Behind the bitter legal clash between Congress and the White House, who might win? fromthemag
Yet six months later, the question looms: Will they have anything to show for their efforts before the next election—just 17 months off.Though not literally true, his statement"forecast an approach that nobody's taken in the past," says Jonathan Shaub, an attorney who worked extensively on executive privilege and Congressional oversight issues while with the Justice Department's Office of Legal Counsel from mid-2014 to mid-2017.
By then, the administration had begun invoking executive privilege, a related doctrine called"testimonial immunity," and an array of other arguments in an effort to thwart, or at least slow, Democratic oversight inquiries. It has raised such obstacles against demands for testimony and records from former White House counsel Donald McGahn; McGahn's chief of staff, Annie Donaldson; Commerce Secretary Wilbur L.
"These should be easy cases for the courts of appeals," contends Brianna Gorod, chief counsel for the left-of-center Constitutional Accountability Center, in an interview."The president's lawyers have offered an understanding of Congress's oversight authority that is at odds with Supreme Court precedent and is so limited that it would significantly undermine this critical component of our nation's system of checks and balances.
Just as important, the executive privilege cases—especially those involving many pages of documents or testimony about multiple topics—may take so long to litigate that the administration will be able to run out the clock before the 2020 elections.
The committee's goal, Trump's legal team allege in their complaint in the Washington case,"is to expose Plaintiffs' private financial information for the sake of exposure, with the hope that it will turn up something that Democrats can use as a political tool against the president now and in the 2020 election."
Waters and Schiff maintain that these subpoenas are relevant to potential legislation or appropriations bills relating to"the safety of banking practices, money laundering in the financial sector, foreign influence in the political process, and the threat of foreign financial leverage, including over the president, his family, and his business.""This is not a 'case study' of a well-known individual who frequently uses banks," his lawyers wrote in a brief in May.
But the Supreme Court overturned the district judge, 8-0. It restored the contempt citation and found that,"so long as the subject was one on which legislation could be had," the"presumption should be indulged that this was the real object." In effect, so long as Congress could articulate a facially plausible reason to investigate, courts would not look behind that and try to read the minds of individual representatives.
Importantly, though, just two years later, the Supreme Court addressed a nearly indistinguishable McCarthy-era case—and came out the other way. In that one, Barenblatt v. United States, a teaching assistant had been held in contempt for refusing to answer questions about whether he was or ever had been a member of the communist party. This time the Court sustained his contempt conviction, appearing to return to its earlier approach.
Despite the omission, US District Judge Amit Mehta of Washington, DC—presiding over the case involving the subpoena to the Mazars accounting firm—brought it up on his own. Though he based his May 20 ruling—rejecting Trump's arguments—mainly on the McGrain line of precedents, he also finally addressed the elephant in the room.
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