As Nixon learned, Congress will not abide a president who defies its subpoenas.
The subpoenas against Nixon demanded 147 unedited tape recordings of presidential conversations; a list of meetings and telephone conversations for five specific, suspicious periods between 1971 and 1973; and copies of any handwritten presidential notes pertaining to the Watergate charges.
In response, Nixon asserted that the Judiciary Committee already had the “full story of Watergate,” and did not need to have further materials. He produced none of the 147 unedited transcripts that had been requested. (That bundle of withheld tapes included the critical June 23 tape that, when it was finally released, ultimately drove the president from office, and that Nixon had listened to many weeks earlier.)
.. In response, the committee approved Article III. It charged that the president “has failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee.” Instead, it read, Nixon had substituted his own views as to what materials were necessary for the committee to render its judgment, and had interposed the powers of the presidency against the lawful subpoenas of the House of Representatives. His refusal to comply interfered with the committee’s ability to fulfill its constitutional duties and was, therefore, subversive of constitutional government.
.. President Trump has taken a similar approach to Nixon’s, declaring that the Mueller report should mean the end of any related congressional investigations, and that he would defy any subpoena that came from them. In response, congressional leaders have said they would take the matter to court.
That’s a good thing to do — to have the courts reaffirm what is already clear in the law — and Congress will probably win. But a court case could take months to conclude, playing into the president’s apparent strategy of running out the clock.
Attorney general may withdraw from Mueller report hearing over terms of his testimony, House Democrats say
Democrats and the Justice Department are in a standoff over the terms of Attorney General William P. Barr’s planned testimony before the House Judiciary Committee this week, raising the prospect that the hearing might not go forward at all.
A senior Democratic committee aide said Sunday that Barr risks being subpoenaed if he refuses to testify over his objections to the lawmakers’ desired format for the hearing.
Barr is expected to appear before the Senate and House Judiciary committees Wednesday and Thursday, respectively, to address questions about special counsel Robert S. Mueller III’s report on Russian interference in the 2016 election. But according to senior aides for the panel’s chairman, Rep. Jerrold Nadler (D-N.Y.), Justice Department officials have objected to Democrats’ plans to permit extended questioning, including by the committee’s lawyers, and threatened that Barr may withdraw.
“The attorney general agreed to appear before Congress,” Justice Department spokeswoman Kerri Kupec said in a statement. “Therefore, members of Congress should be the ones doing the questioning. He remains happy to engage with Members on their questions regarding the Mueller report.”
.. Democrats maintain that statements and letters Barr issued before releasing Mueller’s redacted report have helped Trump make a case to the public that the special counsel investigation exonerated him, despite what they believe to be a wealth of incriminating evidence detailed throughout the 448-page document. A televised hearing is seen among lawmakers as their opportunity to hold Barr to account and make their case to the American people.
Daniel Schwarz, a spokesman for Nadler, said Sunday, “It would be a shame if Barr refused to show up for the hearing, but it is important that there be a chance to ask follow-up questions as has been done in the past, and members should not be prohibited from asking about redacted sections of the Mueller report, which means we would need to go into executive session in order for Barr to be able to answer in a secure setting.”
.. Democratic members think it’s important, given Barr’s past testimony and what they viewed as his attempt to shape the narrative on Mueller’s report, that he be subjected to extended questioning, including by committee lawyers, said one congressional aide familiar with the matter, who spoke on the condition of anonymity because of the sensitivity surrounding Mueller’s report. Ordinarily, each member gets five minutes for questioning.
Democratic lawmakers “have seen administration witnesses filibuster for 4½ minutes, then say something nonresponsive in the last half-minute,” the aide said. “The Democratic members have been nearly unanimous in their opinion that circumstances warrant extended questioning, including by counsel.”
Democrats also want to reserve the right to vote to have Barr participate in a closed-door session following his public hearing to address questions about the information that remains shrouded by redactions in Mueller’s report, aides said.
But according to Nadler aides, Barr’s team objected to that proposal as well and said such a demand would prevent Barr from delivering his testimony as anticipated.
A Justice Department official came back to the committee Democrats on Friday “very worked up about” Nadler’s plan, and said that if the Democrats insisted on following their plan, Barr “might not come,” the aide said.
“The chutzpah of telling us how the hearing is going to be structured and then threatening to walk goes directly to our working thesis that [Barr] is interested in carrying water for the president but not interested in providing answers to the public,” the aide said.
The committee staff have researched other instances in which committee lawyers have questioned Cabinet officials during open congressional hearings, the aide said. The last time was during the 1980s, when President Ronald Reagan’s attorney general, Edwin Meese, gave testimony during the Iran-contra hearings, the aide said.
“The attorney general can choose to come in voluntarily under the chairman’s framework or risk being subpoenaed at a later date,” the senior aide said.
Barr and Democrats have long been at odds over the Mueller report and how the attorney general has handled its rollout. Many Democrats say Barr misrepresented Mueller’s findings in his public statements before the report’s release, and the party as a whole is frustrated that Barr has not taken further steps to ensure that all members of Congress are able to view the information that was redacted.
Barr’s most recent offer was that a select group of lawmakers, including several committee chairs, be allowed to view the redacted information, except for passages that cite grand jury testimony. Democrats have rejected that offer, arguing that more members and staffers should be privy to the redactions, and that Barr should assist lawmakers in seeking a court order to release the grand jury testimony to them.
A spokesperson for committee Republicans said Barr “wasn’t asked to testify before the committee — he offered.” The attorney general provided the Mueller report voluntarily and invited Democratic leaders to view a less-redacted version of the report in person, said the spokesperson, who like others spoke on the condition of anonymity to discuss sensitive information.
“Yet the only thing, apparently, that will satisfy Democrats, who refuse to read the less-redacted report, is to have staff pinch-hit when a Cabinet-level official appears before us,” the spokesperson said. “What actual precedent is there for our committee making such demands of a sitting attorney general as part of our oversight duties? The attorney general isn’t a fact witness, and this committee’s investigations — as Democrat leadership reminds us daily — don’t constitute impeachment, so Democrats have yet to prove their demands are anything but abusive and illogical in light of the transparency and good faith the attorney general has shown our committee.”
The Daily 202: Kavanaugh hearing offers an ‘unprecedented’ display of the Senate’s institutional decline
— Judiciary Committee Chairman Chuck Grassley said what was truly “unprecedented” was when Democrats blocked Robert Bork’s confirmation back in 1987. “This is my 15th Supreme Court confirmation hearing since I joined the committee in 1981,” said the Iowa Republican. “Thirty-one-years ago, during my fourth Supreme Court confirmation hearing, liberal outside groups and their Senate allies engaged in an unprecedented smear campaign against Judge Robert Bork.”
Bork, as the solicitor general, conspired with Richard Nixon in 1973 to carry out the “Saturday Night Massacre” and fire Archibald Cox in a scheme to obstruct the special prosecutor’s investigation into the Watergate affair. He did so after then-attorney general Elliot Richardson and deputy attorney general William Ruckelshaus had resigned rather than do so. Bork’s nomination to the high court went down 42 to 58 on the Senate floor, with six Republicans joining every Democrat in opposition. Ronald Reagan subsequently nominated Anthony Kennedy as a more moderate replacement.
.. — Judiciary Committee Chairman Chuck Grassley said what was truly “unprecedented” was when Democrats blocked Robert Bork’s confirmation back in 1987. “This is my 15th Supreme Court confirmation hearing since I joined the committee in 1981,” said the Iowa Republican. “Thirty-one-years ago, during my fourth Supreme Court confirmation hearing, liberal outside groups and their Senate allies engaged in an unprecedented smear campaign against Judge Robert Bork.”
Bork, as the solicitor general, conspired with Richard Nixon in 1973 to carry out the “Saturday Night Massacre” and fire Archibald Cox in a scheme to obstruct the special prosecutor’s investigation into the Watergate affair. He did so after then-attorney general Elliot Richardson and deputy attorney general William Ruckelshaus had resigned rather than do so. Bork’s nomination to the high court went down 42 to 58 on the Senate floor, with six Republicans joining every Democrat in opposition. Ronald Reagan subsequently nominated Anthony Kennedy as a more moderate replacement.
.. Kavanaugh is now up for this seat, which Grassley still resents did not go to Bork. The chairman read at length from an op-ed that ran over the weekend in the Wall Street Journal by conservative legal blogger Mark Pulliam. “By confirming Judge Kavanaugh,” Pulliam wrote, “the Senate can go some way toward atoning for its shameful treatment of Justice Robert Bork 31 years ago.”
.. Sen. Mike Lee (R-Utah), whose father was Reagan’s solicitor general, also complained about Bork being blocked during his opening statement. “It remains something of a rock-bottom moment for the Senate and for the Senate Judiciary Committee,” he said.
.. The chorus of reverent Republican paeans to Bork, whose legacy will always be tainted by his role as the hatchet man in the “Saturday Night Massacre,” were particularly striking against the backdrop of Democratic charges that Kavanaugh would give legal air cover to Trump in the plausible scenario that he moves against Bob Mueller, as well as the continuing unwillingness of congressional Republicans to pass legislation that would safeguard the special counsel.
.. In this vein, Sen. Richard Blumenthal (D-Conn.) argued that holding the hearing is “unprecedented … because [Trump] is an unindicted co-conspirator who has nominated a potential justice who will cast the swing vote on issues relating to his possible criminal culpability, including whether he is required to obey a subpoena or to appear before a grand jury, whether he is required to testify in a prosecution of his friends or associates or other officials in his administration and whether in fact he is required to stand trial if he is indicted while he is president.”
.. — Introducing himself to the committee as reasonable and collegial, Kavanaugh described Merrick Garland as a personal “friend” and a “superb” chief judge on the U.S. Court of Appeals for the D.C. Circuit, where they have served together for more than a decade. “I am proud of that body of work and I stand behind it,” Kavanaugh said.
Perhaps this was meant as an olive branch, but Democrats took it as trolling. Garland, after all, was Barack Obama’s nominee to replace Antonin Scalia in 2016, and Senate Republicans refused to give him a hearing or otherwise consider his nomination. As much as anything else, the GOP’s treatment of Garland two years ago destroyed the last vestiges of comity in the judicial nominations process. Three Democrats cited him during the hearing on Tuesday to call for a postponement.
Kavanaugh’s comment about Garland wasn’t the only thing that rubbed salt in open wounds. Tuesday’s hearing featured sometimes naked displays of brute political force by a party that has just a one-seat majority in the Senate.
.. “You had a chance, and you lost,” Sen. Lindsey Graham (R-S.C.) told the Democrats. “If you want to pick judges from your way of thinking, then you better win an election.”
Sen. Ted Cruz (R-Tex.) claimed that the GOP’s refusal to allow a hearing for Garland actually gives Gorsuch and Kavanaugh “super legitimacy” because voters in 2016 knew that the next president would get to pick at least one justice.By releasing a list of the judges he’d pick from, Cruz said, Trump provided “unprecedented transparency.”
“This is an attempt by the Democrats to relitigate the 2016 presidential election,” Cruz continued.
To be sure, when it looked like Hillary Clinton was probably going to win, Cruz argued that Republicans should consider keeping the seat vacant for her entire term.
.. these same GOP members have also been going to the White House complex for several weeks to participate in mock confirmation hearings with Kavanaugh.
They’ve pretended to be Democratic senators in these moot sessions and coached Kavanaugh on how to deflect expected inquiries from the other side.
.. “It’s mostly a sham,” said Whitehouse. “You know the game,” the senator told Kavanaugh, who looked back at him stone-faced. “In the Bush White House, you coached judicial nominees to just tell senators that they have a commitment to follow Supreme Court precedent, that they will adhere to statutory text and that they have no ideological agenda. Fairy tales!”
.. Last year, McConnell went “nuclear” — in the parlance of the Senate — by changing the rules of the body to allow Supreme Court nominees to be confirmed by a simple majority — instead of 60 votes. Harry Reid shortsightedly changed the rules four years earlier to allow lower-court nominees to be confirmed this way, but he said at the time that the Supreme Court process should stay sacrosanct.
.. Going nuclear means that presidents are more likely to pick ideological nominees when their party controls the Senate, whether from the right or the left, because they no longer need any members of the other party to cross over to secure 60 votes. Kavanaugh can be muscled onto the court with only GOP votes, which makes his confirmation a sort of fait accompli. He does not need to make concessions or agree to recuse himself from certain cases.
.. The result of the rule changes is a Senate that’s become more majoritarian. Members of the minority have fewer prerogatives. This is a recipe for institutional decay. No one who watched yesterday’s circus could credibly call the Senate the world’s greatest deliberative body. It certainly isn’t what James Madison had in mind when he designed the upper chamber as a cooling saucer on the passions of the people’s representatives in the House. Republicans will probably come to regret the rule changes when they again, inevitably, find themselves in the minority and Democrats treat them as they’re now being treated. That probably won’t happen next year, but perhaps in 2021 or 2023.
.. But there’s no going back now. Why would Democrats tie their hands and hold their nominees in the future to a higher standard than Republicans have held theirs? Neither party’s base would tolerate unilateral disarmament.
— “Kavanaugh may not become the most conservative member of the court, but his background suggests he would be the most partisan,” Dana Milbank explains in today’s paper. “Democrats say the committee received only 7 percent of Kavanaugh’s White House documents — and some of those have been altered, while half cannot be discussed publicly. Why? They would likely reinforce what is already known about Kavanaugh as a nakedly partisan appointment, solidifying the court’s transition from a deliberative body to what is effectively another political branch. ….. ‘a cynical view of Kavanaugh’s actions would be that he bases his legal reasoning on his conservative views — that he supports broad powers for a Republican president and circumscribed powers for a Democratic president.’ What has emerged about Kavanaugh — particularly his vulgar plan to humiliate [Bill] Clinton — reinforces that cynical view. This is why Kavanaugh’s defenders don’t want the documents to come out.”
Why Mueller Can’t Subpoena Trump
There are significant factual disputes about these episodes, but all involve the president’s exercise of his core constitutional powers as chief executive, including the power to appoint and remove high-level executive-branch officials, to supervise the performance of their duties (as in the Espy case), and to determine law-enforcement priorities. We have argued in these pages that the president cannot obstruct justice by exercising the discretionary powers of his office, especially in determining whether and why to fire high-level presidential appointees like Mr. Comey. According to the two leaked letters from Mr. Trump’s lawyers to Mr. Mueller, they take essentially the same view.
Any prosecution based on Mr. Trump’s exercise of his core constitutional authority would dramatically impair the executive’s status as a coequal branch of government, considering that Congress enjoys immunity under the Speech and Debate Clause while exercising its legislative powers. It would also inject the judiciary into the president’s decision-making process, requiring judges to delve into matters that are inherently political.
Developments over the past year reinforce our view that it would unconstitutionally debilitate the presidency to base an obstruction charge on gainsaying the president’s motives in exercising his core responsibilities. Mr. Trump’s critics have also accused him of obstructing justice by using his pardon power. They claim his pardons of Joe Arpaio, Scooter Libby and Dinesh D’Souza —whom he considers victims of previous political prosecutions—were meant to reassure targets of Mr. Mueller’s probe that they too might be pardoned. Under such logic, a president under investigation could not discharge his constitutional duties at all, including the use of military force overseas—which can always be cast as a “wag the dog” strategy.
.. That independent-counsel investigation did not concern the exercise of presidential authority. They concerned allegations of perjury and obstruction from Mr. Clinton’s personal relationship with a White House intern.
.. Because constitutional considerations were not in play
.. Mr. McGahn spent nearly 30 hours describing the substance of his conversations with Mr. Trump and offering his assessment that the president’s actions were lawful.
With access to the relevant documents and everyone around the president, the special counsel has no material facts left to find.
.. Interviewing or interrogating the president could shed additional light only on his own thoughts and motives—exactly what executive privilege is designed to protect.
.. Mueller knows that losing a subpoena court fight would prolong and delegitimize his investigation. He is unlikely to press the point.