Author Topic: A Lifelong Republican Ex-Judge Just Called For Trump’s Impeachment  (Read 1002 times)

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Re: A Lifelong Republican Ex-Judge Just Called For Trump’s Impeachment
« Reply #15 on: October 17, 2019, 12:27:09 pm »

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Re: A Lifelong Republican Ex-Judge Just Called For Trump’s Impeachment
« Reply #16 on: October 22, 2019, 10:37:28 am »
Tuesday, 22nd October 2019
Whistleblowers and the Rule of Law
by Reuben A. Guttman

In the United States, law students learn that law is both substance and process. Substance is the proscription or obligation and process is the mechanism for enforcing compliance. Absent a compliance enforcement mechanism, the substance is of no consequence. An unenforced law is tantamount to no law at all.

Americans obsess about the process mechanism’s fairness and enforcement logistics.  Consistent with our entrenched mistrust for government, evidenced by the checks and balances of our three-branch government, we do not leave matters solely in the hands of politicians. Our laws also allow for citizen participation in enforcement. Major pieces of legislation including our civil rights, environmental, antitrust, and housing laws allow individuals to bring suits to enforce law. Not only do citizen suits leverage compliance enforcement, they also ensure compliance when government prosecutors lack the resources or the political motivation to enforce the law.

Our legal history is replete with examples of sweeping reform generated, not only by legislative bodies, but also by individuals and their lawyers making themselves heard through the legal system. Landmark cases including Brown v. Board of Education of Topeka[1], Loving v. Virginia[2], and Cleveland Board of Education v. LaFleur[3] were initiated by individuals and led to the eradication of discriminatory practices. These cases are testaments to the power of one person represented by (at times) overworked and inexperienced lawyers motivated by the fear of failure and the passion to do good.

Our rule of law is special because it provides mechanisms for individuals to effectuate change. Such mechanisms are essential when elected officials fail to act or when the accepted practices of reputable institutions – including large corporations – harm the voiceless. The people who ask hard questions and shed light on impropriety are called “whistleblowers.” A myriad of laws protect whistleblowers from retaliation and some laws – including the qui tam provisions of the federal False Claims Act – reward considerable risk-taking. We owe a debt of gratitude to those who stuck their neck out and blew the whistle; they are responsible for safer products, a healthier environment, and a more trustworthy government.

Now Congress – relying on a confidential report made by a whistleblower to the Office of the Inspector General of the Intelligence Community– is investigating whether the President sought the help of the Ukrainian government to investigate his political opponent, Joe Biden. The process established by the rule of law is now in motion. The inspector general investigated the whistleblower’s concerns and the matter has moved forward to another branch of government for oversight and possible corrective action. This is fully consistent federal law.[4]

For the important role they play, whistleblowers should be considered more American than apple pie. But that is not how they are always treated. Consider President Trump’s tweet from October 9, 2019: “[t]he Whistleblower’s facts have been so incorrect about my no pressure conversation with the Ukrainian President, and now the conflict of interest and involvement with a Democrat Candidate, that he or she should be exposed and questioned properly. This is no Whistleblower...”

President Trump fails to appreciate the process governing whistleblowing, let alone intelligence community whistleblowing. If he wanted to educate himself, he need look no farther than his own appointee’s website. The Office of the Director of National Intelligence website contains this message from Inspector General Michael Atkinson:

“Whistleblowing has a long history in this country. Over 240 years ago, on July 30, 1778, the Continental Congress unanimously enacted the first whistleblower legislation in the United States, proclaiming that "it is the duty of all persons in service of the United States, as well as all other the inhabitants thereof, to give the earliest information to Congress or other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which comes to their knowledge." To this day, Federal law (including the Constitution, rules, and regulations) encourages, consistent with the protection of classified information (including sources and methods of detection of classified information), the honest and good faith reporting of misconduct, fraud, misdemeanors, and other crimes to the appropriate authority at the earliest time possible.”

Consistent with efforts to chill the whistleblowing tradition, the President of United States now demands disclosure of the whistleblower’s identity, an examination under oath, and exposure of biases. Here again, the President fails to appreciate the role of whistleblowers. Sometimes – as is the case here – whistleblowers are merely a catalyst causing regulators or legislators to scrutinize a situation, gather evidence, and judge the facts against the law. The whistleblower may raise an issue based on information that would be inadmissible under the Federal Rules of Evidence. It is the ensuing investigation, document collection, and witness interviews that matter. Afterwards, whistleblower testimony or bias is irrelevant.

By analogy, the whistleblower is no more than a booster rocket propelling the space shuttle into orbit, or in the legal world, a trial. A whistleblower may very well be motivated by bias; perhaps they did not get all the facts right. Yet, what is put before the trier of fact is not necessarily whistleblower testimony, but evidence gathered because a whistleblower caused an investigation.

In the current situation, the whistleblower’s allegations generated enough concern to motivate an investigation of what may be unimpeachable admissible evidence. Whatever the outcome of the Congressional investigation, we will have seen the rule of law at work, with its role for individuals and countervailing branches of government. It is a system where -- on any given day – the nation’s most powerful person can be called to account by an individual who thoughtfully raised questions. For those studying these current events, this is once again a lesson in how individual whistleblowers are essential to our legal tradition.

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Re: A Lifelong Republican Ex-Judge Just Called For Trump’s Impeachment
« Reply #17 on: November 14, 2019, 01:39:42 pm »

As the impeachment inquiry proceeds, here's what is on the cocktail menu at Washington D.C.'s Capitol Lounge during these troubling times:

« Last Edit: November 14, 2019, 03:12:56 pm by Battle »

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Friday, 16th November 2019
Executive Privilege Should Have No Power When It Comes to an Impeachment

by Jonathan Shaub

The House of Representatives has now begun the public phase of its impeachment process.

But during its closed-door sessions last week, more than 10 current and former executive-branch officials — including Acting Chief of Staff Mick Mulvaney and the top National Security Council lawyer, John Eisenberg—refused to show up.

Each had been subpoenaed to appear.

Compliance with a subpoena is not normally optional, of course.

But the witnesses declined to appear, at the Executive Mansion’s direction.

The Executive Mansion argued that the Constitution’s separation of powers prohibits Congress from requiring close presidential advisers, such as Mulvaney and Eisenberg, to testify, and prohibits Congress from requiring any executive-branch official to appear for a deposition without a government lawyer present, two “prophylactic” constitutional doctrines—one old and one new—that the executive branch says are necessary to protect executive privilege.

These doctrines purport to allow current and former executive-branch officials to refuse to comply with a congressional subpoena.

But they have never before been applied to a formal impeachment inquiry.

Nor has executive privilege.

When the Democrats reclaimed the House of Representatives in the 2018 Mid-Term election(s), a common refrain was that the terrain in Washington had shifted.

The Democrats would now have the constitutional authority to conduct oversight of the Trump administration, including by issuing subpoenas to demand particular documents or to require witnesses to testify.

Understanding that shift, Donald Trump said he was ready to adopt a “warlike posture” in response.

The warlike posture, or at least posturing, did not take long to emerge.

In April, Trump announced that his administration would “fight all the subpoenas.”

And, amid a flurry of oversight on various matters, the administration responded aggressively to information requests and suggested it would not comply.

But behind the posturing, the letters sent from executive-branch agencies and the Executive Mansion to congressional committees sounded very similar to letters sent during the Obama administration to Republican-controlled House committees and, before that, during the George W. Bush administration to Democratic-controlled House committees.

In the past, after the bluster and posturing came compromise, at least in the large majority of disputes.

This time, however, neither side intended to back down.

What the ensuing months have demonstrated is that the executive branch can rely on executive privilege, along with a constellation of doctrines arising out of it, to render congressional oversight virtually impotent, at least as long as officials are willing to follow the Executive Mansion’s direction not to appear.

The roots of the executive branch’s constitutional theories are long-standing and, in many instances, bipartisan.

The administration’s claim that former Executive Mansion Counsel Don McGahn is absolutely immune from compelled testimony, for example, garners almost all its support from a 2014 opinion issued by the Department of Justice’s Office of Legal Counsel (OLC) during the Obama administration.

As the clashes between the two branches have escalated, however, the Trump administration has expanded these existing doctrines to stake out aggressive new positions about executive privilege, immunity, and the limits of Congress’s oversight authority.

And the administration has developed new prophylactic rules that it argues are constitutionally required to protect executive privilege, including that a witness subpoenaed to appear for a deposition need not comply with the subpoena if a government lawyer is not permitted to attend.

But the House has now formally authorized an impeachment inquiry.

Impeachment and oversight are distinct constitutional authorities belonging to Congress, and there is good reason to think that impeachment, unlike everyday oversight, fundamentally alters the balance of power between the two branches.

As Raoul Berger, the conservative legal historian and scholar, wrote in 1974, the impeachment power “constitutes a deliberate breach in the doctrine of separation of powers, so that no arguments drawn from that doctrine (such as executive privilege) may apply to the preliminary inquiry by the House or the subsequent trial by the Senate.”

Office of Legal Counsel issued a letter opinion on November 1st arguing, in essence, that impeachment does not change anything.

And in a subsequent letter supporting Eisenberg’s immunity, it claimed that

“the commencement of an impeachment inquiry only heightens the need to safeguard the separation of powers.”

OLC’s letter opinion reasoned that the House of Representatives is akin to a grand jury when it exercises its constitutional impeachment authority, and that courts have applied executive privilege to demands for information from grand juries.

It relied on the foundational Supreme Court decision on executive privilege — United States v. Nixon — which involved a grand-jury subpoena to President Richard Nixon for the Watergate tapes.

Although the Court held that the tapes did enjoy a presumptive privilege, it ultimately concluded that the privilege was overcome by the grand jury’s need for them.

But, as some advocates have been known to remark about Supreme Court briefs, the “bodies”— that is, the unfavorable precedents or issues the author wants to gloss over—are buried in the footnotes.

In the five-page letter opinion, the “body” is the entire historical understanding of executive privilege in the context of impeachment.

And that history is buried and dismissed in the first footnote.

There, the opinion quotes a prior Office of Legal Counsel memorandum on impeachment stating that “precedents relating to the subject of executive privilege in presidential impeachment are meager, confused and inconclusive.”

But, unlike a traditional Office of Legal Counsel opinion, the letter opinion omits any direct discussion or analysis of the wealth of historical information and presidential statements about the application of executive privilege to impeachment.

What’s the right answer, then?

May the president assert executive privilege to withhold information during an impeachment inquiry?

The answer, as a historical matter, is almost certainly no.

(This conclusion and others in this essay are solely my personal views and are not made in my official capacity as Assistant Solicitor General for Tennessee.)

The authority of the House to demand information as part of an impeachment inquiry arises out of the Constitution’s declaration that the House of Representatives shall have the “sole power of impeachment.”

And that constitutional authority derives directly from the authority of the House of Commons in the English Parliament.

James Wilson, one of the principal architects of the Constitution, described the House of Commons as having the “character of grand inquisitors of the realm.”

He recognized that “the proudest ministers of the proudest monarchs have trembled” at a censure from the House of Commons, and “have appeared at the bar of the house to give an account of their conduct, and ask pardon for their faults.”

For that reason, George Washington and his advisers agreed that the president’s authority to withhold documents from the House would not apply to impeachment.

In one instance, the House had requested information relating to the controversial Jay Treaty, which had led some to call for Washington’s impeachment.

Washington and his advisers concluded that the president had the constitutional authority to withhold the documents unless the House opened a formal impeachment inquiry.

And a number of other presidents who have asserted their constitutional authority to withhold documents from Congress at times have also recognized that an impeachment inquiry would be different.

President James K. Polk probably stated it most clearly, opining that in the exercise of the impeachment power, the House could “penetrate into the most secret recesses of the Executive Departments … command the attendance of any and every agent of the Government, and compel them to produce all papers, public or private, official or unofficial.”

And President Theodore Roosevelt once ordered an official to turn over to him all the papers demanded by Congress, and then informed a senator that “the only way the Senate or the committee can get those papers now is through my impeachment.”

Two other past statements bear particular mention.

Attorney General Robert Jackson’s memorandum on the confidentiality of law-enforcement files remains the seminal document on which the executive branch relies to withhold such information from Congress.

But at the end of the analysis, Jackson noted,

“Where the public interest has seemed to justify it, information as to particular situations has been supplied to congressional committees.”

And he then identified one such situation:

“Pertinent information would be supplied in impeachment proceedings … for the good of the administration of justice.”

Nixon, not one to cede executive authority lightly, argued through his personal counsel that he did not have to provide information subpoenaed by a Senate committee.

But he acknowledged that a request from the House in an impeachment inquiry would be different.

He reasoned that the president “is answerable in only one constitutional proceeding . . . the deliberate action of the whole Congress under the Impeachment Clause.” 

And although he initially suggested he may attempt to assert executive privilege in the Watergate investigation, before impeachment proceedings had begun, he eventually recognized it was not available.

Given this history, how can executive-branch officials repeatedly refuse to testify in the impeachment inquiry?

The immediate answer is straightforward:

They have not relied on executive privilege.

Instead, they have relied on testimonial immunity or refused to appear because government counsel would not be allowed to attend.

But the straightforward answer is misleading.

The reason Office of Legal Counsel originally concluded that an official could refuse to comply with a deposition subpoena if government counsel were not allowed was because the exclusion of government counsel would unconstitutionally interfere with executive privilege.

And the origin of immunity lies in the fact that almost all the information the presidential adviser would testify to would be presumptively privileged.

The recalcitrant witnesses have not asserted executive privilege.

But ultimately, executive privilege is the foundation of their constitutional argument that they can refuse to comply with the congressional subpoenas.

If executive privilege does not apply to impeachment, that foundation crumbles.

And the prophylactic defenses crumble along with it.

The November 1st letter opinion attempts to shore up that foundation to prevent that from happening, at least until a court says otherwise.

But the fundamental problem with the opinion is that it never addresses the truly pertinent question.

It concludes that executive privilege applies, and can be overcome only by some undetermined showing of congressional need.

And, it reasons, because the privilege theoretically could apply, then the rule that government counsel must be allowed in a deposition applies as well.

What is missing is the most relevant logical step:

whether executive privilege would be overcome by Congress’s need for information in a formal impeachment inquiry.

And the fact is, it almost certainly would.

Almost every president who has addressed the question, not to mention scholars and other executive-branch officials, has concluded that executive privilege, even if theoretically applicable to impeachment, would almost always be outweighed by Congress’s need to conduct a comprehensive inquiry, in the same way it was outweighed in Nixon by the grand jury’s need for the Watergate tapes.

The analogy to Nixon at the heart of the Office of Legal Counsel letter opinion thus highlights the opinion’s fundamental error and omission:

the necessity of balancing interests.

The administration is currently asserting not only that qualified executive privilege applies to impeachment, but that the privilege remains so important, even in impeachment, that it warrants absolute protection.

On that basis, more than 10 witnesses have refused to testify.

And more will likely do the same if the House or Senate continues to issue subpoenas and officials continue to follow the Executive Mansion’s direction.

Ultimately, the president may not need to assert executive privilege at all.

These absolute, prophylactic doctrines such as immunity and the deposition-counsel rule do not just protect executive privilege; they ultimately protect the president from ever having to undertake the balancing of public interests that has historically been at the core of executive privilege and that the Supreme Court found to compel disclosure in Nixon.

Lucky for him.

Otherwise, he would be faced with either providing the information sought or contradicting a long history of presidents and other executive-branch officials who have concluded that the public interest requires full disclosure from the president during an impeachment investigation.

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« Last Edit: Yesterday at 10:20:47 pm by Battle »