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Old 09-16-2019, 11:02 PM
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What happens if they testify anyway?


White House orders 2 former aides to defy House subpoenas
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The White House has instructed two former aides to President Donald Trump not to appear at a House Judiciary Committee hearing Tuesday, saying Rick Dearborn and Rob Porter are “absolutely immune” from testifying at what the panel is calling its first impeachment hearing.

In a letter sent to the panel and obtained by The Associated Press, White House counsel Pat Cipollone wrote that the Justice Department has advised — and Trump has directed — Dearborn and Porter to defy subpoenas because of “constitutional immunity.” Lawyers for both men said they would follow Trump’s orders.
What if one or both of them testified anyway? What repercussions would there be for them?
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Old 09-17-2019, 12:41 AM
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White House orders 2 former aides to defy House subpoenas
What if one or both of them testified anyway? What repercussions would there be for them?
They'd be fired. They might lose the legal counsel they receive as government employees and would have to hire their own lawyers. They might also lose job-related immunity.
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Old 09-17-2019, 12:54 AM
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They'd be fired. They might lose the legal counsel they receive as government employees and would have to hire their own lawyers. They might also lose job-related immunity.
They don't work for the White House anymore.
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Old 09-17-2019, 09:20 AM
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They'd get the wrath of Donald on them. But there is really nothing that can be done if they choose to testify. There is no "contempt of the president statute as far as I know. Probably they don't want to testify and are using it as an excuse. By the time this gets settled in the courts, the election might well be over.

Here is my take. First place, if congress cannot investigate a possible impeachment by subpoenas of white house papers and personnel, then the impeachment clause is a dead letter. Any court that ruled against the congress is ignoring the constitution big league. On the other hand, I also don't think the house has any real expectation of impeaching the president; they want only to investigate him and the impeachment proceedings are the easiest way to do that. That's also their excuse for asking for his tax returns which they have an absolute right to, but the executive is still blocking it.
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Old 09-17-2019, 09:32 AM
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Nothing. They cannot be held personally liable for obeying a subpoena.
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Old 09-17-2019, 09:44 AM
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Nothing. They cannot be held personally liable for obeying a subpoena.
Can they be held personally liable for disobeying a subpoena?
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Old 09-17-2019, 11:13 AM
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Can they be held personally liable for disobeying a subpoena?
I don't think they can as long as they can point to the POTUS' claim of immunity from the subpoena.
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Old 09-17-2019, 11:17 AM
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Short answer no, after they go through with a Supreme Court fight and lose then Trump just pardons them. They are basically being told that the POTUS has their back if they defy congress.

Last edited by Si Amigo; 09-17-2019 at 11:17 AM.
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Old 09-17-2019, 11:34 AM
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If Trump is asserting some variant of executive privilege, (which in its original formulation would not mean people could just not show up, I think) then Trump could intervene and ask a court to enjoin the proceedings/questioning/answers/whatever. What the rights of the executive are will get sorted out, and then (I'm betting) the proceedings will continue with some limitations based on a much narrower understanding of executive privilege than Trump and his administration is asserting.

I do not at all understand how the Justice Department can be advising people to defy Congressional subpoenas though, when it is DOJ that prosecutes contempts of Congress, I think. (Not sure, can't look it up right now.) It seems like there would be a big conflict there.

Last edited by eschrodinger; 09-17-2019 at 11:36 AM.
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Old 09-17-2019, 12:17 PM
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Can they be held personally liable for disobeying a subpoena?
Yes.
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Old 09-17-2019, 01:28 PM
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I don't think they can as long as they can point to the POTUS' claim of immunity from the subpoena.
Can the law society disbar a lawyer that the House judges guilty of contempt of congress?
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Old 09-17-2019, 04:06 PM
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They don't work for the White House anymore.
You're right. (In my defense, the Trump administration breaks so many laws, it's difficult to keep up.)
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Old 09-17-2019, 04:16 PM
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Can the law society disbar a lawyer that the House judges guilty of contempt of congress?
We don't have law societies here. The governing body in each state is typically called the [state] bar association, but it may just be called the state bar or something else. Convictions are sometimes grounds for disbarment, but disbarment or suspension is highly unlikely based on a political refusal to testify before Congress.
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Old 09-17-2019, 04:33 PM
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Short answer no, after they go through with a Supreme Court fight and lose then Trump just pardons them. They are basically being told that the POTUS has their back if they defy congress.
One could question how much that is worth, given the number of Trump lawyers & associates currently serving prison time.
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Old 09-17-2019, 04:49 PM
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[Moderating]

A reminder, all, that this is a General Question, not a Great Debate.
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Old 09-17-2019, 06:51 PM
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Short answer no, after they go through with a Supreme Court fight and lose then Trump just pardons them. They are basically being told that the POTUS has their back if they defy congress.
Does the President have carte blanche to pardon anyone he sees fit or is there a limit to that power?
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Old 09-17-2019, 07:08 PM
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Does the President have carte blanche to pardon anyone he sees fit or is there a limit to that power?
If the Wikipedia article on pardons is anything to go by, he's limited to pardoning people convicted of federal crimes (as well as crimes which have been convicted by a military court martial, and the Superior Court of the District of Columbia).

I remember this coming up during one of the trials of either Manafort or Cohen, where commentators noted that Trump would not have had the authority to pardon them if they were convicted of state crimes.

There's also been the discussion as to whether the President has the power to pardon himself (to which I do not know the answer).

Last edited by kenobi 65; 09-17-2019 at 07:09 PM.
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Old 09-17-2019, 07:31 PM
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If, hypothetically, these people were guilty of a federal crime, disobeying the directive of someone who can pardon them for that crime seems like a suboptimal move.
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Old 09-17-2019, 08:00 PM
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The only limits on the Presidential pardon power is that it only applies to federal crimes, and it can't be used in case of impeachment. Though of course, the voters might not approve.
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Old 09-17-2019, 09:33 PM
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Does the President have carte blanche to pardon anyone he sees fit or is there a limit to that power?
Complete side bar, but welcome back, The Chao Goes Mu! Long time, no see!
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Old 09-17-2019, 10:53 PM
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We don't have law societies here. The governing body in each state is typically called the [state] bar association, but it may just be called the state bar or something else. Convictions are sometimes grounds for disbarment, but disbarment or suspension is highly unlikely based on a political refusal to testify before Congress.

Wait, the merits of the matter aside, does Congress not have the power to compel process and hold in contempt?
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Old 09-18-2019, 01:33 AM
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There are several avenues. One requires the cooperation (or faithful execution of duty) of the United States Attorney for the District of Columbia. But the other two involve the inherent powers of Congress, or Congress plus a US District Court. https://en.m.wikipedia.org/wiki/Contempt_of_Congress
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Old 09-18-2019, 03:51 AM
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Short answer no, after they go through with a Supreme Court fight and lose then Trump just pardons them.
The president can pardon people for criminal contempt, or simply direct that people not be prosecuted for contempt.

He cannot pardon civil contempt, where penalties are assessed as a way to force compliance.

Last edited by Lord Feldon; 09-18-2019 at 03:52 AM.
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Old 09-18-2019, 06:21 AM
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The only limits on the Presidential pardon power is that it only applies to federal crimes, and it can't be used in case of impeachment. Though of course, the voters might not approve.
In theory, Congress could also impeach a president who (in their estimation) abused the pardon power. This was explicitly mentioned by James Madison as a remedy for such abuses. This isn't so much a limit to the power as a check on its overuse, though.
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Old 09-18-2019, 07:22 AM
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The president can pardon people for criminal contempt, or simply direct that people not be prosecuted for contempt.

He cannot pardon civil contempt, where penalties are assessed as a way to force compliance.
I wondered about this. What if they stop refusing to testify and just say "I do not recall" to every question.

Wouldn't this be criminal contempt?
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Old 09-18-2019, 08:18 AM
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Wait, the merits of the matter aside, does Congress not have the power to compel process and hold in contempt?
Yes, but congress would depend on the Dept of Justice to prosecute the contempt and that is just not going to happen. First congress would have to impeach and then convict the AG and that is not going to happen either. So congress's hands are tied. As long as at least half the house or one third of the senate is okay with the situation, the contempt of congress will be with impunity.
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Old 09-18-2019, 09:50 AM
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Wait, the merits of the matter aside, does Congress not have the power to compel process and hold in contempt?
Yes. But it has no power to direct state courts to sanction lawyers.
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Old 09-18-2019, 10:56 AM
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I wondered about this. What if they stop refusing to testify and just say "I do not recall" to every question.

Wouldn't this be criminal contempt?
No. You can be forced to answer. Refusing to do so is contempt. Giving a false answer is not the same as refusing to answer. But it is perjury.

Last edited by eschrodinger; 09-18-2019 at 10:57 AM.
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Old 09-18-2019, 03:30 PM
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No. You can be forced to answer. Refusing to do so is contempt. Giving a false answer is not the same as refusing to answer. But it is perjury.
Ok but the president can pardon perjury but he can't pardon civil contempt, right? So answering with "I do not recall" to all questions would be the right strategy if you knew for certain you would get a pardon.
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Old 09-18-2019, 09:02 PM
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It's also less likely to get prosecuted, I think. I mean, you can prove those answers are lies -- it's possible -- but it's a whole lot easier to prove that someone did not show up, or showed up but refused to answer any questions.
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Old 09-19-2019, 06:40 PM
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Complete side bar, but welcome back, The Chao Goes Mu! Long time, no see!
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