Judge Mehta’s questioning left little doubt that he was deeply skeptical about the arguments from Mr. Trump’s legal team, led by William S. Consovoy.
Mr. Consovoy essentially argued that the Constitution does not give Congress the power to investigate potential presidential corruption because determining whether someone broke the law is a function reserved for the executive branch. But Judge Mehta pointed out that under that logic, many famous historical congressional oversight investigations were illegitimate.
“Is it your view that the Whitewater and Watergate investigations were beyond the authority of Congress?” the judge asked, referring to congressional inquiries of the Nixon and Clinton presidencies. “They were looking at violations of criminal law.”
Judge Mehta, a 2014 appointee of President Barack Obama, also said he saw no need for further briefings or arguments because the dispute turned on a question of law, and the Constitution does not permit Mr. Trump’s legal team to compel the House to turn over internal documents as evidence. He said he would let lawyers submit any additional materials they wanted through Friday, then he would make his decision.
Any ruling by Judge Mehta is likely to be only the beginning of the case. Both sides acknowledged that an appeal was virtually certain, and Mr. Consovoy asked the judge, if he does rule against Mr. Trump, to stay his ruling pending appeal so that the subpoena deadline for Mazars USA, the accounting firm, is not set off before the litigation fully plays out.
But Douglas Letter, the general counsel for the House, asked the judge not to stay any such ruling — or, if he does, to make it conditional on the Trump team expeditiously filing an appeal. The larger threat, he said, was that the Trump team could use the courts to run out the clock on this Congress, thwarting its ability to perform oversight.
“Any delay undermines the House’s ability to do what the Constitution allows it to do,” Mr. Letter said.
The judge’s comments and questioning suggest he is likely to agree with the House that the information it is seeking is within its legitimate oversight roles, rejecting the Trump team’s argument that the subpoena is an illegitimate effort to obtain political dirt without any tie to Congress’s function of deciding whether to enact new laws.
Last week, Attorney General William P. Barr testified in front of the Senate Judiciary Committee on his apparent attempt to whitewash special counsel Robert S. Mueller III’s findings, particularly those related to potential obstruction of justice by President Trump. In the course of his defense, Barr said, “We have to stop using the criminal justice process as a political weapon.”
His statement echoed language that President George H.W. Bush used when announcing a controversial pardon in the final weeks of his presidency — after consultation with Barr, who was serving his first stint as attorney general. These statements make plain Barr’s view that prosecutorial investigations of executive officials are inherently partisan and, therefore, illegitimate under the rule of law. But this idea calls into question one of the central principles of the American constitutional system: executive accountability.
In Federalist 70, Alexander Hamilton trumpets the advantages of a unitary executive, that is, the notion that all executive branch authority rests with the president, rather than being divided up among different executive officers, as states such as Texas and New York do.
One of Hamilton’s central arguments was that a unitary executive increases accountability: The buck stops with the president. In a divided executive, it could be unclear whether the president or another executive officer should be held to account for unpopular, unscrupulous or unlawful actions. By making the president accountable for all such action, the people will know how to vote in future elections.
Notably, Hamilton’s ideas on accountability extend beyond the president paying at the ballot box for unpopular action. In Federalist 65, he clearly states that a president impeached for misconduct is also “liable to prosecution and punishment in the ordinary course of law.” In other words, the presidency was not designed to be free from prosecutorial inquiry.
Holding the president and other, subordinate executive branch officials to account was central to our constitutional design and the rule of law, part of the delicate compromise between those at the constitutional convention who wanted a weak executive and those who wanted a strong one.
Hamilton’s reasoning on executive accountability has featured prominently in the development of the concept over time. For example, the United States Supreme Court ruled unanimously in Clinton v. Jones that the president is not immune from civil litigation due to the constitutional mandate of executive accountability. Indeed, such accountability was not only allowed, but may well have been necessary to protect the rule of law.
Barr, however, rejects this notion — and did so long before Donald Trump entered the political arena. On Christmas Eve 1992, Bush issued a pardon to former secretary of defense Caspar Weinberger for his role in the Iran-contra affair during the Reagan administration. In violation of U.S. law, Weinberger had allegedly facilitated the sale of American missiles to Iran to help fund the contras in Nicaragua. An independent counsel was appointed to investigate the scandal and a grand jury brought indictments on two counts of perjury and one count of obstructing justice. Weinberger protested the fairness of the indictments, but the evidence of wrongdoing was substantial. (Bush, who was vice president during the Iran-contra affair, was implicated but ultimately not indicted.)
When Bush explained his rationale for the pardon, he did not contest Weinberger’s likely guilt. Instead he praised Weinberger’s long record of service to the nation and his role in bringing down the Berlin Wall and the Soviet Union.
Bush went further, though, not resting on Weinberger’s meritorious service alone. He pivoted to attack the prosecutions — 14 people associated with the Reagan administration were indicted, and 11 convicted — themselves as inconsistent with law’s necessary neutrality. Bush argued that the prosecutions represented “the criminalization of policy differences” and that “[t]hese differences should be addressed in the political arena, without the Damocles sword of criminality hanging over the heads of the combatants.” Reports at the time indicated that Bush worked closely on the pardon with Barr, which is unsurprising given the views Barr espoused last week.
Indeed, when reading this pardon in conjunction with Barr’s testimony, it’s clear that Barr holds a narrow understanding of executive accountability. In both the cases of Weinberger and Trump, prosecutors statutorily shielded from partisan influences found substantial evidence that the figure in question obstructed justice.
Yet because the targets of the investigations were political actors and, ostensibly, the opposition party would benefit from a successful prosecution of them, Barr considers any such prosecution inherently partisan and ill-suited for the courts. In other words, any attempt to investigate whether presidential action was unlawful must be partisan and, therefore, is inappropriate for nonpartisan legal institutions. Instead, as Bush identified in the Weinberger pardon, “the proper forum” for executive accountability was the “voting booth, not the courtroom.”
But this essentially gives the president (and other executive officials) a blank check: Unless misconduct rises to the level of impeachment, or if the partisan realities in Congress render impeachment an impossibility, the president is essentially immune from sanction for breaking the law, at least until leaving office.
This is not how Hamilton and his fellow Founders envisioned the system working. Worried about an out-of-control executive, they aimed to create checks and balances — and accountability. Checks and balances and the rule of law are not just formal institutional arrangements, they are norms of governance that invigorate principles central to the American system of government. Accountability is even more crucial in 2019 than it was in 1787, given how much more power the president wields today than in the 18th and 19th centuries.
When an ideology like Barr’s undermines those norms, the system of accountability carefully crafted by Hamilton and his fellow Founders and developed over two centuries threatens to become unbalanced. The result is a president unmoored from the norms that tether the executive to lawful behavior. That risks the entire American constitutional structure crashing down, as the president asserts himself with little to fear until at least the next election. While executive power has advanced steadily throughout the 20th century, what Barr envisions would be another leap, putting the United States on dangerous ground. It is not too much to ask our presidents not to violate the law. And when they fail to meet that standard, the consequences should be swift and assured.
In response to questions, Mr. Barr said he viewed Mr. Mueller as a fair-minded investigator who would treat the president fairly. “I don’t believe Mr. Mueller would be involved in a witch hunt,” Mr. Barr said, contradicting Mr. Trump’s favorite description of the special counsel’s investigation.
.. Mr. Barr told Ms. Feinstein his memo was “entirely proper.” He was concerned by news accounts of Mr. Mueller’s investigation into whether Mr. Trump obstructed justice, he said, and thought such a theory “would have a chilling effect going forward over time.”
Mr. Barr said he expressed his concerns to Deputy Attorney General Rod Rosenstein over lunch before putting them in writing. “He did not respond and was sphinx-like in his reaction, but I expounded on my concerns.”
.. The nominee also said he had expressed similar concerns to Justice Department officials regarding the prosecution of Sen. Bob Menendez (D., N.J.) on bribery allegations, saying, “I thought the prosecution was based on a fallacious theory.” That case ended in a hung jury.
.. Likely to be of particular concern to Democrats is Mr. Barr’s disclosure Monday night that he had sent the memo to a wider group of Trump lawyers than was previously known, including Jay Sekulow, Marty and Jane Raskin and Pat Cipollone, a former Justice Department colleague who is now White House counsel. Democrats, including Senate Minority Leader Chuck Schumer of New York, have said Mr. Trump should withdraw Mr. Barr’s nomination given his views in the letter.
.. “I distributed it broadly so that other lawyers would have the benefit of my views,” he said.
On the Mueller probe more broadly, Mr. Barr said in prepared remarks: “I will not permit partisan politics, personal interests or any other improper consideration to interfere with this or any other investigation.” He will add: “On my watch, Bob [Mueller] will be allowed to complete his work.”
Responsible journalists report that Trump White House aides (who are notoriously sieve-like) say the US president feels alone and cornered.
Feeling lonely should not be surprising, as Trump is not one for close friendships. He has proven time and again that for him, loyalty is a one-way street. Virtually no one who works for him can feel secure. Probably no one but his daughter Ivanka is safe from the terminal wrath that eventually pushes so many associates out the door.
.. Trump had dropped hints that he would pardon Manafort, but he was advised – and for once, he listened – that to do so before November’s midterm congressional elections would be catastrophic for the Republicans and therefore him. Manafort apparently calculated that he could neither bet on a pardon later – what if Trump himself was in serious legal danger by then? – nor afford another trial. His plea deal with Mueller strips him of most of his properties and tens of millions of dollars, but he was willing to accept huge financial losses to avoid the possibility of spending the rest of his life in prison.
.. Manafort also wanted an arrangement that would keep his family safe. After all, he would be giving Mueller’s prosecutors the goods on some Russian oligarchs close to President Vladimir Putin – folks who are not particularly gentle toward people who betray them.
.. Kavanaugh was a risky choice all along. Drawn from a list of other highly conservative possible nominees provided to the president by the right-wing Federalist Society, Kavanaugh stood apart for his extraordinary views about presidential power. Kavanaugh has written that he believed that a president cannot be investigated or prosecuted while he is in office.
.. This view that a president is above the law is unique (so far as is known) among serious legal scholars. Its appeal to Trump is obvious. Moreover, Kavanaugh’s views are far to the right on other issues as well
.. Republican leaders were desperate to get Kavanaugh confirmed before the midterms, lest their voters stay home out of disappointment and even anger if he wasn’t confirmed – in which case their worst nightmare, a Democratic takeover of the Senate as well as the House of Representatives, could come true..
.. Bob Woodward’s latest book, Fear, which (like previous books on Trump, but to a greater extent and with more depth) offers a devastating portrait of a dysfunctional White House. In particular, the book – together with an anonymous New York Times op-ed by a senior administration official – showed how far aides would go to keep an incurious, ignorant, and paranoid president from impulsively doing something disastrous.
Contrary to what supporters say, he’s no originalist.
But Judge Kavanaugh hasn’t earned his originalist badge. It’s being fixed to him to mask the fact that as an appeals court judge, he relentlessly pressed forward a Republican agenda favoring business and religious interests.
.. Judge Kavanaugh leaned a bit toward an originalist approach in two opinions, one in 2008, the other in 2011. But when he was asked in 2016 whether he considered himself an originalist, he didn’t answer, and in a 2017 lecture, he expressed caution. “History and tradition, liberty, and judicial restraint and deference to the legislature,” he explained, “compete for primacy of place in different areas of the Supreme Court’s jurisprudence.”
To a pure originalist, this is an incoherent mixing of methodologies. Any ruling that departs from the original meaning should be thrown out. Judge Kavanaugh has called for no such thing.
.. Instead, he has proudly said that he’s a textualist, which means that he gives primacy to the ordinary meanings of the words of a statute, or the Constitution itself. Textualists steer away from other sources of meaning, like legislative history. Conservatives have often touted textualism for its neutral deference to the legislature. Three of the court’s conservative members — Chief Justice John Roberts and Justices Samuel Alito and Neal Gorsuch — lay claim to textualism as a guiding principle.
But textualism doesn’t serve as an overarching theory for conservative jurisprudence. Textualist interpretation can produce liberal as well as conservative interpretations of statutes. And because ambiguous phrasing in laws leaves judges with choices to make, it doesn’t put much of a restraint on judges. As Judge Kavanaugh has said, quoting the liberal-moderate Justice Elena Kagan, “We are all textualists now.” This means that textualism offers neither a clear dividing line from liberals nor the historical gravitas of originalism.
.. This is clear from the conservatives’ expansive interpretation of the First Amendment’s guarantee of free speech, an approach that has no historical support from the time the First Amendment was written. Despite this, in a series of decisions, from Citizens United in 2010, which opened a faucet of campaign donations and spending, to Janus v. AFSCME in June, which diminished the clout of unions by stopping them from collecting dues from all the workers they represent, conservatives have used the First Amendment to strike down laws that regulate corporations, help unions and limit the influence of money on politics.
.. Tellingly, the court has accepted far more cases involving challenges to regulations of conservative speech than previous courts, with a win rate of 69 percent, compared with 21 percent for cases involving liberal speech. Judge Kavanaugh, too, has embraced this business-friendly interpretation of the First Amendment.
.. With five reliable members, the court’s conservative wing will be in a position to accomplish much, and for the most part it will be easier to achieve its goals without originalism.
.. Expect a reappearance, however, when it comes time to reconsider the constitutional right to abortion access established in Roe v. Wade. With that important exception, originalism has largely served its purpose and can be cast away
.. Judge Kavanaugh’s supporters call him an originalist rather than the pro-business Republican he is because of the theory’s claim that it separates law from politics. As the gap between originalism and the greater goals of conservative jurisprudence widens, however, the claim that the Supreme Court stands above the political fray, already damaged, will become harder to sustain.
In a signing statement that the White House quietly issued after 9 p.m. on Monday — about six hours after Mr. Trump signed the bill in a televised ceremony at Fort Drum in New York — Mr. Trump deemed about 50 of its statutes to be unconstitutional intrusions on his presidential powers, meaning that the executive branch need not enforce or obey them as written.
Among them was a ban on spending military funds on “any activity that recognizes the sovereignty of the Russian Federation over Crimea,” the Ukrainian region annexed by Moscow in 2014 in an incursion considered illegal by the United States. He said he would treat the provision and similar ones as “consistent with the president’s exclusive constitutional authorities as commander in chief and as the sole representative of the nation in foreign affairs.”
.. The statement was the latest example of Mr. Trump’s emerging broad vision of executive power. His personal lawyers, for example, have claimed that his constitutional authority to supervise the Justice Department means that he can lawfully impede the investigation into Russia’s interference in the 2016 election no matter his motive, despite obstruction-of-justice statutes.
.. The American Bar Association in 2006 took the position that presidents should not use signing statements, but should instead veto legislation if it has constitutional defects so that Congress has an opportunity to override that veto if lawmakers disagree. But presidents of both parties, including Barack Obama, have continued to use them, with current and former executive branch lawyers arguing that the focus should be on the credibility of the legal theories that presidents invoke when they make their objections.