Ken: Let’s take up the dominating subject these days. It should be like a hanging curve right in your wheelhouse. The president is locking horns with Congress; does congressional subpoena power trump executive privilege?
It seems to me, neither a lawyer nor constitutional expert: Is not the president entitled to the same constitutional protections as other Americans?
Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
That’s a brief, clearly worded, and unambiguous statement. Doesn’t the duly elected president, albeit the congressional Democrats and denizens of the Deep State see him as an ignorant lout and hate his guts, have these same rights as any other citizen? Thus, House Democrats snowing a blizzard of subpoenas for Donald Trump’s tax filings and other financial records and asking for testimony from him and his principal advisors and lawyers without evidence of any prior specific crimes (probable cause) violates the Fourth Amendment. In fact, doesn’t it seem like the entire body of the Department of Justice and Mueller investigation so far was based on sworn oaths that were lies or at best speculations, and were purely political and were in violation of the Fourth? And why doesn’t attorney-client privilege seem to apply? All this is after two-plus years of special counsel investigation that fell short of any indictments. Remember saying that any federal prosecutor could get an indictment on a ham sandwich if he put his mind to it? Not Trump this time.
Joe: Only in Washington, D.C., can a private citizen, without filing a motion with the court, ignore a subpoena and get away with it. Do this in Kankakee County or other parts of the country, and the sheriff will track you down and haul you to court to answer contempt charges. In D.C., those subpoenaed before Congress are or were former federal employees who were asked to appear and testify regarding matters they picked up or learned while drawing a government salary. At the request of the White House, they simply did not show up. They now will fight any legal proceedings brought against them by hiring $500-per-hour-plus lawyers paid for by guess who? Not Trump nor the witness. But us. Give me please a perfect witness, one who is not afflicted with extreme hubris. Someone who, when he or she receives a subpoena, understands he has a duty to appear and tell what he knows while he was a paid federal employee because loyalty is not owed to one person or a political party but to the USA. Give me a person who is honest, with no malice nor axe to grind, who steps up to the plate and testifies before Congress, chapter and verse, leaving our senators, representatives and all Americans to theorize and analyze whatever they wish from the facts.
Ken: I don’t think the cost of hiring a few more lawyers is a big deal to the Democrats pushing the issue. We who are taxed already have ponied up $35 million for the Robert Mueller futility aimed at unhorsing Trump. Trump lawyer Don McGahn already has testified for 30 hours during that fruitless FBI investigation. What’s to be gained by another round of testimony to Congress? What is the crime being probed? The Wall Street Journal printed a relevant editorial subtitled “Why Congress can’t force former White House counsel to testify.” The precedent for McGahn not appearing goes back 50 years when the William Rehnquist court ruled on constitutional grounds of maintaining the balance of power Congress can’t compel the president’s senior staff and most trusted advisors to appear. Add to that Trump invoking executive privilege limits the scope of questioning. It is to be anticipated a friendly federal judge will support the subpoenas but ultimately will be overturned by the Supreme Court. Maybe then Congress will go back to legislating instead of investigating.
Joe: Politics today is very divisive not only in the USA but Britain. Rosa Prince, the author of a biography about Britain’s Prime Minister Theresa May, who announced this week she would step down, stated, “She’s like a tanker that takes forever to change direction and then can’t recalibrate when it’s clear the new course is fatal.” What is interesting is when you have dinner with friends and new acquaintances and discuss what you and I are discussing, some are also like tankers on the high seas with one exception. Because of insecurity, lack of flexibility, insight or whatever, they can’t change direction or course. It doesn’t matter what the facts are. That reminds me of some lines by Simon and Garfunkel, “Still, a man hears what he wants to hear and disregards the rest.” Allow me thus to throw out the rest.
1. On your “$35 million” ponying up statement which Trump rants about, Mueller has secured convictions or guilty pleas of several Trump campaign officials for lying in connection with the investigation, including Paul Manafort, Rick Gates, Michael Flynn, etc. What Trump doesn’t mention is Mueller has pulled in $48 million from tax cheats. Manafort alone when he entered his plea deal agreed to forfeit real estate and cash estimated to be worth $42 million to $46 million. Thus, the Mueller investigation could turn a profit for the government.
2. You then ask, “What is the crime...?” Another Trump talking point. Mueller did not charge Trump with obstruction of justice not because the evidence did not support it but because he concluded it would be inappropriate to level a criminal charge against a sitting president (DOJ policy). Meanwhile, more than 700 former federal prosecutors after reading the redacted Mueller report reached a conclusion on presidential obstruction saying Trump should be charged with a crime for trying to block the special counsel probe. One of those was Paul Rosenzweig, who was senior counsel to Ken Starr, who investigated Bill Clinton, who said, “It’s as close to an open-and-shut case for charging as you can find it.” He went on to state Bill Barr’s arguments are “the arguments of a defense attorney…,” “mistaken conclusions as to the substance of the evidence…” and “the president should not be above the law; in America, no person should be.”
3. All of which brings us back to our beginning. Subpoenas. Don McGahn, a lawyer now in private practice, was a no-show before the house after being subpoenaed. You ask, “What’s to be gained …” from him with more testimony? He was cited 157 times in Mueller’s report. McGahn was not Trump’s lawyer but the lawyer for the American people and White House. The bulk of the business he conducted in the White House (other than direct conversations with the president), is not protected under executive privilege. Nor are criminal acts. Also, because the White House allowed McGahn to be interviewed by Mueller and testify in the first place, the executive privilege was waived. As to what continues to go on in the House, it has not been given the entire Mueller report. It has the constitutional mandate to investigate all suspected wrongdoing of the executive branch so new protective laws can be enacted. The sooner all of these matters are resolved, the better.