The Court upheld Daugherty’s contempt conviction, establishing a presumption that congressional investigations have a legislative purpose. This presumption was not overcome by showing that the committee also had another purpose, such as exposure of wrongdoing. This presumption would later restrict the Court’s hand in clear cases of congressional overreaching while investigating communists after World War II.
this summary was a little ambiguous, so I read some of the actual case…
Each house of Congress has power, through its own process, to compel a private individual to appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution. P. 273 U. S. 160.
The two houses of Congress, in their separate relations, have not only such powers as are expressly granted them by the Constitution, but also such auxiliary powers as are necessary and appropriate (Page 273 U. S. 136) to make the express powers effective, but neither is invested with “general” power to inquire into private affairs and compel disclosures. P. 273 U. S. 173.
A witness may rightfully refuse to answer where the bounds of the power are exceeded or the questions are not pertinent to the matter under inquiry. P. 273 U. S. 176.
A resolution of the Senate directing a committee to investigate the administration of the Department of Justice – whether its functions were being properly discharged or were being neglected or misdirected, and particularly whether the Attorney General and his assistants were performing or neglecting their duties in respect of the institution and prosecution of proceedings to punish crimes and enforce appropriate remedies against the wrongdoers, specific instances of alleged neglect being recited – concerned a subject on which legislation could be had which would be materially aided by the information which the investigation was calculated to elicit. P. 273 U. S. 176.
It is to be presumed that the object of the Senate in ordering such an investigation is to aid it in legislating. P. 273 U. S. 178.
It is not a valid objection to such investigation that it might disclose wrongdoing or crime by a public officer named in the resolution. P. 273 U. S. 179.
A resolution of the Senate directing attachment of a witness who had disobeyed a committee subpoena to such an investigation, and declaring that his testimony is sought with the purpose of obtaining "information necessary as a basis for such legislative and other action as the Senate may deem necessary and proper," supports the inference, from the earlier resolution, of a legislative object. The suggestion of “other action” does not overcome the other part of the declaration, and thereby invalidate the attachment proceedings.
This, IMHO, is the case that takes Kilbourn v Thompson’s finding of the need for a legislative purpose and turns it into the need for mere a pretext of legislative pupose. The decision makes it clear that there are limits to Congress’s authority (“8…neither is invested with “general” power to inquire into private affairs and compel disclosures”), but authorizes compelled testimony as long as a legislative purpose can be established.
Sinclair v US merely affirms point 9 above --“A witness may rightfully refuse to answer where the bounds of the power are exceeded or the questions are not pertinent to the matter under inquiry” and McGrain v Daugherty is cited as precedent.
It should also be noted that Sinclair relies upon powers conferred to congress in other parts of the constitution (not art 1 sec 1) – specifically Art 4, sec 3… and that might be relevant to the question at issue here.
And THAT being said, I’m don’t see the particular relevance of Sinclair here – its not about compelled testimony by a witness, its about a subpoena to a 3rd party. And while the investigation itself may not have the necessary legislative purpose, the documents are relevant to the investigation. In Sinclair, the witness was asked questions having nothing to do with the subject of the investigation he’d been called to testify on.
Yes, I know; hence my formulation was, as I carefully indicated, a pun, roughly equivalencing “Lestat” to “L’état.” But, of course, if you have to explain your pun, it’s not a very good one.
This would be true if, and only if, subpoenas in the Watergate investigation were issued only in the context of formal impeachment inquiries. To the best of my recollection, that was not the case.
the Senate select committee that was the first to seriously investigate Watergate was not an impeachment committee. Subpoenas were issued by that committee.
But on Oct 30, 1973 (about a week after the Saturday night massacre) the House Judiciary Committee authorized its chairman to begin issuing subpoenas specifically in conjuction with an impeachment investigation. Lots of subpoenas were issued – including most famously, a subpoena for additional tapes in April 1974 – including the “smoking gun” tape that Nixon eventually released as a result of US v Nixon which precipitated his resignation. (US v Nixon did not, however, involved the congressional subpoena, it was a Jaworski subpoena more much the same material).
But IMHO, there are lots of instances of “oversight” investigations of presidents — its only Watergate and Whitewater that eventually lead to impeachment, and those are the two Mehta cited. Coincidence? Perhaps…but perhaps not.
OK, but here’s the thing. You’ve making the argument that the subpoenas at issue are an abuse of Congressional power, and are so as long as they are not issued in the context of a formal impeachment inquiry. Even one example of a valid (similar) subpoena would at the very least call that argument into question. That might include the pre-impeachment Senate select committee hearing or any of the others you have mentioned.
I read the reply brief. I find the argument “plausible”, largely based on my own ignorance of applicable standards. Have you seen the oppo brief? Do you have a link?
here’s the link – haven’t read it yet – you made me look it up!
Just to be clear-- “abuse” is my opinion. Under current precedent, the subpoena’s are valid, because under McGrain you need only the thinnest pretext of judicial purpose. I personally think that precedent has been so abused in the past (think benghazi, and benghazi, and benghazi…) that its ripe to be, if not overturned, at least modified to some extent.
In fact, I think that the McGrain precedent may have contributed to the substantial expansion of executive privilege in “Oversight v Holder.” Prior to “Oversight”. “deliberative” executive privilege was considered extra-constitutional – based on British common law and not the text of the constitution itself. “Oversight” found a like constitutitional basis for “deliberative” privilege. Moreover, prior to “oversight” deliberative privilege was restricted to deliberations that happened while a bill was being written/considered. “Oversight” said that “deliberations” concerning how the executive branch should respond to the reaction to the bill was covered by “executive privilege”
IMHO, that’s nuts. But its also understandable, given that under McGrain, Congress could demand anything under the slightest pretext – and the only way to limit Congress was expansion of executive privilege.
One thing struck me – while the temporary injunction was requested for all the parties (i.e. ivanka, eric, jr, etc) the brief references only “Mr Trump”. This is odd to me, because the original request for a prelim injunction was for all the parties – and AFAIK, the circumstances concerning each plaintiff has to be considered when determining questions of irreparable harm. Perhaps the House thinks their case is so strong that it doesn’t matter who the plaintiff is?
Maybe so, in general. Given the context of this particular, um, “family business”, and its deliberately opaque and complex financial arrangements, however, that is very likely surmountable.
I haven’t read the whole brief yet, but I noticed something in the first few pages:
… the Committees are investigating serious and urgent questions concerning the safety of banking practices, money laundering in the financial sector, foreign influence in the U.S. political process, and the threat of foreign financial leverage, including over the President, his family, and his business.
Opp. br. at 1-2.
That bolded section is conspicuously absent from the reply brief, and is of course at the heart of the proceedings. Is it your position that this cannot be investigated by Congress absent the initiation of a formal impeachment proceeding? Or that its investigative powers into such subjects should be severely curtailed absent such?
That’s a very good question. If you put a gun to my head, I’d say I think that a Congressional intelligence committee should be able to demand that the intelligence community investigate any such suspicions, and provide not just briefings, but all related materials.
If the committee thinks that punches are being pulled,
Congress has the right to investigate the operation of the intelligence community to make sure that statutory protections are sufficent.
Congress can launch an impeachment inquiry.
I just don’t think that the legislative power should be used to investigate individuals per se. Personally (i haven’t done the research on this) I suspect that the reason the prohibition on Bills of Attainder was included by the framers because they didn’t want Congress to use its power to “punish” people – and that would include embarrassing them politically.
I don’t like political investigations – either by Congress, or by “the authorities” regardless of whether a pretextual justification exists.
I agree with the general principle of limits on congressional power to investigate. I think the bills of attainder issue might be a stretch.
As I’ve already noted to @sniffit – if we strip away the rhetoric, we appear to be arguing about the scope of Congress’s investigative power in two possibly different contexts: “ordinary” legislative investigation and formal impeachment inquiries. The legal commentators I’ve read recently seem mostly to come down on the side that the Congress’s power is significantly greater in the impeachment context than in the “ordinary legislative” context, although it’s usually included as a throwaway line without any real legal (or other) discussion of the details of that difference.
There are two realities to consider, however.
First: We are dealing with a President who has a long and sordid business career, who lied about his ties to foreign adversaries during the campaign, and who very specifically lied about his financial dealings with them. His family members are intimately involved in the conduct of those businesses. He keeps everything secret and uses litigation as a threat and a weapon. He torched his relationships with every single US bank by defaulting on loans, and was forced to go, first to Deutsche Bank, where the dealings were shady enough, and then to the Russian oligarchs (as well as others, most likely, such as the Sa’udis). Those foreign entanglements, needless to say, pose grave risks to national security and other national interests. I don’t see that an impeachment inquiry is necessary to investigate them.
The Republicans first weaponized and then kneecapped impeachment with the Clinton affair. They attempted to use it as a weapon, and, failing, injected a new distaste for the procedure in the press (who happily complied) and the public at large. Having used it transparently as a political tool, they created the impression – again, happily aided by the press – that that’s all impeachment ever is. They then proceeded to nominate two Presidential candidates who turned out to be highly impeachable under any standard.
These are political and legal realities that must be considered in any discussion of impeachment at this or any other stage.
Of course they should be investigated. The question is whether Congress is the right body to investigate it under the constitution. And IMHO, a crucial aspect to consider when answering that question is “What would the founders say”. How would they have wanted a Donald Trump handled in 1810?
I agree. But the GOP has also grossly abused oversight powers. In other words, regardless of how Democrats try to investigate Trump, they will be doing so using powers that the GOP has abused. As a result, the public is primed to accept accusations of abuse of power as plausible.
Agreed. Which is why “framing” is so essential.
Trump is trying to frame the myriad “oversight” investigations of him as “abuse of power” – “presidential harassment” or “angry dems trying to overturn the election” or “purely partisan efforts to embarrass him”. The Democrats don’t seem to have any effective response to this framing.
And IMHO, that is because what the Democrats are doing fits so well into the “presidential harassment” framing. There are 20 different congressional investigations of Trump and his administration, involving over a dozen standing committees. Most of these investigations have a “legitimate legislative purpose”, and most of them are happening now because the GOP did nothing for the last two years. But the optics are horrible, regardless of how justifiable each investigation may be individually.
Impeachment may create PR problems, but so will the current strategy. The difference between the two is that impeachment can provide a focus – an overriding framework, and a means to control the narrative.
The current strategy is yielding nothing – or next to nothing. Every day, the headlines are about subpoenas, and threats of contempt, and now court cases. And every day, the first question every Democratic leader is asked is “what about impeachment”?
You’re arguing on two different tracks, but conflating the two here, which muddies the waters rather unnecessarily.
Framing is one thing, and can be countered by appropriate framing on our side. I agree that we’re not doing that well. We’ve never been that good at it. Republicans have become masters of this, through the “work” of Frank Luntz, Lee Atwater, and so on. They have perfected framing that appeals to the lizard brain. We have a tough time with that, partly because we’re trying to appeal to other sections of the brain.
But you were also arguing that the moving parties were making a good factual and legal argument. IOW, it’s not just that the Rs can “frame” this as an abuse of Congressional power, but that these subpoenas actually do constitute such abuse. Example:
So I’m focusing now on the facts and the law, not the “framing”. Especially because the facts and the law show that the “framing” is bullshit, as Republican framing so often is.
They certainly did not “blow it off” in court filings. The legislative purposes are stated in detail in the opposition brief, and having read it now, it’s my conclusion that they carry the day. The purposes are legitimate and urgent, and amply supported by the facts of the case.
[quote]The Committee on Financial Services, pursuant to its broad oversight and legislative jurisdiction over “[b]anks and banking, including deposit insurance and Federal monetary policy,” as well as “[i]nternational finance,” Rule X.1(h)(1), (5), Rules of the U.S. House of Representatives (116th Cong.) (House Rules), is investigating serious issues regarding compliance with banking regulations, loan practices, and money laundering. As Chairwoman Maxine Waters recently explained, “[t]he movement of illicit funds throughout the global financial system raises numerous questions regarding the actors who are involved in these money laundering schemes and where the money is going.” Those concerns are “precisely why the Financial Services Committee is investigating the questionable financing provided to President Trump and the Trump Organization by banks like Deutsche Bank to finance his real estate properties.”
[/quote]
Note that footnotes and internal citations are omitted from all quotations from the brief.
And that’s only part of the rationale articulated in the briefs applicable to the Financial Services Committee. Beyond the additional reasons cited regarding that committee, the brief also covers the Intel Committee:
The House Permanent Select Committee on Intelligence has broad jurisdiction to inquire into “[i]ntelligence and intelligence-related activities.” The Committee is charged with oversight of the Intelligence Community and all intelligence-related activities and programs of the United States Government. To that end, the Committee is investigating efforts by Russia and other foreign powers to influence the U.S. political process during and since the 2016 election—including financial leverage that foreign actors may have over President Trump, his family, and his business—and the related counterintelligence, national security, and legislative implications. The Committee is also evaluating whether the structure, legal authorities, policies, and resources of the U.S. Government’s intelligence, counterintelligence, and law enforcement elements are adequate to combat such threats to national security.
More specifically, the Committee is investigating, among other things: (1) “[t]he extent of any links and/or coordination between the Russian government, or related foreign actors, and individuals associated with Donald Trump’s campaign, transition, administration, or business interests, in furtherance of the Russian government’s interests”; (2) “[w]hether any foreign actor has sought to compromise or holds leverage, financial or otherwise, over Donald Trump, his family, his business, or his associates”; and (3) “[w]hether President Trump, his family, or his associates are or were at any time at heightened risk of, or vulnerable to, foreign exploitation, inducement, manipulation, pressure, or coercion, or have sought to influence U.S. government policy in service of foreign interests.”
Notably, these citations cover not only Trump, but his kids. Again, this is fact-based, and based on the entanglement of said kids in TTO’s corrupt business dealings and potential national security threats and compromises.
[quote]For decades, Mr. Trump’s business interests have intersected with Russia-linked entities and individuals, including oligarchs with ties to President Vladimir Putin. Since 1998, Deutsche Bank—which also had ties to Russian state institutions—served as a lender of last resort for Mr. Trump, extending loans totaling more than $2 billion. Around 2006, Mr. Trump embarked on a multi-year spending spree, ultimately spending more than $400 million in cash on various properties. These cash outlays occurred during a period in which the Trump Organization was reportedly experiencing significant cash inflows from Russian sources. It has also been reported that wealthy Russians and individuals from former Soviet states used Trump-branded real estate to park—and in some cases launder—large sums of money for over a decade. More recently, Mr. Trump secretly pursued a lucrative licensing deal for Trump Tower Moscow—a deal that would have required Kremlin approval—through at least June 2016, including after Mr. Trump had effectively secured the Republican presidential nomination. At the same time, Mr. Trump was advocating policies favored by Russia and praising President Putin. It is unclear whether the Trump Tower Moscow deal remains latent.
The Committee is examining whether Mr. Trump’s foreign business deals and financial ties were part of the Russian government’s efforts to entangle business and political leaders in corrupt activity or otherwise obtain leverage over them. On March 28, 2019, the Committee held a hearing to “discuss how the Kremlin uses financial leverage and corruption as tools of intelligence operations and foreign policy,” including “the use of financial entanglements as a means of compromise.” Former U.S. Ambassador to Russia Michael McFaul testified that “in parallel with Putin’s use of money, corruption, and property rights as instruments for governing inside Russia, the Russian government instructs its economic actors to make deals with foreign entities to establish increased leverage and influence within these countries.” Ultimately, the Committee’s investigation of these matters will inform its “plans to develop legislation and policy reforms to ensure the U.S. government is better positioned to counter future efforts to undermine our political process and national security.”[/quote]
This is not even a close call when it comes to any reasonable definition of “legitimate legislative (or oversight) purpose.”
Again, they didn’t fail to do so. Whether or not it was stated in the subpoena (and you’ve not clearly stated that such purposes must be stated in the text of the subpoena itself, nor provided any authority for such a claim), it’s stated now.
That doesn’t qualify as a legislative purpose – it doesn’t answer the question “what law are you considering passing or revising, or what appropriations are you considering?”
That’s a very narrow definition of legislative purpose – unacceptably so, imho. Do you have legal authority that “legislative purpose” should be so narrowly construed?
Having read both briefs, this is not a close call, either factually or legally. It’s not even close to an abuse of power. As for “framing”, that’s a messaging issue, not a legal or factual one.
Afraid I’m not willing to go with your HO on this one. The clause says exactly what it says – Congress can’t pass a self-executing (or self-enforcing) law targeting an individual or group for deprivation of life, liberty or property. Congress doesn’t have the power to effect such deprivation directly. That’s the function of the judiciary. In no way does it preclude investigation pursuant to a valid legislative purpose – which as I’ve demonstrated in other replies to you has been met, and met amply.
This is where your claim falls off a cliff. Again, once a valid legislative purpose has been articulated – and in this case, it absolutely has been – then political embarrassment as a consequence, especially for individuals whose corruption is part of what’s being investigated and whose corruption might be exposed in the investigative process pursuant to those legitimate legislative aims – is, to use a technical term, tough shit.
And your position that the justification here is “pretextual” is based on what? Under the facts of this case, as I and the committees have laid out?
By the same token: The current strategy may create PR problems, but so will impeachment. The difference between the two is that impeachment sets a clock ticking, possibly artificial, but there in public perception, that the impeachment must proceed quickly. It also sets up a confrontation with a hopelessly partisan Senate controlled by one of the most cynical partisan hacks ever to occupy a Senate seat, to say nothing of the Majority Leader position. It sets up a risk that a hasty impeachment that’s followed by tabling a motion to vote out articles of impeachment, or a partisan Senate acquittal, will be, ahem, framed again by Individual-1 and his enabling political party as TOTAL EXONERASHUN!!!1!, further jeopardizing the wresting of control of government from this hopelessly and dangerously compromised individual and party.
The problem is not the focus, it’s that (1) we’re not effective at messaging, explaining that focus, and (2) the press is of course primed for narratives like “Dems in disarray” blah blah. They would be replaced by different frames should impeachment become the avenue of investigation. It’s a mistake to believe that those frames would be any less effective in the current political and media context.
Glad we’re squared away on that. That was not your argument earlier, however, at least insofar as you claimed that the reply brief was a “pretty solid case for a preliminary injunction” and a “really good argument”, because the basis of the reply belief was that there was no legitimate legislative purpose, and you argued as much yourself.
Good question. Certainly they would be appalled by the abuse of power. I imagine they would understand that a compromised individual with a compromised party might hire a compromised AG who would at best conduct a compromised investigation. The “intelligence community” (which, ultimately, functions under the executive) would be unknown to them. So who would investigate? Would they require this inquiry be conducted pursuant to the impeachment power as opposed to legislative? Maybe, unless we told them how the political party system (not yet known to them at the time of the framing, although reasonably well known by, say, 1801) was operating, and how one party had managed to kneecap the impeachment power. Or, then again, maybe not. Part of the Framers’ Big Idea was to increase the legislative power vis-a-vis the Crown, or rather, the Executive. So I don’t think they’d be bothered overmuch by the Congress investigating the Executive, using whatever powers were most effective in the context.
Right, so it doesn’t matter that much which power is used, and needless to say, either avenue of inquiry will be framed as “presidential harassment” by the compromised party.
you’re right of course. But just to be clear, when I say that something is a “good argument”, I’m saying that its plausible enough to force a hearing (and in this instance, a preliminary injunction). Given the current supreme court, I try not to predict what a final outcome would be. And again, I want to emphasize that I think the subpoenas would pass muster — because the bar is so low when it comes to “legislative purpose” — I just think that the precedent SHOULD be modified/overturned.
That is correct. But I was referring to “when asking for the materials”. The original ask provided no legislative purpose (although I can’t find a copy of the letter sent to Deutsche bank – so I could be wrong.)
the legislative purpose does not have to be stated in the subpoena or even in accompanying documents. Under McGrain, it merely needs to exist. IIRC McGrain goes so far as to say that the courts should presume a legislative purpose exists when a subpoena is issued (implying, to my ear, that the burden for proving a lack of legislative purpose lies with the person resisting the subpoena.)
In the Mazar’s case, there was no mention of a “legislative purpose” in the original ask letter, and only a general claim to one when Cummings sent a “pre-subpoena” letter to the committee asking for comment on the subpoena…
As to what happened in the hearing, the reporting I read has the House asserting that “informing the public” is sufficient to justify a subpoena
Mehta also questioned aspects of the House’s legal arguments, asking whether Congress was claiming blanket authority to investigate matters by claiming a duty to “inform the public.”
“It really does open the door to the accusation, perhaps valid or not, that this really is an effort — if not to harass the president — then to get into his private affairs for political purposes, if there is no clear line as to what this investigation is about,” Mehta said. “How do I draw lines to test, even if it’s a soft test, the validity of what you’re doing? ”
Letter said Congress’s function to “inform the public” about the president is a valid basis for the subpoena, citing investigations into the 2001 terrorist attacks on New York and Washington, the origins of the Iraq War and President Bill Clinton’s Whitewater land dealings.
The closest Letter gets to stating a purpose than concerns actual legislation is this…
But he said the House also had obvious legislative purposes to oversee the function of laws governing the financial disclosures of public officials and avoidance of conflicts of interests; the handling of presidential records; and the prevention of foreign governments holding hidden financial influence over American elected officials.
During the hearing, Mehta also asked pointed questions of the House Democratic side. Mehta noted that Cummings suggested at the outset of his subpoena request that he wanted to “determine whether the president may have engaged in illegal conduct” before taking office.
“This is not an impeachment proceeding. What’s the basis to investigate illegal conduct before his tenure in office?” Mehta wondered.
Letter replied hypothetically that there could be significant questions about whether Trump was under the thumb of a foreign power.
Taken together, this suggests to me that Mehta wanted Letter to say that the subpoena was tied, in some fashion, to actual or potential legislation. And Letter wouldn’t say that. All he would say is that there were “obvious legislative purposes to oversee…”. Which is probably (ultimately) sufficient under McGrain, but I think that Mehta would have liked more.
I was referencing the case in front of Judge Mehta. That’s the Mazar’s case. The filings you are referring to are from the Deutsche bank case – separate and distinct cases, involving different committees.
A resolution of the Senate directing a committee to investigate the administration of the Department of Justice – whether its functions were being properly discharged or were being neglected or misdirected, and particularly whether the Attorney General and his assistants were performing or neglecting their duties in respect of the institution and prosecution of proceedings to punish crimes and enforce appropriate remedies against the wrongdoers, specific instances of alleged neglect being recited – concerned a subject on which legislation could be had which would be materially aided by the information which the investigation was calculated to elicit.
McGrain is especially relevant because it concerns a case in which the ORIGINAL resolution regarding the investigation made no mention of a legislative purpose, and “legislative purpose” was only tangentially mentioned in a second resolution.stating the purpose of the investigation (“obtain information necessary as a basis for such legislative and other action as the Senate may deem necessary and proper”). A lower court had ruled that this was insufficient – the Supremes decided that “necessary as a basis for such legislative…actions as the Senate may deem necessary and proper” was all the “legislative purpose” that was needed.
The committee argued that it was investigating numerous constitutional, conflict of interest and ethical questions. For example, the committee noted $75 million in debt connected to Trump International Hotel and Tower in Chicago and $50 million in assets of Trump International Hotel in Las Vegas. Those figures were listed in Trump’s government financial-disclosure forms beginning in 2015, but not in a 2012 statement from Mazars that Cohen provided the committee, according to the committee response.
Oversight Committee Chairman Elijah Cummings, D-Md., has said the committee sought Trump’s financial documents to determine whether Trump has accurately reported his own finances. Trump’s former personal lawyer, Michael Cohen, who entered prison for three years this month for crimes including lying to Congress, told the committee in February that Trump routinely inflated his holdings to obtain loans and reduced his estimates to avoid real-estate taxes.
[…]
The committee said its legislative jurisdiction includes the 1978 Ethics in Government Act, “which requires federal officials to publicly disclose financial liabilities that could affect their decision-making,” and legislation the House approved this year called HR 1, which would require the president to “divest of all financial interests that post a conflict of interest.”
The quoted newspaper article is not clear about whether that statement was in briefing to the court or not, but I cannot imagine it would not have been. Omitting it would be remarkably poor lawyering. Although it may well have been part of oral argument, because
Consovoy argued that at least HR 1 was unconstitutional because of the demands it put on the president, and shouldn’t be considered justification for the subpoena.
Which is rather rich, but rather off topic. Judge Mehta correctly blew that off by noting that a law should be presumed constitutional until challenged (and needless to say, this is a potential law, not an actual one, but given that HR1 passed the House, it’s clearly an exercise of the legislative function.
Mehta next addresses the final substantive prong of the committee’s investigation—what the relevance is of potential illegal conduct before Trump was in office. Letter responds that Congress has a role in determining whether the president is beholden to foreign governments—for example, foreign governments may know he has engaged in bank fraud and could hold that information over the president in his official decisions.
Again, I don’t see why that alone doesn’t carry the day.
As noted above, that is incorrect. Plainly HR 1 as well as the Ethics in Government Act were discussed.
That also means that
[quote=“paul_lukasiak, post:209, topic:87893”]
The closest Letter gets to stating a purpose than concerns actual legislation is this…
But he said the House also had obvious legislative purposes to oversee the function of laws governing the financial disclosures of public officials and avoidance of conflicts of interests; the handling of presidential records; and the prevention of foreign governments holding hidden financial influence over American elected officials.[/quote]
is tendentious, if not outright false.
Moreover, it’s not at all clear that the House’s jurisdiction should be so narrowly circumscribed. Part of the “structure of the Constitution” (as Prof Tribe is so fond of discussing) must be a power of a separate branch of government to investigate if the branch to which that power is “typically” delegated refuses to do so, is compromised, and particularly, as in this case, is itself under investigation.
I should add that the brief (in Deutsche Bank) also explains why the McGrain standard is correct. Investigations are preliminary to legislation. That legislation may or may not ever happen – that’s part of the purpose of those investigations: both whether the legislation comes into existence at all, and what the form and content of that legislation might would be. It’s necessarily extremely inchoate. Congress has no duty to explain in advance to the judiciary how the legislation will turn out. That, too, is part of the separation of powers.
I asked you for authority that “legislative purpose” should be construed narrowly as being limited to the question “what law are you considering passing or revising, or what appropriations are you considering?” In response, you cited McGrain. But McGrain construed Congress’s power broadly. In any event, the standard was more than met, both here and in the Deutsche Bank case. Even a narrowing of McGrain wouldn’t invalidate these subpoenas, unless the SCOTUS rules, as Mr. Letter described in this case, that “Congress has little constitutional power and is fundamentally a nuisance.” That for sure ain’t what the Framers had in mind.
That is a problem of expectations management. If at the outset you say “this is an impeachment investigation, we may or may not send articles of impeachment to the Senate as a result” the GOP will doubtless raise holy hell – but Dems can go right back at them – and accuse them of “aiding and abetting Trump’s crimes on behalf of Russia” for instance. Which will, of course, make the GOP raise even holier hell – but screw them!
What is most important here is that the Dems will have complete control of the process. At any point, if it looks like the public is turning against the Dems, they can simply announce “we’re pausing [or ending] the impeachment investigation, because its too close to the election” and pretty much make the whole thing disappear.
I don’t think we disagree that much. Messaging is crucial, and the media has its own favorite narratives. Done properly, impeachment can provide the focus necessary to create and sustain new narratives. For instance, the “impeachment investigation” could hold hearings only on Thursday and Friday — Mon-Wed Dems could (at least try) to emphasize its legislative priorities.
I think you are conflating two different cases. I think the preliminary injunction in the Deutsche bank case has a shot because of the Federal Bank Privacy Act – the question of whether that law applies to Congress is probably sufficient to justify its own hearing – and thus justify a preliminary injunction pending that hearing. It really depends on what the judge wants to do — if he wants to fast track the case, he’ll nix the injunction. Otherwise, we’re probably in for a long summer in THAT court alone. (and then there are the appeals, and en banc appeals, and appeals to the Supremes…)
The other case is the Mazar’s case. In that case, the House seems to be fighting to establish new precedent that expands the meaning of “legislative purpose” beyond “having SOMETHING to do with passing/amending a bill of some kind”. The judge doesn’t seem inclined to do that, and managed to get the House lawyers to say the bare minimum necessary to rule based on McGrain – but I bet the judge left the record open so that the House could say something about possible legislation.
re: The founders – fair enough. I wish you could have considered a “Donald Trump” in isolation, rather than asking
that the founders be told all about how the political parties operate, etc. But perhaps “Donald Trump” cannot exist in isolation…
true, but personally, I’d rather be able to say “Yeah, we ARE coming after you, you piece of shit!” than pretend that I cared about whether we should be writing legislation regarding accounting firm practices pursuant to non-binding financial “estimates”
