thousands more children may have been split since summer 2017. The department’s inspector general said the precise number was unknown.Jonathan White, a commander of the US public health service and the HHS’s point person on family reunification, testified for about an hour on how he would oversee the effort. After he spoke, the judge praised his continued involvement, calling him “a beacon of light”.The administration will develop a statistical model within 12 weeks to search for factors most likely for separations. Those factors, detailed in an earlier court filing, include children under five, younger children traveling without a sibling and those detained in the border patrol’s El Paso, Texas, sector, where the administration ran a trial program that involved separating nearly 300 family members from July to November 2017.On a parallel track, the administration will begin work immediately on identifying children who were separated after US customs and border protection introduced a tracking system in April 2018.The government lacked tracking systems when the administration began a “zero-tolerance” policy a year ago to criminally prosecute every adult who entered the country illegally from Mexico, sparking an international outcry when parents couldn’t find their children.Poor tracking before April 2018 and the fact that still-separated children are no longer in US custody complicates the latest task.The vast majority of separated children are released to relatives, but many are not parents. Of children released in the 2017 fiscal year, 49% went to parents, 41% to close relatives such as an aunt, uncle, grandparent or adult sibling and 10% to distant relatives, family friends and others.White told the judge that six months was his “operational target” but that he had been wrong before and there were still lots of unknowns about the process.The American Civil Liberties Union, which sued over family separations, wanted the job done in three months, which White said was unrealistic. The ACLU agreed on Thursday to six months.“This order shows that the court continues to recognize the gravity of this situation,” the ACLU attorney Lee Gelernt said after the hearing.
When Donald Trump perceives an attack, he hits back, and his weapon of choice has long been the courts. He threatens legal action himself and through his lawyers, in private missives and in public blasts. Sometimes, he actually files suit.Now, with an energized Democratic House majority mounting an array of investigations and talking impeachment in the wake of the special counsel’s report on Russian interference in the 2016 election, the president is vowing to “head to the U.S. Supreme Court.”Never mind that the high court plays no role in impeachment, which the Founders designed as a faceoff between the executive and legislative branches. In politics, as in business, marriage and nearly every aspect of a career spanning five decades, Trump uses the courts and threats of legal action for self-defense and to punish those who seek to alter the image he has crafted for himself.This week, Trump’s private attorneys filed suit against the House Oversight Committee and Trump’s own accounting firm after the panel subpoenaed his financial records. The Justice Department announced that Attorney General William P. Barr instructed one of its top officials to ignore a subpoenaed deposition. And the president tweeted that “If the partisan Dems ever tried to Impeach, I would first head to the U.S. Supreme Court.”Rep. Gerald E. Connolly (D-Va.), a member of the Oversight Committee, accused the president of “triggering a constitutional crisis.” Of course, battles between Congress and presidents have wound up in court before, notably in the final stages of the confrontation between lawmakers and President Richard Nixon. And presidents have often spoken of the Supreme Court in decidedly political terms; Franklin Roosevelt even sought to expand the court’s roster to pack it with ideologically like-minded justices.But Trump is unlike any predecessor in his lifelong dependence on the court system as a rhetorical club to wield over his enemies, a tool of public persuasion and a tactical weapon of delay and distraction. From his meteoric rise in the Manhattan real estate development business through his string of bankruptcies in the casino hotel business, Trump has turned to the courts more than any other future president, having been involved in more than 4,000 lawsuits himself and through his businesses, according to a database assembled by USA Today.In most cases, his goal has not necessarily been to win, but rather to use the notion of a court battle to diminish or destroy an opponent. From early on in his lifelong pursuit of fame, fortune and power, Trump has joined “I’ll sue” with brash rhetoric, a constant media presence and an infinite capacity for starting over.As president, however, Trump seems taken with the idea that the judges he has appointed will not only guarantee legal victory but will be the ultimate safeguard of his actions and policies.From the start of his 2016 campaign, Trump made clear that he saw the courts not as an independent branch of government, but as one more weapon in a president’s arsenal. “We’re going to have great judges, conservative, all picked by the Federalist Society,” he told Breitbart News in June 2016. “If it’s my judges, you know how they’re gonna decide,” Trump told an evangelical Christian audience a week later, answering a question about Second Amendment gun rights.The coming months will test that notion against the historic role of the judiciary, particularly the Supreme Court.“The Supreme Court plays no role in impeachment, and there’s virtually no way the court would take up any challenge to an impeachment,” said Peter Irons, a constitutional lawyer and political scientist at the University of California at San Diego, who has written a history of the high court. “More important, they are the institution that stands apart from partisan politics. If we come to think of the court as simply five Republicans and four Democrats, then that bulwark is really broken.”Trump was encouraged to use the courts as a weapon by his early mentor, New York attorney Roy Cohn. He recognized from the start of his career that the mere threat of a lawsuit enabled him to respond to crises with delay, distraction and deflection.Most often, his threats to take opponents to court are just that — words intended to intimidate or silence an enemy, rather than a precursor to any actual filing of a lawsuit.In 2004, when a writer named Robert Slater was researching a book about him, Trump had his attorney write a letter announcing that a suit would be filed if the author published a book without Trump’s approval.Ultimately, there was no lawsuit. After the threat, Trump called Slater, told him he’d heard the writer was “an amazing guy,” and offered to cooperate. If he liked the book, he said, he’d even buy a load of copies. The publisher agreed to let Trump see the book ahead of its release, and Trump was even allowed to remove material he didn’t like.Sometimes, he sued for publicity. In 1984, he filed a $500 million defamation suit against a Chicago Tribune critic who called Trump Tower’s lobby “a kitschy shopping atrium of blinding flamboyance.” A judge dismissed the case, but Trump got a load of media attention from it.Other times, he sued as personal punishment. In 2006, he filed a libel suit against Tim O’Brien, the author of a biography that concluded Trump’s net worth was not the $6 billion he claimed, but rather “somewhere between $150 million and $250 million.”The suit was dismissed, but only after three expensive years of proceedings.Trump told The Washington Post that suing O’Brien was worthwhile even though he’d always known that, as a public figure, he was highly unlikely to win a libel judgment. “I liked it because I cost him a lot of time and a lot of energy and a lot of money,” Trump said. “I said, ‘Go sue him, it will cost him a lot of money.’ ”Sometimes, Trump would talk lawsuit just for the heck of it. “Watch [John] Kasich squirm,” Trump tweeted about the Ohio governor, one of his opponents in the 2016 GOP primaries. “If he is not truthful in his negative ads, I will sue him just for fun!”In the end, Irons, the constitutional lawyer, said Trump “almost always backs down from his threats to sue. For example, all the women who accused him of sexual misconduct during the campaign: He threatened to sue them and, of course, he never did.”Even as president, Trump has not shied away from turning to the courts. Less than a month after the inauguration, first lady Melania Trump filed suit in New York against the Daily Mail, the London-based news organization that had published allegations that she once worked as an “elite escort.”The lawsuit sought compensation for the “harm done to her, her commercial brand and her business opportunities.” Two months later, the Mail settled the case, apologizing to the first lady and paying a reported $2.9 million in damages.As quick as Trump is to talk lawsuit, some of those who have represented him contend that he does not reflexively head to the courthouse. Rather, they say, he thinks of the courts as one tool in a quiver of weapons available to confront opponents.“I was with him 20 years in his two matrimonials and he never once went to court,” said Jay Goldberg, a New York attorney who handled Trump’s two divorces. Goldberg said Trump often “wanted to go to court, but I persuaded him it wasn’t in his best interests and he resolved the issues through other means.”Goldberg has quoted Trump’s frequent admonition to his lawyers: “Don’t tell me it can’t be done. Your job is to tell me how it can be done.”Although some of Trump’s lawyers have come to view him as impulsive and easily angered by the court system’s long delays and emphasis on process, others say he is a savvy legal consumer who understands how to use the courts to his advantage.Sometimes that’s a simple matter of filing repeated motions to stretch out a lawsuit and make an opponent spend more on attorneys’ fees. And sometimes it involves more overtly aggressive moves, such as when Trump used his campaign rallies to bash a federal judge, Gonzalo Curiel, who was presiding over a case against Trump University.“I have a judge who is a hater of Donald Trump, a hater,” candidate Trump said at one rally. “The judge, who happens to be, we believe, Mexican, which is great — I think that’s fine.”As president, Trump has found that his old tactic of threatening lawsuits continues to win lots of attention. Since taking office, he has threatened to sue — among others — the New York Times and The Post, the publisher of a critical book and former political adviser Stephen K. Bannon.None of those suits, however, has come to pass.
Rod J. Rosenstein, again, was in danger of losing his job. The New York Times had just reported that — in the heated days after James B. Comey was fired as FBI director — the deputy attorney general had suggested wearing a wire to surreptitiously record President Trump. Now Trump, traveling in New York, was on the phone, eager for an explanation.Rosenstein — who, by one account, had gotten teary-eyed just before the call in a meeting with Trump’s chief of staff — sought to defuse the volatile situation and assure the president he was on his team, according to people familiar with matter. He criticized the Times report, published in late September, and blamed it on former deputy FBI director Andrew McCabe, whose recollections formed its basis. Then he talked about special counsel Robert S. Mueller III’s investigation of Russia’s interference in the 2016 election and told the president he would make sure Trump was treated fairly, people familiar with the conversation said.“I give the investigation credibility,” Rosenstein said, according to an administration official with knowledge of what was said during the call. “I can land the plane.”[Rosenstein-McCabe feud dates back to angry standoff in front of Mueller]The episode illustrates the political tightrope Rosenstein has had to walk in his two years as the Justice Department’s second-in-command. To keep his job, the deputy attorney general has worked to mollify an often angry Trump, while at the same time protecting the special counsel’s investigation of the president and his campaign. Rosenstein’s actions have come under renewed scrutiny, as he has played a key role in releasing Mueller’s findings in a way even some of his supporters say has been overly favorable to Trump.In a statement for this article, Rosenstein said: “The only commitment I made to President Trump about the Russia investigation is the same commitment I made to the Congress: so long as I was in charge, it would be conducted appropriately and as expeditiously as possible. Everyone who actually participated in the investigation knows that.”He added: “My relationship with the President is not one-dimensional. The Russia investigation represents only a fraction of my work and the work of the Department of Justice. I talk with the President at every opportunity about the great progress we have made and are making at the Department of Justice in achieving the Administration’s law enforcement priorities and protecting American citizens.”A person familiar with Rosenstein’s account said the deputy attorney general disputes that he was teary-eyed in the meeting before the call with Trump. “He was reacting appropriately given the circumstances, which was a discussion about his forced resignation,” the person said.But Rosenstein — whose representatives were approached for comment for this report earlier in the week — acknowledged in a combative speech Thursday night in New York that there were times during his tenure as deputy attorney general that he grew upset.“One silly question that I get from reporters is, ‘Is it true that you got angry and emotional a few times over the past few years?’ Heck yes! Didn’t you?” Rosenstein said, deviating from his prepared script.Trump ended the call with Rosenstein thinking he was “on the team after all,” one senior administration official said, adding that the president has been further swayed by Rosenstein’s deference in meetings and other settings.On multiple occasions, according to people familiar with the matter, Rosenstein told Trump he was not a “target” of Mueller’s investigation — using law enforcement jargon that can refer to people about whom the Justice Department has gathered substantial evidence of criminal wrongdoing. Mueller’s report makes clear that investigators focused on Trump; his attorneys were informed he was a “subject,” a different bureaucratic term meaning his conduct was being investigated. And Mueller’s report details conduct that legal observers have said could constitute obstruction of justice.Rosenstein also told the president more than once that he agreed Trump was being treated unfairly — though one person familiar with the matter said Rosenstein was probably referring to media coverage rather than the investigation itself. That person, like others in this story, spoke on the condition of anonymity to discuss sensitive internal government deliberations.In his speech Thursday, Rosenstein launched a blistering attack on the media, an offensive likely to hearten Trump.“Some of the nonsense that passes for breaking news today would not be worth the paper it was printed on, if anybody bothered to print it,” he said.He also criticized the Obama administration for not publicizing the “full story” about Russian hacking and social media influence operations and cited a quote from Trump to make a point about the rule of law.My job is to stand here'Rosenstein, who appointed Mueller as special counsel after Comey’s firing, is no stranger to political blows — from the right, from the left and from the man who nominated him for the job. At the end of Mueller’s probe, though, Rosenstein might have been able to avoid some punches, since the ultimate decisions would be up to Attorney General William P. Barr.Instead, he leaned in.In rare public comments in recent weeks, Rosenstein has lauded Barr to Time magazine and derided as “bizarre” allegations that Barr was trying to mislead the public about Mueller’s work by glossing over the most serious findings about Trump’s behavior, as Democrats have argued.Rosenstein stood behind the attorney general when Barr held a news conference to assert that the president had not colluded with Russia and that there was not a prosecutable case against Trump for obstruction of justice. The deputy attorney general’s unmoving gaze sparked speculation that he felt uncomfortable with what was happening; Barr, after all, was going further than Mueller had and repeatedly uttered one of the president’s preferred expressions — “no collusion.”But Barr had written in a letter to lawmakers that he and Rosenstein had decided together there was not a prosecutable obstruction case, and a Justice Department official noted Rosenstein stepped away from a family vacation in Florida to be at the news conference. He flew back to Florida later that day, the official said.Rosenstein said in his speech Thursday: “Last week, the big topic of discussion was, ‘What were you thinking when you stood behind Bill Barr at that press conference, with a deadpan expression?’ The answer is I was thinking, ‘My job is to stand here with a deadpan expression.’ ”“Can you imagine if I did anything other than stand there at the press conference?” he added. “Imagine the reaction and the commentary if I had smiled or grimaced.”Defenders of the special counsel’s probe had long viewed Rosenstein as one of the last bastions guarding the investigation. But Barr’s comments, in their view, misrepresented Mueller’s full report and seemed designed to protect the president. And Rosenstein was at least willing to go along with them.Former U.S. attorney Barbara McQuade, who served with Rosenstein when he was a U.S. attorney in the Obama administration, said she considered Rosenstein “honorable.” But she said she was mystified that he would sign on to Barr’s decision that there was not a prosecutable obstruction case against Trump when Mueller pointedly would not say that.“His name is included in the letter, and he stood by his side at the press conference, so somehow he got on board with that decision,” McQuade said. “It seems really strange to me.”Others were more critical.“I think Rod’s intentions were largely in the right place, but he was weak too many times when the country needed him to be strong,” said Matthew Miller, a Justice Department spokesman during the Obama administration. “He didn’t have to allow the attorney general to use his name in his letter and the press conference, but he has too often been willing to sacrifice his reputation to please people above him.”A person close to Rosenstein said the deputy attorney general — in his dealings with Trump and others — sought to protect the investigation.I don't want to go out with a tweet'Rosenstein’s status in the eyes of the White House has been fluid, but it was perhaps never more tenuous than after the New York Times reported he had suggested wearing a wire to record Trump.After the article was published, then-White House Chief of Staff John F. Kelly summoned Rosenstein to discuss it. The deputy attorney general would not address specific details of the article but told Kelly he was willing to step aside, two people familiar with the matter said. He talked about his long career at the Justice Department and his reputation, which he did not want Trump to tarnish, the people said.“I can go. I’m ready to go. I can resign. But I don’t want to go out with a tweet,” the deputy attorney general said, according to one person’s account. Trump routinely makes significant personnel announcements via Twitter.The person said Rosenstein left for another, regularly scheduled White House meeting but soon had a call with Trump. Even in the days that followed, his departure seemed so certain that the Justice Department lined up a succession plan. But Rosenstein ultimately met with Trump aboard Air Force One a few weeks later and remained at the Justice Department. He might do so almost up to the point his successor is confirmed.Trump has nominated Deputy Transportation Secretary Jeffrey Rosen to replace Rosenstein. Rosen must still be confirmed by the Senate — which could happen next month.Rosenstein’s defenders say he is a prosecutor at heart, guided by doing what he thinks is right rather than which side of the political aisle will support him. They note that he has faced criticism from politicians of both parties and that the same people who now worry about him praised him for appointing Mueller.“You had people drawing a red line around him to protect him in the beginning. Now those same people are going to say, ‘Oh, he’s a conservative hack,’ ” said James M. Trusty, a partner at Ifrah Law and a friend of Rosenstein’s. “In the future, as people look back, there’s lots of room for criticism on lots of things at the FBI and DOJ, but I think he’ll be acquitted nicely.”The firing of ComeyRosenstein was installed as the deputy attorney general in April 2017, and only a few weeks into his tenure, he confronted the crisis that would come to define it. Trump, upset over the Russia investigation, wanted to fire Comey, who would not say publicly that Trump was not a target of the Russia probe. After having advisers draft a letter firing Comey, the president was persuaded to talk to Rosenstein and then-Attorney General Jeff Sessions, according Mueller’s report.In a May 8 meeting with White House lawyers, Rosenstein and Sessions “criticized Comey and did not raise concerns about replacing him,” according to Mueller’s report. Later that day, in front of the president, Rosenstein described his concerns with Comey’s handling of the investigation of Hillary Clinton’s use of a private email server while she was in government, according to the report.Notes from one participant in the meeting say that Trump told Rosenstein to draft a recommendation about the firing and to include in it that Comey had refused to say Trump was not personally targeted by the Russia investigation, according to Mueller’s report. Rosenstein, according to the notes, said that was not the basis for his recommendation, so he did not think Russia should be mentioned.According to Mueller’s report, Rosenstein left the meeting and told others his reasons for replacing Comey were not the same as Trump’s. The next day, he turned in a memorandum saying the FBI was “unlikely to regain public and congressional trust” with an unrepentant Comey at the helm. Though the memo did not mention Russia, it offered Trump some political cover. The president fired Comey, and White House aides berated reporters who suggested the move was based on anything other than Rosenstein’s recommendation. The White House released Rosenstein’s memo to support Trump’s action.Comey’s termination sparked a crisis at the FBI and Justice Department. The deputy attorney general believed the White House was misstating his role in the decision. FBI leaders — acting director McCabe in particular — grew distrustful of Rosenstein.At a meeting that month, according to McCabe’s recollection captured in contemporaneous memos, Rosenstein suggested he could wear a wire to surreptitiously record the president and talked in passing of using the 25th Amendment to oust Trump from office. Rosenstein has generally disputed that account. But on May 17, he took the dramatic step of appointing Mueller as special counsel — giving the Russia investigation some measure of independence.McCabe remained worried. At a meeting shortly after Mueller’s appointment, he and Rosenstein each suggested the other should recuse himself from the case, though neither did, people familiar with the matter have said.Mueller’s report says the special counsel’s team interviewed Rosenstein on May 23 — making it one of the earliest conversations the team had with a witness. Kerri Kupec, a Justice Department spokeswoman, said career ethics officials at the department determined he did not need to recuse.Trump was already incensed at Sessions for recusing himself from the Russia case, and he would soon turn his ire on the deputy attorney general — deriding him as a “Democrat from Baltimore.” Rosenstein had been the U.S. attorney in Maryland during the Obama administration, but he is a Republican and lives in Bethesda, Md., a suburb of Washington.Conservative allies of the president, led by Rep. Mark Meadows (R-N.C.), pushed Rosenstein to turn over information on the Russia investigation and last April drafted articles of impeachment against him. Meadows and others also privately complained to Trump about his deputy attorney general.For his part, Rosenstein publicly fought back, declaring at an event last May that the Justice Department was “not going to be extorted.”But while he was sparring with Trump’s allies, the deputy attorney general was also maintaining the kind of workplace diplomacy that wins bosses’ favor. He frequently called and wrote letters to White House aides when they were in the news, or when they celebrated their birthday, people familiar with the matter said. He was recently spotted hugging the president’s personal assistant and other aides at the annual Gridiron Club dinner, and on Monday he was photographed at the White House Easter Egg Roll, waiting in line to greet one of the president’s closest advisers, Kellyanne Conway.
President Donald Trump made an incendiary remark at a rally Saturday night, veering from criticism of Wisconsin's Democratic governor to a false claim that mothers and doctors have the option to "execute" babies.Speaking at a rally he hosted in Green Bay, Wisconsin, on Saturday, Trump pointed to former Wisconsin Republican Gov. Scott Walker, who was in attendance, and said Walker's successor, Democratic Gov. Tony Evers "shockingly stated that he will veto legislation that protects Wisconsin babies born alive."According to the Milwaukee Journal Sentinel , Evers planned to veto a GOP-backed state bill that could have meant life sentences in prison for doctors who intentionally did not provide medical care to babies born alive after a failed abortion.Trump continued on the theme after his initial comment to claim that mothers and doctors are given the choice to "execute" a baby."The baby is born," Trump said. "The mother meets with the doctor. They take care of the baby. They wrap the baby beautifully, and then the doctor and the mother determine whether or not they will execute the baby. I don't think so."Trump's claim that mothers and doctors are permitted to execute a baby after it leaves the womb is incorrect. The bill he referred to would mandate that health professionals do all they could to keep a baby alive if it was "born alive" and would penalize anyone who let a baby die.Trump insisted at his rally that this was "incredible" and also made an implicit reference to a comment from Virginia Democratic Gov. Ralph Northam, who sparked confusion and controversy earlier this year when asked about legislation that would relax requirements around abortions in the third trimester."Until this crazy man in Virginia said it, nobody even thought of that," Trump said. "Did anyone even think of that? You hear late-term, but this is when the baby is actually born, it came out, it's there, it's wrapped and that's it."Northam told Washington radio station WTOP in January: "[Third trimester abortions are] done in cases where there may be severe deformities. There may be a fetus that's nonviable. So in this particular example, if a mother is in labor, I can tell you exactly what would happen.""The infant would be delivered. The infant would be kept comfortable. The infant would be resuscitated if that's what the mother and the family desired. And then a discussion would ensue between the physicians and the mother," Northam, a pediatric neurosurgeon, said.Later, a spokesperson for Northam said his comments were taken out of context and "were limited to the actions physicians would take in the event that a woman in those circumstances [i.e. nonviable pregnancy and severe fetal abnormalities] went into labor" but the clarification did not address Northam's remark that "the infant would be delivered."CNN spoke with a pair of ob-gyns earlier this year, both of whom took issue with the phrase "late-term" and rhetoric around the issue."Abortion later in pregnancy is not used as an alternative to delivering healthy women's full-term, viable pregnancies," said Dr. Barbara Levy, vice president of health policy at the American College of Obstetricians and Gynecologists. "Additionally, it's callous to suggest that healthy women with viable pregnancies at term abruptly change their minds and seek abortion care as the solution."Asked why abortions would happen at a later stage of pregnancy, Dr. Jennifer Conti, a fellow with the advocacy group Physicians for Reproductive Health and co-host of The V Word podcast, said, "Those exceptionally rare cases that happen after 24 weeks are often because a fetus has a condition that cannot be treated and will never be able to survive -- regardless of the gestational age or trimester.""It's this exact reason that it's nonsensical to legislate these cases: Nobody arrives at the decision to have an abortion after 24 weeks carelessly," Conti said. "Rather, it's the rare case of rapidly decompensating maternal heart disease or a delayed diagnosis of anencephaly, where the fetus forms without a complete brain or skull, that bring people to these decisions."
The Washington Post is out with an updated count of President Trump's false and misleading statements since Inauguration Day. And it shows that Trump has surpassed the 10,000 mark. It's a milestone, but not a cause for celebration. Whatever the opposite of popping champagne is, do that, I guess?"The president continues to say false or misleading statements at an unbelievable pace," The Post's fact-checker-in-chief, Glenn Kessler, said on CNN's "New Day" Monday morning."He hit 5,000 in September. Now here it is, seven months later, and he's now hit 10,000," Kessler said. "That's an average of about 23 false or misleading claims a day in the last seven months."Kessler's new story, co-written with Salvador Rizzo and Meg Kelly, says "the tsunami of untruths just keeps looming larger and larger."Many of the misstatements are about immigration issues — with distortions and utter falsehoods about migrants, border walls, and Democrats.Other common bogus claims relate to Robert Mueller's probe, trade talks with other countries, and Trump's accomplishments in office. The Post's database includes everything from exaggerations to outright lies.As of Saturday night, after the president held a rally in Wisconsin, the Post's official count was 10,111 false or misleading statements in 828 days.The Post has observed that Trump has become looser and looser with the facts over time.On Sunday, when his team was still crunching the numbers, Kessler told me "we counted 45 misstatements or falsehoods in his interview with Sean Hannity" the other day.The Hannity chat was barely 45 minutes long, so that means Trump said something deceptive every minute of the television program.Leading versus MISleadingI return to this point about the president's deceptions quite often — and that's because I believe the lying often times is THE story. Not what he said, but why he chose to mislead instead of lead.Speaking on CNN on Sunday, I called Trump the "say anything" president. Whether it's an outlandish claim, a conspiracy theory, or a contradiction of his own comments, he's willing to say anything to keep the show going.To believe Trump, you have to disbelieve the press...Let's be real: Untold millions of people won't believe The Post's research. Some will attack the paper for doing the work at all.I'm always interested when reporters ask Trump rallygoers about their media habits. The latest contribution to this canon is from Jake Malooley, who spoke with fans at Saturday night's rally in Wisconsin. "Trump has spawned a new generation of media critic/cynic," Malooley wrote for Esquire. He says the "fake news" refrain is "one of the crucial ties that bind his most fervent supporters." Read all about it here."EXECUTE"We led Sunday's "Reliable Sources" television program with the president's wildly false claim that "mothers and doctors have the option to 'execute' babies." He has brought up this infanticide talking point before, but he was even more explicit about it at Saturday's rally. It barely generated news coverage on Sunday morning. Matt Fuller of HuffPost tweeted that he was "watching local cable news," and there was "no mention of the massive lies he told about killing babies or his sanctuary city plan. This isn't responsible coverage."
President Trump proclaimed recently that his administration would be “fighting all the subpoenas.” And the headlines are filled with the proliferating disputes between the Democratic-controlled House and the administration. According to CNN, the Democrats have declared they will take the disputes “to the courts,” even though, as several scholars quoted in the article note, the courts are not likely to resolve anything quickly, or perhaps ever.Yet the constitutional explanations provided so far by the administration are not necessarily a “radical departure” from past practice—or even novel or unique to the Trump administration. They arise out of long-held positions of the executive branch adopted, at least in part, by administrations of both parties. Ultimately, these conflicts arise out of the fundamentally different views held by the executive branch and Congress about their respective constitutional authorities in the context of congressional oversight. And, importantly, the current battles illustrate in a very public way the executive branch’s expansive view of executive privilege.Congressional oversight is defined by the Congressional Research Service as the “review, monitoring, and supervision of the implementation of public policy—of the executive branch.” And although Congress has engaged in various types of oversight throughout the nation’s history, the Congressional Research Service notes that it was not until the last half of the 20th century that oversight became a primary focus of Congress. The constitutional issues that have arisen related to congressional oversight are thus somewhat recent as a historical matter, and they are continually evolving. Moreover, the Supreme Court and other appellate courts have had few opportunities to address these issues—and almost no opportunities outside of Watergate-related disputes—leaving a dearth of precedent to guide the two branches in these disputes.As a career attorney in the Office of Legal Counsel (OLC) at the Department of Justice, I focused primarily on these somewhat arcane constitutional issues, working with career officials at the department and officials at the White House Counsel’s offices and agency counsels’ offices during the Obama administration and, more briefly, the Trump administration. We gave a lot of thought to the endgame and the bottom-line constitutional authorities of the two branches and debated the proper resolution of issues that could potentially arise out of a number of information disputes between the Obama administration and various House committees under Republican control. But, like most congressional oversight matters, almost every dispute was ultimately resolved through behind-the-scenes negotiation or largely petered out after the shift in control of the White House after the 2016 election.Now, though, a litany of the most difficult and novel constitutional questions we worked on lurks behind each new headline. In recent days, both the deputy White House counsel and the attorney general have directed executive branch officials to refuse to comply with congressional subpoenas requiring the officials to sit for a deposition. And reports indicate that the White House intends to prevent former White House Counsel Don McGahn from testifying in compliance with the subpoena issued by the House Committee on the Judiciary and to fight similar attempts to depose other presidential aides. In his private and corporate capacity, President Trump has sued the chairman of the House Committee on Oversight and Government Reform, seeking to quash a subpoena sent to a third-party accounting firm for information about his businesses. And then there is that other issue about information redacted from the Mueller report.Each of these disputes, along with other disputes such as the congressional request for Trump’s tax returns, implicates both normative practice between the branches and constitutional doctrines about the separation of powers and the potential limits of congressional oversight authority. But the administration’s recent directives for officials to refuse to comply with a congressional subpoena are particularly interesting, because they very publicly establish a new constitutional weapon in the executive branch’s oversight arsenal. And they illuminate the willingness—perhaps even the desire—of both the House and the administration to play constitutional hardball rather than seek potential accommodations. By engaging in hardball, the two sides may be teeing up a constitutional conflict that will finally bring clarity to the Constitution’s separation of powers in the context of congressional oversight. Or it may simply deepen the divide between the executive branch and Congress without providing any resolution.Either way, these actions are undoubtedly establishing—for better or worse—new battle lines in the evolving conflict between Congress and the executive branch, lines that will likely remain even when the current actors have been replaced by new ones. A closer look at the administration’s actions with respect to the House oversight committee subpoenas illustrates both the historical grounding of these actions as well as their novelty. And it illuminates what this game of hardball may portend for the future of congressional oversight.“Masters From Equal Branches of Government”The same constitutional issue underlies the White House’s direction to former White House Personnel Security Director Carl Kline and Attorney General William Barr’s direction to Deputy Assistant Attorney General John Gore to refuse to comply with the House oversight committee subpoenas seeking their depositions. As Deputy White House Counsel Michael Purpura stated the administration’s position, the compelled deposition of Kline would “unconstitutionally encroach[] on fundamental Executive Branch interests” because the committee had indicated it would not allow a representative from the White House Counsel’s office to attend. The Justice Department similarly informed the committee that Gore would be directed not to appear by Barr because “the exclusion of agency counsel from a compelled deposition would unconstitutionally infringe upon the prerogatives of the Executive Branch.”There is no doubt that the administration lawyers, including the White House Counsel’s office and the OLC, have collectively decided to adopt this position based on their view of the constitutional limits on congressional authority. And, despite what reports may say, the constitutional position is not entirely new. The Obama administration, for example, repeatedly objected to House committees’ attempt to depose officials without agency counsel present, and issued an opinion shortly before President Trump took office that noted the “constitutional concerns that may be raised by the Committees’ prohibition on attendance by counsel representing the agency.”The dilemma presented by compelled depositions for the executive branch is relatively straightforward. The House oversight committee’s deposition procedures have long prohibited any “observers or counsel ... for agencies under investigation” from attending the deposition. An individual may have private counsel, but private counsel is bound to represent the interests of the individual, not the agency. And the committee is seeking information about the official acts of the agency and agency employees. So the deposition could potentially put an individual employee and his or her personal attorney in a bind. On one hand, the committee has issued a valid subpoena requiring the individual to answer questions under the threat of contempt. The official’s personal interests thus weigh in favor of responding. On the other hand, the executive branch claims that certain types of information—presidential communications, internal deliberations, sensitive law enforcement information, diplomatic communications and attorney-client information, to name the most prominent examples—are confidential and, ultimately, protectable from disclosure to Congress under the doctrine of executive privilege. The individual does not have the authority to waive that privilege, and agency regulations, called Touhy regulations after the Supreme Court case Touhy v. Ragen, prevent an official or employee from disclosing information relating to his or her official duties without authorization. The Justice Department Touhy regulations, for example, state that “no present or former employee of the Department of Justice may testify or produce Departmental records in response to subpoenas or demands of courts or other authorities issued in any state or federal proceeding without obtaining prior approval by an appropriate Department official.”As the letter from Carl Kline’s attorney to the committee said, the individual is thus confronted by contradictory compulsory demands from “masters from two equal branches of government.” Kline has decided to “follow the instructions of the one that employs him,” and, under the Supreme Court’s decision in Touhy, the direction of that “master” is likely a defense to any contempt charge.What is new is the act of directing an official to refuse to comply with a subpoena for a deposition on these grounds. I believe this is the first instance of an administration actually exercising that authority, though it undoubtedly has been discussed as a possibility in the past. And I am not aware of any scholarship or judicial precedent that directly addresses the issue; up until now, it has been a theoretical question. Touhy, for example, addressed only “the right of a subordinate official of the Department of Justice ... to refuse to obey a subpoena” issued by a court; it expressly declined to address the lawfulness of the attorney general’s order and the “ultimate reach of the Attorney General to refuse to produce at a court’s order the government papers in his possession.” And the statutory basis on which agency Touhy regulations originally rested—the Housekeeping Statute passed in 1789 by the First Congress, 5 U.S.C. § 301—was amended after Touhy to state clearly that it “does not authorize withholding information from the public or limiting the availability of records to the public.”The administration’s position is that the Constitution requires a congressional committee to allow agency counsel to be present when the committee is questioning an executive branch official about official duties and actions of the agency. But to understand the basis for that position, one must first understand the executive branch doctrine of executive privilege—a term used often by elected officials and the media but usually in a manner quite different from the complex legal doctrine it represents within the executive branch.The executive branch understands executive privilege in the context of congressional oversight not as an evidentiary privilege but as an implied constitutional authority belonging to the president to control dissemination of particular types of sensitive information. Because the privilege belongs to the president and president alone, a lower branch official cannot disclose information potentially protected by executive privilege unless and until authorized to do so by the president. In other words, the president must first determine whether to assert executive privilege. The result of that position is that executive branch officials, such as Attorney General Jeff Sessions in the current administration or Treasury Secretary Jack Lew in the Obama administration, repeatedly decline to provide information, citing executive privilege, despite the fact that no formal assertion has yet been made by the president. The information remains confidential because the president retains the authority to assert privilege, and the officer lacks authority to disclose it until that determination has been made.In a deposition, unlike an information request, the executive branch does not know what questions will arise or what information the individual may be about to provide. If the testimony potentially implicates a component of executive privilege, then the executive branch view is that it needs to have its counsel in the room to monitor and protect that constitutional privilege. For example, if John Gore is asked about internal deliberations relating to the inclusion of the citizenship question on the census, agency counsel could step in and say he was declining to answer that question to preserve a possible executive privilege claim by the president.In the executive branch view, if Congress may coerce an individual to divulge confidential information by threatening contempt before the president has an opportunity to determine whether to assert privilege, then the constitutional privilege offers little protection. The presence of agency counsel helps prevent that from happening and protects the constitutional privilege. As a result, the presence of agency counsel is an implied constitutional requirement necessary to protect the constitutional privilege of the executive branch. As the Purpura letter puts it, “without attending the deposition, this office cannot protect the constitutional equities of the Executive Branch, or ensure that the disclosure of any information subject to executive privilege is property authorized.”The constitutional position is stated most clearly in the April 9 letter from Assistant Attorney General Stephen Boyd, on behalf of the Department of Justice, to the House oversight committee. The rule prohibiting counsel would “impermissibly infringe on the President’s authority to supervise the Executive Branch’s dissemination of information to Congress and to protect information within the scope of executive privilege.” The constitutional authority infringed is the authority to supervise dissemination, which applies even if no privilege has been asserted so long as the information is “within the scope” of executive privilege. And that position is not necessarily novel: The 2017 Obama administration opinion took pains to note in a footnote, without a need to do so, that a prohibition on agency counsel “could potentially undermine the Executive Branch’s ability to protect its confidentiality interests in the course of the constitutionally mandated accommodation process, as well as the President’s constitutional authority to consider and assert executive privilege where appropriate.”The ultimate legal basis for the authority to issue the directives is thus grounded in the executive branch’s long-standing, but expansive, view of executive privilege. Congress, unsurprisingly, has a vastly narrower view of executive privilege as limited to presidential communications. But even if one agrees with the executive branch’s expansive view of executive privilege, or at least some aspects of it, it does not automatically follow that the directives are within the White House’s and Barr’s constitutional authority. The Supreme Court has recognized that “the separation of powers doctrine requires that a branch not impair another in the performance of its constitutional duties.” The entire doctrine of executive privilege originates in that doctrine, under the theory that the executive branch needs to maintain the confidentiality of particular types of information in order to perform its constitutional duties. The question, then, is whether the presence of agency counsel is necessary to protect executive privilege in this context or whether alternatives would suffice.The administration’s decision that agency counsel is a constitutional necessity represents the next logical step in the constitutional one-upmanship that has characterized the actions of both branches over the past 30 years. And it comes in response to the House oversight committee’s decision to play constitutional hardball as well. The committee’s refusal to allow agency counsel to accompany Kline or Gore to a sworn voluntary interview, as opposed to a compelled deposition without agency counsel, is also a break from typical practice, particularly with respect to House oversight depositions.In the past, the sides have usually, but not always, reached an accommodation that provided the sworn testimony sought by the committee but also allowed agency counsel to be present. Gore already appeared voluntarily for an interview, and Kline offered to appear voluntarily. But both declined, and would almost certainly continue to decline, to answer particular questions touching on areas protected by executive privilege. The reason to pursue a compelled deposition is to subject individuals to the threat of contempt for their noncompliance. The House oversight committee is, in other words, utilizing its constitutional authority to force the administration to provide information it believes may be protected by executive privilege by making individuals choose between the two “masters.” Although the House Republicans flirted with this tactic during the Obama administration, the House oversight committee has, in these two instances, begun using it more aggressively.In a sense, the committee is calling, or attempting to call, the administration’s bluff. Executive branch practice is to not even consider an assertion of executive privilege until a committee is considering a contempt resolution. The development of an impasse leading to contempt typically takes a while when documents are at issue. But a deposition puts contempt on the table immediately. The committee has thus used the deposition as a way to make the executive branch decide more quickly whether to assert executive privilege or not.But the administration has, in turn, adopted a more aggressive position to parlay that contempt threat. In the past, in the rare instances in which a committee insisted on a deposition without agency counsel, the executive branch has complied and utilized alternatives to protect its perceived constitutional interest. The Justice Department has noted in prior opinions that private counsel could be employed to act as agency counsel if agency counsel was not allowed. Or, the individual’s private counsel, who is allowed in a deposition, could be instructed that the government “master” was directing the individual not to discuss particular topics or answer particular questions. That private counsel may even be paid by and work with the agency to establish privileged areas and ensure the official or employee adheres to the direction of his or her employer. The agency counsel may sit outside the door or in the next room to be available for consultation if questions arise, an accommodation that committee offered to Kline. The executive branch official could presumably ask to consult with agency counsel next door on every question, thereby frustrating the intent of the committee and turning the deposition into a marathon.The private counsel route was the one adopted by the Obama administration in the matter that led to the 2017 OLC opinion. The OLC determined that the Department of Health and Human Services (HHS) could use its appropriations to retain private counsel to represent an employee in her private capacity in a sworn deposition because doing so furthered governmental interests insofar as they were aligned with the employee’s personal interests. The OLC argued that because the deposition was in the employee’s official capacity, “the information at issue in her testimony is agency information” not personal information and “[t]he Executive Branch controls the dissemination of such information.” Accordingly, private counsel could work with HHS to “understand where the government’s confidentiality interests lie and what information the employee is authorized to disclose.” This alternative is not wholly satisfactory to the executive branch, which has objected consistently to the practice of excluding agency counsel for more than 30 years. But these alternatives would be lesser extremes than deploying the constitutional authority to direct an employee to refuse to comply with a congressional subpoena.Unsatisfactory alternatives become even less appealing, however, if deposition subpoenas become commonplace and congressional committees make it a practice to refuse to accommodate agency counsel. And that is particularly true when an oversight war between the House and an administration is in its initial stages and battle lines drawn now will establish a precedent for future disputes. When Congress engages in hardball, particularly at the outset of a series of investigations, the executive branch has more motivation to play hardball in return and establish favorable precedents to which it will continually adhere. In this case, the administration has concluded that, as a constitutional matter, the presence of agency counsel is not just desirable but necessary to protect executive branch interests. And, on that basis, the administration has now forcefully established that it will direct officials not to comply with subpoenas for depositions if agency counsel is not allowed to attend. The ball is now in Congress’s court.How Can Congress Respond?Congress has limited ability to respond to such forceful positions. It usually attempts to force compliance by referring a recalcitrant witness for criminal contempt under 2 U.S.C. §§ 192, 194. Congress has referred for contempt under this statute a number of executive branch officials who have refused to testify or provide documents. But Congress, having no authority to prosecute someone for criminal actions, must rely on the executive branch to prosecute an individual referred for criminal contempt of Congress, specifically the U.S. attorney for the District of Columbia. And, despite the contempt of Congress statute’s statement that it “shall be” the duty of the U.S. attorney to bring the contempt referral before a grand jury, the executive branch has repeatedly opined, in OLC opinions from 1984, 1995, 2008 and 2014, among other places, that it retains discretion to refuse to prosecute an individual for contempt of Congress. In the past, those declinations have arisen in the context of a presidential assertion of executive privilege. But the 2014 opinion applies that principle and concludes that the U.S. attorney’s prosecutorial discretion is not limited to situations in which executive privilege has been asserted. In that case, the U.S. attorney declined to prosecute Internal Revenue Service official Lois Lerner after she had been held in contempt for refusing to provide information to a congressional committee on the basis of her Fifth Amendment right against self-incrimination.The same principle would apply here. Because the executive branch directed the individual not to comply with the subpoena based on its inherent constitutional authorities—namely, executive privilege—it cannot, consistent with its constitutional interpretation, turn around and prosecute the individual for obeying that order. In the words of the 2008 opinion, the individual’s “non-compliance with the subpoenas ... d[oes] not constitute a crime.” The adoption of the criminal contempt of Congress statute was motivated by a desire to ensure that private individuals in contempt would be punished even after the expiration of a particular Congress. It was never contemplated as a way to punish executive branch officials in disputes between the branches; nor is it well suited to do so, given its reliance on the executive branch for enforcement.Congress does have authority to punish contempt itself. But it has not exercised its inherent contempt power in almost a century. And the specter of Congress sending the sergeant-at-arms to arrest White House and Justice Department officials and imprison them in the basement of the Capitol or a D.C. jail is laughably absurd and would be challenged immediately through a writ of habeas corpus. Mort Rosenberg, a longtime legal analyst for the Congressional Research Service, among others, has repeatedly proposed that Congress resuscitate its inherent contempt authority—not to imprison recalcitrant witnesses but to impose the lesser punishment of a fine. Rosenberg has proposed a $25,000 per day fine for not complying with the subpoena. Given that Congress has never taken such action in the history of the country, any attempt to do so would undoubtedly be challenged. But Democrats, frustrated by their inability to enforce compliance with subpoenas, have floated it as a possibility. And, according to Bloomberg, some have apparently even suggested the committee simply “lock them up” until they comply under inherent contempt. Perhaps those actions are the next step in the ongoing oversight battle should the committees again chose constitutional hardball.Because Congress essentially lacks any real power to enforce its subpoenas, the executive branch has the upper hand in its ability to direct current employees and threaten their employment. (That leverage is diminished with former employees, such as former White House Counsel Don McGahn, and the executive has to largely rely on the former employee’s willingness to protect its privilege concerns.) As a result, House Democrats have indicated they plan to “turn to the courts” for relief, CNN reports. But, as scholars quoted in the CNN report emphasize, civil contempt actions that ask a court to enforce the subpoenas are not likely to validate the House’s subpoenas, at least not any time soon. Such actions simply take too long and would be unlikely to be resolved before the next election. These types of actions were filed during each of the past two administrations after the executive branch refused to comply with subpoenas and claimed executive privilege. A federal district court ultimately resolved portions of both disputes, which involved, respectively, the firing of U.S. attorneys during the George W. Bush administration and Operation Fast & Furious during the Obama administration (explained in-depth here by Andy Wright), but only after prolonged litigation. The appeal was not resolved before the election, which ultimately led to settlement of the U.S. attorneys controversy negotiated by officials from the Obama and Bush administrations. And it has led to settlement discussions in the Fast & Furious appeal—which, though it originated with a subpoena issued in October 2011, is still pending in the U.S. Court of Appeals for the D.C. Circuit.Professor Dan Hemel has suggested that a civil contempt action does not have to take so long and an appeal to the D.C. Circuit could be “wrapped up” in a matter of months if House Democrats “push” the action. But that overlooks the fact that a district court will likely have to resolve difficult threshold issues, such as standing, from which an interlocutory appeal could be certified, as the Justice Department requested in the Fast & Furious matter. And even if the merits issues are briefed immediately and quickly, a district court judge may simply take a long time to decide the difficult constitutional questions. In the Fast & Furious matter, for example, the parties filed summary judgment motions in early 2014, and the judge addressed some of the substantive questions in a series of interlocutory orders but did not finally resolve the case until January 2016.A civil contempt action to enforce compliance with a deposition subpoena would likely be easier to resolve in an expedited fashion than the Fast & Furious litigation, which involved thousands of documents falling into various (disputed) categories that needed to be reviewed for privilege claims. But even if a district court were willing to resolve it as quickly as possible, resolution would still take a number of months to allow for adequate briefing of all the issues and time to write an opinion. And, at that point, it is not clear the appellate court would be willing to expedite an appeal. The D.C. Circuit twice abstained in an executive privilege claim in the late 1970s, urging the parties to reach a settlement—and, most recently, denied a motion to expedite an appeal in the dispute over the U.S. attorney executive privilege claim because “even if expedited, this controversy will not be fully and finally resolved by the Judicial Branch—including resolution by a panel and possible rehearing by this court en banc and by the Supreme Court—before the 110th Congress ends.”A district court decision is thus likely the best House Democrats would be able to manage before the election. And a district court decision has no precedential weight. The OLC, for example, has expressly determined that the executive branch would not follow the reasoning in the district court decision issued in the U.S. attorneys dispute.“Turning to the courts” to attempt to force the Trump administration to comply with these subpoenas would thus be extremely unlikely to result in actual enforcement of the subpoenas before a new House and president take office. But if the election did not moot the cases or lead to their settlement, such actions would be the best, and perhaps only, vehicle for getting some judicial resolution of the constitutional dispute over congressional oversight.Setting a PrecedentThe novel constitutional authority asserted by the executive branch here is grounded in long-standing executive branch constitutional theory and is not likely to be resolved by the courts. And as David Nather, Jonathan Swan and Alayna Treene have written recently, “[T]here’s not much Democrats can do if [the administration] says no to everything.” Like many oversight disputes and disputes in other areas of overlapping authorities such as war powers, the limits of the two branches’ constitutional authority will be established through political power, practice and history—and, in many cases, constitutional hardball.Both sides would be wise to understand that history has a way of reversing roles and repeating itself. Precedents established by the executive branch are rarely overturned by future administrations, even of the opposite party. Then-candidate Obama, for example, opined that Harriet Miers should testify as required by a congressional subpoena, at least when there is evidence of wrongdoing. But, when Obama was president, his Justice Department continued to litigate the controversy until it settled and to support the Bush administration’s refusal to comply with congressional subpoenas.The aggressive use of deposition subpoenas in oversight of the executive branch began when the Republicans controlled the House during President Obama’s last term, expanding the authority to issue subpoenas for depositions beyond the House oversight committee, giving committee chairmen unilateral authority to issue subpoenas and utilizing these new authorities as a way to pressure the administration to comply with information demands. And now House Democrats are continuing and advancing that practice. In response, the executive branch has claimed a new authority and opened another battle line. What both sides do next will be closely recorded not only in the headlines but also in the ongoing evolution of the constitutional dispute over congressional oversight between the executive branch and Congress.
Over the past week, the president’s statements and the executive branch’s actions in response to congressional oversight requests suggest that the executive branch may have decided to adopt a strategy of maximal resistance to oversight across the board. If so, this would be a dramatic break from the executive branch’s approach to responding to congressional requests for at least the past half-century. Implementing a strategy designed to stonewall meaningful oversight across the board would also be a form of constitutional hardball that significantly increases the stakes in this contest of will between the branches.At least since Watergate, if not for longer, the executive branch has recognized the important role congressional oversight plays in the constitutional system and has understood itself to have a constitutional obligation to accommodate legitimate oversight requests from Congress. This long-standing executive branch perspective is embodied in a 1982 memorandum to all agency heads regarding how to respond to congressional requests, often referred to as the Reagan memo. This memorandum, which remains in force, explicitly states that it is executive branch policy “to comply with congressional requests for information to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch.”While the Reagan memo recognizes there may be times when it is necessary to withhold information to protect important executive branch confidentiality interests, it emphasizes the expectation that such impasses should be rare and limited to “compelling circumstances.” Instead, the Reagan memo underscores the importance of engaging in a good faith negotiation to accommodate the interests of both branches: “Historically, good faith negotiations between Congress and the Executive Branch have minimized the need for invoking executive privilege, and this tradition of accommodation should continue as the primary means of resolving conflicts between the Branches.” This process of good faith negotiation has become known as the accommodation process.To be sure, in nearly every administration since the Reagan memo, there have been a handful of contentious issues where a dispute between Congress and the executive branch regarding access to executive branch information reached a high-profile impasse. These instances of interbranch conflict have been controversial matters that garnered significant media coverage and public interest. But the salience of these occasional instances of conflict should not obscure the extent to which the branches have been able to resolve the vast majority of disputes through good faith engagement in the accommodation process. Every year Congress issues hundreds if not thousands of oversight requests to the White House and executive branch agencies. Yet the number of disputes that reach the level of public consciousness in a presidential term can usually be counted on one hand. This is because in most oversight matters, the branches reach a reasonable accommodation, which often includes some disclosure of agency information arguably subject to a potential executive privilege claim, and thus avoid impasse and escalation.This approach to accommodation is not driven just by policy but also by recognition of a constitutional obligation to seek such reasonable accommodations. The U.S. Court of Appeals for the D.C. Circuit has explained this constitutional mandate in a manner worth quoting at length in light of present circumstances:The framers ... expect[ed] that where conflicts in scope of authority arose between the coordinate branches, a spirit of dynamic compromise would promote the resolution of the dispute in the manner most likely to result in efficient and effective functioning of our governmental system. Under this view, the coordinate branches do not exist in an exclusively adversarial relationship to one another when a conflict in authority arises. Rather, each branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation.* * *Because it was a deliberate feature of the constitutional scheme to leave the allocation of powers unclear in certain situations, the resolution of conflict between the coordinate branches in these situations must be regarded as an opportunity for a constructive modus vivendi, which positively promotes the functioning of our system. The Constitution contemplates such accommodation. Negotiation between the two branches should thus be viewed as a dynamic process affirmatively furthering the constitutional scheme.In 1981, Reagan’s attorney general described the essence of this process: “The accommodation required is not simply an exchange of concessions or a test of political strength. It is an obligation of each branch to make a principled effort to acknowledge, and if possible to meet, the legitimate needs of the other branch.”There are important ramifications of recognizing a constitutionally based obligation to engage in a serious and good faith effort to reach a reasonable accommodation when there is a disagreement between the branches. Every executive branch official swears an oath to uphold the Constitution upon taking office, and this commitment should be understood to include the constitutional mandate to engage in good faith to seek reasonable accommodations.Adopting an approach of resisting all oversight requests across the board would be a dramatic break from this traditional executive branch understanding of its obligations and would constitute a breach of this constitutional mandate to engage in good faith to resolve these sorts of interbranch disputes.Before turning to what the adoption of such an approach would mean, a note of caution: It remains possible that the pattern of hardline positions taken by the executive branch in response to oversight requests in the past week was just a coincidence, not a design. As Jonathan David Shaub ably explains, when taken in isolation, each response is accompanied by particularized constitutional justifications and claims to respond to unusual positions taken by congressional committees as well. Harder to explain in this fashion, though, are President Trump’s more strident statements regarding how the administration plans to respond to oversight from House Democrats more generally. While perhaps these may also be discounted as off-the-cuff statements rather than a well-crafted legal position, given the global nature of these statements and President Trump’s willingness to transgress norms and conventions in other contexts, it seems worthwhile at this point to at least game out what it might mean if the administration were to attempt to resist oversight across the board.If the pattern of statements and actions by the executive branch over the past week is a harbinger of a sharp turn to such a maximalist resistance strategy, then the country is truly at an important constitutional moment that has the potential to shape the relationship between the branches in significant ways for the foreseeable future.In this sense, the decision to adopt a strategy of resisting oversight across the board would be a form of constitutional hardball. That is, it would be taking an uncompromising approach in the pursuit of partisan ends that may not violate express constitutional commands but certainly flouts long-standing conventions and norms about how constitutional processes should operate—conventions and norms that officials have, in the past, regularly followed out of a sense of obligation. These tactics, then, are not just political hardball. Rather, as Joseph Fishkin and David E. Pozen describe it, such tactics “put pressure on the ‘norms of good institutional citizenship’ that help to structure and ‘sustain the constitutional system.’” The adoption of constitutional hardball tactics places other constitutional actors in a difficult quandary. Actors on the receiving end are often confronted with a choice between two unappealing options: acquiesce, and accept the changes in the constitutional system wrought by the dissolution of the constitutional understandings and conventions that have been broken; or escalate, and enter a high-stakes constitutional confrontation that may be politically unappealing. When the president is the one adopting a constitutional hardball tactic, there is an additional complication: Congress’s institutional interests may be at cross-purposes with the political interests of at least those members who share the same party as the president, which creates cross-pressures that can confound Congress’s ability to respond in an effective manner.This is the choice facing the House of Representatives—and, more specifically, House Democrats—if the administration has, indeed, adopted a strategy of resisting oversight across the board.To acquiesce to such resistance across the board would be to accept a fundamental reworking of the norms and conventions that structure interbranch interactions about oversight. These changes would effect a reset of the constitutional system that could be difficult to reverse in the future (perhaps to the future chagrin of the Republican members who would have facilitated this shift). So Congress might be living with the precedents set this year for a long time.At the same time, members of Congress have limited options to respond in a global way to such a global tactic:They could commit to move each dispute quickly to impasse, a contempt vote and potential litigation—but this could be resource intensive and present hard questions about litigation strategy, and it would depend on asking another branch (the judicial branch) to step in and enforce congressional prerogatives.They could consider resuscitating long dormant congressional powers such as inherent contempt, which haven’t been relied on since the early 20th century—but this would undoubtedly be both politically and constitutionally fraught, and it could present enforcement problems of its own.They might contemplate whether to employ other congressional powers at their disposal that might be used to check or balance executive branch conduct—such as the power of the purse—as a tool to leverage a meaningful change in the executive branch’s hardball oversight strategy. But this too is likely to require a commitment of political resources that members might prefer be directed toward the accomplishment of substantive legislative priorities or other political ends.In short, notwithstanding the important institutional interests of Congress that would be imperiled by the president playing constitutional hardball, escalating the constitutional crisis may be viewed within the legislature as both risky and politically unappealing. That’s not to say that the risks associated with escalating the constitutional crisis are limited to Congress—the executive branch risks unfavorable case law that could strengthen Congress’s hand in future oversight negotiations, and the courts face difficult questions about their role and efficacy in adjudicating political disputes, along with a risk that their participation in such disputes may undermine their perceived legitimacy.A middle-of-the-road approach—for instance, identifying and prioritizing selected disputes to litigate in the courts—may be more politically appealing. But it would be a disproportionate and potentially underwhelming response if the administration implements a global and fundamental shift in strategy. Congress might well win some narrow battles but still lose the war. The result would likely be that a significant number of oversight inquiries would still remain effectively thwarted by the administration’s hardball tactics, and any accountability would at best be substantially delayed even in those matters that were litigated. Such a response may not be enough to avert a meaningful erosion of the constitutional norms and conventions that have governed congressional oversight during recent history and, therefore, not enough to prevent a material shift in the constitutional system.Finally, it’s important to recognize that the difficult choices presented by this hardball approach would not be limited to members of Congress. It may not be surprising at this point if the president and his senior advisers do not embrace a robust view of the obligation to engage in good faith efforts to seek reasonable accommodations in oversight disputes—an obligation that flows from their constitutional oath. But those are not the only officials who may potentially have a decision to make. Any executive branch officials who are presented with both a congressional demand for information and a presidential instruction not to comply will also be faced with a difficult choice and will need to evaluate their own personal view of what their office and their oath require.
In an unprecedented move, the sitting president of the United States on April 22 sued, in his personal capacity, a congressional committee to try to prevent that committee from obtaining documents and information from a third party that had been served with a congressional subpoena. The complaint was filed in the U.S. District Court for the District of Columbia by President Trump and six of his companies against House Oversight and Reform Committee Chairman Elijah Cummings and Trump’s longtime accounting firm Mazars USA LLP. Much of the text of the complaint focuses not on legal arguments but, rather, umbrage-filled statements impugning House Democrats’ motives and process in issuing the subpoena. Yet the legal arguments echo ones White House lawyers are making across the board in response to multiple House committee oversight actions.Is there any merit to the legal arguments in the complaint? How can the president sue to prevent a third party from complying with a subpoena? Does the court have jurisdiction to decide the case? How long will the legal process take—and how might it end?Although there is precedent for courts entertaining suits by third parties to enjoin compliance with a subpoena, Trump is not likely to prevail on the merits. Courts have consistently affirmed that Congress’s investigative authority is broad, and the committee’s subpoena was validly issued. But the lawsuit could nonetheless have the effect of tying up the committee in a lengthy legal process that may delay compliance with the subpoena beyond the conclusion of the 2020 presidential election.BackgroundAt a hearing before the House Committee on Oversight and Reform on Feb. 27, the president’s former lawyer and fixer Michael Cohen testified that Trump frequently changed the estimated value of his assets and liabilities on financial statements prepared by Mazars and other firms, inflating or deflating the value of assets depending on the purpose for which the statements were used. Cohen provided financial statements from 2011, 2012 and 2013 to the committee that raised questions about the president’s representations of his financial affairs on forms and other disclosures relating to the president’s debts.On March 20, Chairman Elijah Cummings sent Mazars a letter requesting eight years of financial documents for Trump and seven Trump-owned entities, including financial statements, periodic financial reports and auditors’ reports and other documents, underlying source documents used in the preparation of such reports, communications between the Trump organizations and Donald Bender (a partner in the firm), and “all communications related to potential concerns that records, documents, explanations, or other information, including significant judgments, provided by Donald J. Trump or other individuals from the Trump Organization, were incomplete, inaccurate, or otherwise unsatisfactory.” The letter cites House Rule X, which charges the Committee on Oversight and Reform with conducting oversight of “the operation of Government activities at all levels, including the Executive Office of the President.”On March 27, Mazars communicated to the committee that it could not voluntarily turn over the requested documents based on accounting rules and laws barring the firm from providing client information without a validly issued and enforceable subpoena. On April 12, Cummings sent a memo to members of the committee indicating members could provide their views before the subpoena was issued. Cummings pointed to the committee’s “full authority to investigate whether the President may have engaged in illegal conduct before and during his tenure in office” and described the committee’s investigation as an effort “to determine whether he has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions, to assess whether he is complying with the Emoluments Clauses of the Constitution, and to review whether he has accurately reported his finances to the Office of Government Ethics and other federal entities.” On April 15, Ranking Member Jim Jordan sent Cummings a letter objecting to the subpoena on substantive and process grounds. Cummings issued the subpoena later that day, requesting documents from 2009 to the present.On April 22, President Trump and the Trump Organization filed their lawsuit against Cummings, Cummings’s chief investigative counsel and Mazars. The complaint seeks, among other things, a permanent injunction of the subpoena and any actions taken to enforce it, and a temporary restraining order and preliminary injunction against Mazars from producing the requested information. It argues that there is no legitimate legislative purpose for subpoenaing Trump’s financial records from his accountant, so the subpoena should be deemed invalid and unenforceable. It also implies that the subpoena may be defective because the procedures preceding its issuance were questionable. The complaint includes Mazars as a defendant “to ensure that Plaintiffs can obtain effective relief.”As I wrote on Lawfare a few weeks ago, the Trump White House has been using the argument that Congress has no legitimate legislative purpose in a matter as a justification to refuse to comply with requests for information and documents from multiple House committees in connection with multiple oversight investigations. According to information provided by two senior administration officials, the Washington Post reported that the White House has refused to share documents requested in multiple oversight inquiries and is “intent on challenging most, if not all, House Democrats’ document requests.” To put an even finer point on it, this week Trump himself told reporters, “We’re fighting all of the subpoenas.”In suing Cummings, Trump is deploying this argument in his personal capacity to fend off congressional requests to third parties for documents.Eastland v. USSFThe complaint relies on Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491 (1975), for the proposition that the court has the power to declare the subpoena invalid and enjoin its enforcement. The issue in Eastland was whether a federal court may enjoin the issuance by Congress of a subpoena that directed a bank to produce the bank records of an organization that claimed a First Amendment privilege status for the records, on the ground that the records were the equivalent of confidential membership lists.The United States Servicemen’s Fund, Inc. (USSF) was a nonprofit membership corporation supported by contributions that established meeting spaces near domestic military installations and published “underground” newspapers meant to communicate, to service members, opposition to the United States’s involvement in anti-communism efforts in Southeast Asia. In early 1970, a Senate resolution authorized the Subcommittee on Internal Security to study and investigate the administration, operation and enforcement of the Internal Security Act of 1950, including the “extent, nature, and effect of subversive activities in the United States” and directed inquiry concerning “infiltration by persons who are or may be under the domination of the foreign government.” The subcommittee began an inquiry into the activities of USSF and requested the organization’s bank records. USSF argued that the bank’s compliance with such a subpoena would infringe on the organization’s First Amendment rights because the purpose of the subpoena was to “harass, chill, punish and deter” USSF and its members in the exercise of their First Amendment rights of freedom of the press and association.The Supreme Court found that the district court properly entertained the action initially because there is “a significant difference between a subpoena that seeks information directly from a party and one that seeks the same information from a third person. In the former case, the party can resist, and thereby test the subpoena; in the latter case, however, unless a court may inquire to determine whether a legitimate legislative purpose is present … compliance by the third person could frustrate any judicial inquiry.” The court then rejected USSF’s arguments and reaffirmed that if members of Congress are acting within the legitimate legislative sphere, the Speech or Debate Clause is an absolute bar to interference in the investigation by the judicial branch.Watkins v. United StatesThe question, then, is whether Cummings’s subpoena of Trump’s financial information is part of a legitimate legislative purpose. The answer is almost certainly “yes.”The power of Congress to investigate and obtain information is very broad. While there is no express provision in the Constitution that addresses the investigative power, the Supreme Court has firmly established that such power is so essential to the legislative function as to be implied from the general vesting of legislative powers in Congress. Trump’s complaint seeks to rely on Watkins v. United States, 354 U.S. 178 (1957), a McCarthy-era case, to support an argument that there is no valid legislative purpose to Cummings’s inquiry.Notably, the assertion that there is no valid legislative purpose for the committee’s inquiry is the same argument the White House is using to oppose congressional requests for information from the administration. White House counsel Pat Cipollone, in his March 4 letter to Cummings regarding the committee’s inquiry into the White House’s handling of security clearances, relied on the same case to argue that because Congress derives its oversight authority from its legislative powers, the White House must ensure that any request from the committee serves a legitimate legislative purpose. The White House, in essence, sought to reverse the traditional presumption in informational struggles between the two branches—that Congress is generally entitled to receive information and it is the executive branch that must make a convincing argument regarding why withholding such information either protects national security or is in the public interest in order to rely on a claim of executive privilege.But such claims are disingenuous. The Supreme Court has affirmed over and over that the power to investigate implied by the Constitution’s grant of legislative power to Congress is very broad. Indeed, a portion of the Watkins opinion makes this point:The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws, as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste. But, broad as is this power of inquiry, it is not unlimited.So what was the limitation on Congress’s investigative power in Watkins? John Watkins was a private citizen and a labor organizer for the United Autoworkers International Union who in 1954 appeared before Senator Joseph McCarthy’s House Un-American Activities Committee. When he refused to answer questions about the communist loyalties of several of his acquaintances, he was convicted of contempt of Congress. The Supreme Court found that his conviction for contempt was invalid under the Due Process Clause of the Fifth Amendment. The court stated:There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress. This was freely conceded by the Solicitor General in his argument of this case. Nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government. No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress. Investigations conducted solely for the personal aggrandizement of the investigators or to “punish” those investigated are indefensible.By Margaret Taylor Friday, April 26, 2019, 2:20 PMGoogle+RedditLinkedInPresident Trump, joined by Senate Majority Leader Mitch McConnell and Senator Roy Blunt, speaks with reporters at the U.S. Capitol. (Official White House Photo by Joyce N. Boghosian)In an unprecedented move, the sitting president of the United States on April 22 sued, in his personal capacity, a congressional committee to try to prevent that committee from obtaining documents and information from a third party that had been served with a congressional subpoena. The complaint was filed in the U.S. District Court for the District of Columbia by President Trump and six of his companies against House Oversight and Reform Committee Chairman Elijah Cummings and Trump’s longtime accounting firm Mazars USA LLP. Much of the text of the complaint focuses not on legal arguments but, rather, umbrage-filled statements impugning House Democrats’ motives and process in issuing the subpoena. Yet the legal arguments echo ones White House lawyers are making across the board in response to multiple House committee oversight actions.Is there any merit to the legal arguments in the complaint? How can the president sue to prevent a third party from complying with a subpoena? Does the court have jurisdiction to decide the case? How long will the legal process take—and how might it end?Although there is precedent for courts entertaining suits by third parties to enjoin compliance with a subpoena, Trump is not likely to prevail on the merits. Courts have consistently affirmed that Congress’s investigative authority is broad, and the committee’s subpoena was validly issued. But the lawsuit could nonetheless have the effect of tying up the committee in a lengthy legal process that may delay compliance with the subpoena beyond the conclusion of the 2020 presidential election.BackgroundAt a hearing before the House Committee on Oversight and Reform on Feb. 27, the president’s former lawyer and fixer Michael Cohen testified that Trump frequently changed the estimated value of his assets and liabilities on financial statements prepared by Mazars and other firms, inflating or deflating the value of assets depending on the purpose for which the statements were used. Cohen provided financial statements from 2011, 2012 and 2013 to the committee that raised questions about the president’s representations of his financial affairs on forms and other disclosures relating to the president’s debts.Support LawfareOn March 20, Chairman Elijah Cummings sent Mazars a letter requesting eight years of financial documents for Trump and seven Trump-owned entities, including financial statements, periodic financial reports and auditors’ reports and other documents, underlying source documents used in the preparation of such reports, communications between the Trump organizations and Donald Bender (a partner in the firm), and “all communications related to potential concerns that records, documents, explanations, or other information, including significant judgments, provided by Donald J. Trump or other individuals from the Trump Organization, were incomplete, inaccurate, or otherwise unsatisfactory.” The letter cites House Rule X, which charges the Committee on Oversight and Reform with conducting oversight of “the operation of Government activities at all levels, including the Executive Office of the President.”On March 27, Mazars communicated to the committee that it could not voluntarily turn over the requested documents based on accounting rules and laws barring the firm from providing client information without a validly issued and enforceable subpoena. On April 12, Cummings sent a memo to members of the committee indicating members could provide their views before the subpoena was issued. Cummings pointed to the committee’s “full authority to investigate whether the President may have engaged in illegal conduct before and during his tenure in office” and described the committee’s investigation as an effort “to determine whether he has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions, to assess whether he is complying with the Emoluments Clauses of the Constitution, and to review whether he has accurately reported his finances to the Office of Government Ethics and other federal entities.” On April 15, Ranking Member Jim Jordan sent Cummings a letter objecting to the subpoena on substantive and process grounds. Cummings issued the subpoena later that day, requesting documents from 2009 to the present.On April 22, President Trump and the Trump Organization filed their lawsuit against Cummings, Cummings’s chief investigative counsel and Mazars. The complaint seeks, among other things, a permanent injunction of the subpoena and any actions taken to enforce it, and a temporary restraining order and preliminary injunction against Mazars from producing the requested information. It argues that there is no legitimate legislative purpose for subpoenaing Trump’s financial records from his accountant, so the subpoena should be deemed invalid and unenforceable. It also implies that the subpoena may be defective because the procedures preceding its issuance were questionable. The complaint includes Mazars as a defendant “to ensure that Plaintiffs can obtain effective relief.”As I wrote on Lawfare a few weeks ago, the Trump White House has been using the argument that Congress has no legitimate legislative purpose in a matter as a justification to refuse to comply with requests for information and documents from multiple House committees in connection with multiple oversight investigations. According to information provided by two senior administration officials, the Washington Post reported that the White House has refused to share documents requested in multiple oversight inquiries and is “intent on challenging most, if not all, House Democrats’ document requests.” To put an even finer point on it, this week Trump himself told reporters, “We’re fighting all of the subpoenas.”In suing Cummings, Trump is deploying this argument in his personal capacity to fend off congressional requests to third parties for documents.Eastland v. USSFThe complaint relies on Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491 (1975), for the proposition that the court has the power to declare the subpoena invalid and enjoin its enforcement. The issue in Eastland was whether a federal court may enjoin the issuance by Congress of a subpoena that directed a bank to produce the bank records of an organization that claimed a First Amendment privilege status for the records, on the ground that the records were the equivalent of confidential membership lists.The United States Servicemen’s Fund, Inc. (USSF) was a nonprofit membership corporation supported by contributions that established meeting spaces near domestic military installations and published “underground” newspapers meant to communicate, to service members, opposition to the United States’s involvement in anti-communism efforts in Southeast Asia. In early 1970, a Senate resolution authorized the Subcommittee on Internal Security to study and investigate the administration, operation and enforcement of the Internal Security Act of 1950, including the “extent, nature, and effect of subversive activities in the United States” and directed inquiry concerning “infiltration by persons who are or may be under the domination of the foreign government.” The subcommittee began an inquiry into the activities of USSF and requested the organization’s bank records. USSF argued that the bank’s compliance with such a subpoena would infringe on the organization’s First Amendment rights because the purpose of the subpoena was to “harass, chill, punish and deter” USSF and its members in the exercise of their First Amendment rights of freedom of the press and association.The Supreme Court found that the district court properly entertained the action initially because there is “a significant difference between a subpoena that seeks information directly from a party and one that seeks the same information from a third person. In the former case, the party can resist, and thereby test the subpoena; in the latter case, however, unless a court may inquire to determine whether a legitimate legislative purpose is present … compliance by the third person could frustrate any judicial inquiry.” The court then rejected USSF’s arguments and reaffirmed that if members of Congress are acting within the legitimate legislative sphere, the Speech or Debate Clause is an absolute bar to interference in the investigation by the judicial branch.Watkins v. United StatesThe question, then, is whether Cummings’s subpoena of Trump’s financial information is part of a legitimate legislative purpose. The answer is almost certainly “yes.”The power of Congress to investigate and obtain information is very broad. While there is no express provision in the Constitution that addresses the investigative power, the Supreme Court has firmly established that such power is so essential to the legislative function as to be implied from the general vesting of legislative powers in Congress. Trump’s complaint seeks to rely on Watkins v. United States, 354 U.S. 178 (1957), a McCarthy-era case, to support an argument that there is no valid legislative purpose to Cummings’s inquiry.Notably, the assertion that there is no valid legislative purpose for the committee’s inquiry is the same argument the White House is using to oppose congressional requests for information from the administration. White House counsel Pat Cipollone, in his March 4 letter to Cummings regarding the committee’s inquiry into the White House’s handling of security clearances, relied on the same case to argue that because Congress derives its oversight authority from its legislative powers, the White House must ensure that any request from the committee serves a legitimate legislative purpose. The White House, in essence, sought to reverse the traditional presumption in informational struggles between the two branches—that Congress is generally entitled to receive information and it is the executive branch that must make a convincing argument regarding why withholding such information either protects national security or is in the public interest in order to rely on a claim of executive privilege.But such claims are disingenuous. The Supreme Court has affirmed over and over that the power to investigate implied by the Constitution’s grant of legislative power to Congress is very broad. Indeed, a portion of the Watkins opinion makes this point:The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws, as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste. But, broad as is this power of inquiry, it is not unlimited.So what was the limitation on Congress’s investigative power in Watkins? John Watkins was a private citizen and a labor organizer for the United Autoworkers International Union who in 1954 appeared before Senator Joseph McCarthy’s House Un-American Activities Committee. When he refused to answer questions about the communist loyalties of several of his acquaintances, he was convicted of contempt of Congress. The Supreme Court found that his conviction for contempt was invalid under the Due Process Clause of the Fifth Amendment. The court stated:There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress. This was freely conceded by the Solicitor General in his argument of this case. Nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government. No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress. Investigations conducted solely for the personal aggrandizement of the investigators or to “punish” those investigated are indefensible.Viewed in context, Trump’s reliance on the Watkins case is not persuasive: Unlike the House Un-American Activities Committee, the oversight committee’s investigation is not an unmoored fishing expedition into private citizens’ private lives. It is an investigation to determine whether the president of the United States has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions on behalf of the nation, to assess whether Trump is complying with the Emoluments Clauses of the Constitution, and to verify whether Trump has accurately reported his finances to the Office of Government Ethics and other federal entities.Cummings’s investigative aims fall squarely within Congress’s broad legislative and investigative authority. Verifying the adequacy and accurateness of federal financial disclosure forms is squarely within the oversight role of Congress. The Foreign Emoluments Clause of the Constitution specifically provides a role for Congress: “No Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” (emphasis added). Evidence that a president or members of his family received bribes or other financial benefit in exchange for favorable official action would be grounds for impeachment.The Name of the Game: Delay, Delay, Delay In the absence of any convincing substantive legal merits, the lawsuit’s point seems mostly to be delaying production of the materials from Mazars. For the president’s purposes, lengthy court proceedings may achieve the same purpose as a victory in the case. There is every reason to believe that the principal reason the president is seeking to delay the release of such materials is so that they won’t have an impact on the 2020 election.In the Eastland case, the Supreme Court self-consciously noted that “private civil actions … may be used to delay and disrupt the legislative function…. [W]hether a criminal action is instituted by the Executive Branch, or a civil action is brought by private parties, judicial power is still brought to bear on Members of Congress and legislative independence is imperiled.” The court goes on to state: This case illustrates vividly the harm that judicial interference may cause. A legislative inquiry has been frustrated for nearly five years, during which the Members and their aide have been obliged to devote time to consultation with their counsel concerning the litigation, and have been distracted from the purpose of their inquiry. The [Speech and Debate] Clause was written to prevent the need to be confronted by such “questioning” and to forbid invocation of judicial power to challenge the wisdom of Congress’ use of its investigative authority.But it is not clear that the ruling in the Eastland case will necessarily mean that the president’s case against the committee is resolved quickly. The court would need to decide whether it has jurisdiction to hear the case and, if it decides it does, a consideration of the merits would follow. Even this seemingly simple process could take months, if not years, to resolve if the president appeals the case to the fullest extent—even to the Supreme Court.Daring Congress to Impeach?The president’s approach in this case is consistent with all of the responses the White House has made to oversight by Congress this year. The Washington Post reported on April 23 that the administration directed a former White House official, Carl Kline, not to comply with a subpoena from the House oversight committee in connection with the committee’s investigation of the handling of security clearances. Trump has also indicated he will oppose current and former White House aides providing testimony to Congress in connection with the release of the redacted Mueller report even though it seems the White House has already waived executive privilege. The Treasury Department is in the process of deciding whether to defy a clear statutory obligation to comply with a request from the House Committee on Ways and Means to turn over six years of President Trump’s tax returns.Which brings us to the next question: Could these efforts to stiff-arm Congress on access to information be grounds for impeachment of the president? Article 3 of the Articles of Impeachment adopted by the House Judiciary Committee on July 27, 1974, provides:In his conduct of the office of President of the United States, Richard M. Nixon, contrary to his oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives … and willfully disobeyed such subpoenas. The subpoenaed papers and things were deemed necessary by the Committee in order to resolve by direct evidence fundamental, factual questions relating to Presidential direction, knowledge or approval of actions demonstrated by other evidence to be substantial grounds for impeachment of the President. In refusing to produce these papers and things Richard M. Nixon, substituting his judgment as to what materials were necessary for the inquiry, interposed the powers of the Presidency against the the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.Robust disagreement between the executive and legislative branches over access to information and testimony is not unusual, and many prior presidents have been taken to court by congressional committees over the years. The president has the right to look to the courts for a decision on the proper scope of executive privilege and other lawful bases to decline to answer a congressional subpoena for testimony or documents. But if the courts make utterly clear that these arguments have no legal merit, the president must comply. If he does not, or if he pursues every dilatory legal tactic to avoid complying, such a pattern of baseless obstruction of valid congressional subpoenas could provide grounds for an article of impeachment much like the one filed against Nixon.
As we’ve seen, there’s no end to the ugly, corrupt, destructive and bigoted things that President Trump will do in part to please his base — from separating migrant families, to pardoning racist sheriff Joe Arpaio, to supporting a lawsuit that could destroy our health-care system.But there’s another move of this kind that deserves its own category: situations in which Trump tells his voters that he’s undertaking some sort of cruel action that he isn’t actually taking, simply because he believes they’ll thrill to his claim that he is.Call it bread-and-circuses cruelty.In recent days, Trump has asserted his administration is dumping migrant families into sanctuary cities — that is, into Democratic strongholds — particularly in settings where he’s speaking directly to supporters.“Now we’re sending many of them to sanctuary cities,” Trump shouted at his Wisconsin rally. “They’re not too happy about it.” Trump added that sanctuary city officials respond by saying: “We don’t want them.”In an interview on Fox News, Trump similarly claimed that “we’re releasing them into sanctuary cities almost exclusively,” but “they didn’t want them.” Trump insisted this proves that “the whole sanctuary city thing is a big scam.”But it turns out this policy doesn’t appear to be operative at all. Post fact checker Sal Rizzo took a comprehensive look and found zero evidence that the Trump administration is doing this.Amusingly, multiple administration officials — at the Department of Homeland Security and Immigration and Customs Enforcement — declined to respond to Rizzo’s efforts to determine whether they are carrying out Trump’s policy.If a policy that Trump is proudly boasting of were really happening, you’d think officials would be eager to talk it up. Yet they aren’t. What’s more, they aren’t in any rush to confirm that it isn’t happening, either, because that would contradict the boss.Meanwhile, Rizzo contacted officials at several sanctuary cities, and they all said they’ve seen no sign of migrants being dumped on them. But, importantly, they all confirmed that if Trump were to do this, the migrants would be welcome. Officials at multiple sanctuary cities told the Daily Beast the same thing.Which gets at another layer of the absurdity of this whole scam, one that goes to the heart of the substantive debate at issue here.The deeper scamThe original idea behind this threat, as Trump openly declared, was that it would supposedly pressure Democratic lawmakers into giving him legal changes that would make it easier to deport Central American children and detain asylum-seeking families.Those changes would mean the administration would not have to release as many into the interior, pending their hearings. Trump claims this is a draw — they fraudulently apply for asylum, then disappear into the country. To pump this up as a dire crisis, Trump falsely inflates the rate at which they don’t appear, while regularly describing asylum seekers as criminal invaders.Right now, Trump isn’t just claiming migrants are being dumped into sanctuary cities, when they aren’t. This lie also supports a second lie, which is that those cities are rejecting them, when they aren’t.This second idea is supposed to confirm that Trump is right: Yes, asylum seekers getting released into the interior is so horrible that even those hypocritical liberal elitists don’t want them around. But it’s all based on nonsense. All of it.Trump thinks his base will love thisWhat’s notable here is that Trump believes his base will love the idea of migrants’ fates being used as political pawns, and (even though that’s why liberals object to the policy) he believes his base will see this as a way to rub liberal elitists’ faces in excrement. The use of public resources in this fashion is also corrupt — something else Trump likely believes his base will thrill to.Is he right?Well, the new Post/ABC poll finds that backers of Trump are much more supportive of making it harder for migrants to apply for asylum here. It finds that only 30 percent of Americans support this, while a huge majority favors either the status quo or making it easier. But according to the Post polling team, 53 percent of those who approve of Trump favor making it harder. Among those who strongly approve of Trump, that’s 58 percent.This polling question is not a perfect match for Trump’s advertised migrant-dumping policy. But it suggests Trump supporters tend to take a dimmer view of asylum seekers.Regardless, what’s notable is Trump’s presumption that this disgusting policy will thrill his voters. Similarly, Trump has also falsely told Midwestern farmers that aid to Puerto Rico disaster victims would take money from them, thus presuming they’d be prone to believing this. Trump also reportedly claimed of his family separations that “my people love it,” another similar presumption.It’s worth noting that this latest scam comes even as he’s pushing forward with very real punitive measures toward asylum seekers. In addition to efforts to make it harder to apply and qualify for asylum, Trump is now rolling out a new policy to charge some asylum seekers application fees and deny some work permits while awaiting hearings.As immigration advocates point out, this is strikingly cruel, given that they are fleeing horrible conditions at home. It’s also worth noting that Trump cut off aid to their Central American home countries that might improve those conditions.So the bread-and-circuses cruelty toward asylum seekers is being fed to Trump voters, even as his administration continues to inflict very real cruelties on them on multiple other fronts.
South Bend, Ind., Mayor Pete Buttigieg on Tuesday became the latest Democratic presidential candidate to release a decade’s worth of tax returns, showing that he and his husband, Chasten, jointly earned $128,630 in taxable income in 2018 and paid just over $20,000 in taxes.Notably, the returns Buttigieg released — from 2009 to 2018 — included only the end of his time working as a management consultant for McKinsey & Co. He began working for McKinsey in 2007 and left his job in 2010 to run for Indiana state treasurer. In 2009, Buttigieg’s last full year at McKinsey, his taxable income was $136,129.The following year, in 2010, his taxable income was $21,317.In a fundraising email sent to Buttigieg supporters after the release of the tax returns, the campaign sought to cast the candidate’s finances as similar to that of the average voter — almost boring, even.“Here’s what you’ll find: Other than a tour in Afghanistan (when he didn’t take his mayoral salary) and a class he taught at Notre Dame, not a whole lot,” the campaign said. “As you can see, Pete’s not a millionaire.”The campaign later clarified Buttigieg did not teach a class at the University of Notre Dame but received an honorarium for speaking there once.Buttigieg, the 37-year-old mayor of South Bend, the fourth-largest city in Indiana, has broken out of a crowded Democratic field in recent weeks, playing up his youth and his municipal governing experience as would-be strengths in Washington rather than dealbreakers.His lowest income in the past decade was in 2011, the year he ran for mayor, when he had a negative taxable income of -$3,920.Most years, Buttigieg filed the standard deduction, which means his returns show no itemized charitable deductions.In 2017, he had a taxable income of $117,973, which included a $30,000 advance for his book, “Shortest Way Home.” That year, he donated $795 to charity.In releasing Buttigieg’s tax documents, his campaign took a jab at President Trump, who has yet to release his returns and resisted doing so as a 2016 candidate.“Mayor Pete has always played by the rules. He’s paid his fair share, and he doesn’t have a whole lot of investments, which means no conflicts of interest or corporate boards,” the fundraising email said. “And unlike the current president, he doesn’t have anything to hide.”