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Old 02-07-2020, 03:10 PM
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"Executive vs Legislative" VS "Executive vs Judicial"


The US Constitution provides for the three branches of government - legislative, executive and judicial - and the system of checks and balances between and among them. These checks and balances are meant to ensure that no single branch is superior to any other and thus that they are co-equal.

The results of the recent impeachment and trial process seem to indicate that while the legislative branch can demand that the executive branch submit documents and provides witnesses, the executive as a co-equal branch does not have to comply. By extension this would imply that the executive would similarly not have to comply with an order from the judicial. Even if the legislative and judicial both make the same demand of the executive, there is no constitutional provision that allows two branches to outvote the third branch. Thus the executive (or the legislative or the judicial) can comply or not as it sees fit with any order from the other branches.

Is this the way it was meant to work, or is the US Constitution a flawed document?

The floor is now open to Great Debaters.
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Old 02-07-2020, 03:13 PM
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The results of the recent impeachment and trial process seem to indicate that while the legislative branch can demand that the executive branch submit documents and provides witnesses, the executive as a co-equal branch does not have to comply. By extension this would imply that the executive would similarly not have to comply with an order from the judicial.
I have been puzzled and troubled by exactly this same point.

Seems to me that the advocates of Executive power during the Bush Administration had a veneer of principle and intellectualism behind their views of the expansive power of the President. This Administration? I think it goes no deeper than "Fuck you, we do what we want."
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Old 02-07-2020, 03:16 PM
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Jebert, I just popped in to say thank you for using among and between correctly.
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Old 02-07-2020, 03:21 PM
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Thus the executive (or the legislative or the judicial) can comply or not as it sees fit with any order from the other branches.
The legislative branch can impeach and remove the President or a judge. The fact that it wasn't successful this time doesn't mean the check isn't there, just that the bar is high for this type of action. As it should be.

If the president or judge refused to give up their office then we'd have a full blown Constitutional Crisis, but that hasn't happened yet.
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Old 02-07-2020, 04:48 PM
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The legislative branch can impeach and remove the President or a judge. The fact that it wasn't successful this time doesn't mean the check isn't there, just that the bar is high for this type of action.
But the judicial branch really has no remedy for a President who would refuse to obey subpoenas. So is it just coincidence that the current Administration argues that the judicial branch has to weigh in on whether a legislative subpoena is valid? And is it also coincidence that it takes months, or perhaps even years, for the judicial system to come to final decisions on such matters?
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Old 02-07-2020, 04:58 PM
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I think it was Andrew Jackson versus Supreme Court justice John Marshall, back when, that prompted the former to say "Marshall has made his decision. Now let him try to enforce it!"

The reconciliation of the balance of powers is established less in written law than in precedent.

When someone doesn't give a shit about precedent and tradition and established processes, it may ultimately hinge on other folks' willingness to take physical action in accordance with those established precedents.
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Old 02-07-2020, 07:36 PM
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The US Constitution provides for the three branches of government - legislative, executive and judicial - and the system of checks and balances between and among them. These checks and balances are meant to ensure that no single branch is superior to any other and thus that they are co-equal.

The results of the recent impeachment and trial process seem to indicate that while the legislative branch can demand that the executive branch submit documents and provides witnesses, the executive as a co-equal branch does not have to comply. By extension this would imply that the executive would similarly not have to comply with an order from the judicial. Even if the legislative and judicial both make the same demand of the executive, there is no constitutional provision that allows two branches to outvote the third branch. Thus the executive (or the legislative or the judicial) can comply or not as it sees fit with any order from the other branches.

Is this the way it was meant to work, or is the US Constitution a flawed document?

The floor is now open to Great Debaters.
The simple version is that the executive exercises only executive powers, the legislature only legislative power, and the judicial only judicial powers therefore the three are separate and their powers should never interfere with one another.

That simple version early and often turned out to be wrong. Interbranch disputes happened almost immediately and still happen. The Supreme Court early on decided (some say very conveniently, decided for themselves) that it was the final arbiter of what the Constitution commanded.

Andrew Jackson and Lincoln in wartime notwithstanding, people in government have generally backed the Court when it rules and that makes it sort of the third branch which is more equal than the others.

If a president openly defied the Court and had Justices arrested? Well, we would have a constitutional crisis. It really is just a piece of paper and only works as long as people follow it. The Soviet Constitution had all sorts of beautiful human rights guarantees.

All constitutions depend on people respecting the process which is why many of these hypotheticals claiming that the Constitution cannot possibly say X or Y because the President and 34 Senators could fuck off to Key West and drink for four years and Congress could do nothing!!! are absurd.

For all of his faults, Trump has never defied a court order.
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Old 02-07-2020, 08:15 PM
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I still don’t get why an Executive defying a judicial order is OMG CONSTITUTION CRISIS and the Executive defying a legislative subpoena is not.
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Old 02-07-2020, 08:39 PM
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I still don’t get why an Executive defying a judicial order is OMG CONSTITUTION CRISIS and the Executive defying a legislative subpoena is not.
Well, clearly the validity of the subpoena has to be adjudicated. I can't recall any court-validated subpoena that has been ignored. Am I wrong on this?

Basically, when the executive and the legislative branch disagree, the judicial is the tie-breaker. If the executive subsequently also ignores the judicial, then you have a legitimate crisis (and one would hope there would be more than just Mitt f'n Romney willing to stand up and fight it). But I don't believe this has happened yet.
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Old 02-07-2020, 08:40 PM
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I still don’t get why an Executive defying a judicial order is OMG CONSTITUTION CRISIS and the Executive defying a legislative subpoena is not.
Because since Marbury v. Madison, it is the function of the Court to say what the law is. So if the executive and the legislature have a dispute, then the Court says what the law is. It did it in the Nixon case and that brought Nixon down.

I agree with you that the text of the Constitution doesn't support this, but judicial supremacy has become part of our society through tradition.

Of course as we've seen, the Congress also can take action on its own to check a refusal of its subpoena, it just needs a majority in the House and a 2/3ds vote in the Senate to do so.
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Old 02-07-2020, 08:50 PM
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Of course as we've seen, the Congress also can take action on its own to check a refusal of its subpoena, it just needs a majority in the House and a 2/3ds vote in the Senate to do so.
Hahahahahahhahaha!
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Old 02-07-2020, 09:48 PM
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Why hasn't the House sent their Marshall at Arms to enforce subpeonas* and haul-in recalcitrant witnesses?

* Subpeona ==> with penalty. Without penalty, there's no enforcement. Congress is castrated.
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Old 02-08-2020, 04:54 PM
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I still don’t get why an Executive defying a judicial order is OMG CONSTITUTION CRISIS and the Executive defying a legislative subpoena is not.
Yes, that's the main point. Why is an order from Congress less legitimate than an order from the Supreme Court?
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Old 02-08-2020, 06:06 PM
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Yes, that's the main point. Why is an order from Congress less legitimate than an order from the Supreme Court?
I know I am invisible but look at post #10.

Further, why should the executive be the branch taking orders from the other two? Why can't the President, for example, order Congress to assemble at the White House for a meeting? Or why couldn't the executive or the legislature order the Supreme Court to testify regarding the deliberations before it decided a major case, you know, to help with their nomination process?
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Old 02-08-2020, 06:09 PM
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Why hasn't the House sent their Marshall at Arms to enforce subpeonas* and haul-in recalcitrant witnesses?

* Subpeona ==> with penalty. Without penalty, there's no enforcement. Congress is castrated.
Because Congress doesn't have absolute power. Any body that issues a subpoena allows the subpoena to be challenged for a legal privilege. And who might decide or "judge" whether that assertion of a privilege is proper. I dunno, it's right on the tip of my tongue, perhaps a judge in some sort of judicial process might decide that.

Imagine if your wife is charged with murder. The State subpoenas you to testify at her trial. You want to assert that in your state you have a privilege not to testify against your spouse. Should the state:

1) Send the jackboots out to arrest you, or
2) Let the judge decide?
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Old 02-08-2020, 07:43 PM
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Because Congress doesn't have absolute power. Any body that issues a subpoena allows the subpoena to be challenged for a legal privilege. And who might decide or "judge" whether that assertion of a privilege is proper. I dunno, it's right on the tip of my tongue, perhaps a judge in some sort of judicial process might decide that.

Imagine if your wife is charged with murder. The State subpoenas you to testify at her trial. You want to assert that in your state you have a privilege not to testify against your spouse. Should the state:

1) Send the jackboots out to arrest you, or
2) Let the judge decide?
Without force there's no enforcement. If a prosecutor subpeonas me and I don't show up, armed uniformed folks will arrive to force escort me to appear. I can then make my case about whether to testify. If Congress can't force appearance, it is gutted, castrated. The executive IS king. The king's minions ARE immune. All hail the king!

Here we have Congress, performing their Constitutional oversight role, investigating high crimes and misdemeanors by the executive, issuing subpeonas that are ignored or appealed to courts stacked by sympathetic to the executive, and so delaying ruling on the subpeonas until they're moot.

Imagine if your wife, whom you still like, is charged with murder. The State subpoenas you to testify at her trial. She'll go free via Statute of Limitations in a few months if you can delay the trial. Should you:

1) Voluntarily comply for the sake of speedy justice, or
2) File multiple appeals with the judge, who owes you favors?
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Old 02-08-2020, 07:58 PM
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I think it was Andrew Jackson versus Supreme Court justice John Marshall, back when, that prompted the former to say "Marshall has made his decision. Now let him try to enforce it!"

The reconciliation of the balance of powers is established less in written law than in precedent.

When someone doesn't give a shit about precedent and tradition and established processes, it may ultimately hinge on other folks' willingness to take physical action in accordance with those established precedents.
Legitimacy is ultimately derived from the consent of the people who are governed. People power is the ultimate check against tyranny. But people have to assert that power. They have to agree on how to assert that power, and how much of it to assert, and when.
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Old 02-08-2020, 08:20 PM
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Without force there's no enforcement. If a prosecutor subpeonas me and I don't show up, armed uniformed folks will arrive to force escort me to appear. I can then make my case about whether to testify. If Congress can't force appearance, it is gutted, castrated. The executive IS king. The king's minions ARE immune. All hail the king!

Here we have Congress, performing their Constitutional oversight role, investigating high crimes and misdemeanors by the executive, issuing subpeonas that are ignored or appealed to courts stacked by sympathetic to the executive, and so delaying ruling on the subpeonas until they're moot.

Imagine if your wife, whom you still like, is charged with murder. The State subpoenas you to testify at her trial. She'll go free via Statute of Limitations in a few months if you can delay the trial. Should you:

1) Voluntarily comply for the sake of speedy justice, or
2) File multiple appeals with the judge, who owes you favors?
The courts force appearance through attorneys. Trump's attorneys show up to litigate the issue.

If you want to just shit all over the thread by saying that the judicial branch is corrupt (along with the executive) and I suppose the Senate, and the only true patriotic part of the government that deserves any recognition are the Democrats in the House, then have at it.

I thought this thread was serious and not, yet again, another Trump bashing thread.
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Old 02-08-2020, 08:58 PM
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Well, I think this thread is actually about a key weakness in the system of checks and balances, but a few want to turn it into “how dare you criticize Trump and hurt my feelings!”

It also just seems so odd to me that the basis of this constitutional crisis goes back to the Executive exerting privileged not provided for in any statute, yet judges who criticize judicial activism are so quick to say such privileges need to be taken seriously.

I mean, how can a judge criticize the basis of Roe v Wade as being a judicial fiction because it appears nowhere in the Constitution, but executive privilege is so important despite no legislature ever approving it?
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Old 02-08-2020, 11:15 PM
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Well, I think this thread is actually about a key weakness in the system of checks and balances, but a few want to turn it into “how dare you criticize Trump and hurt my feelings!”

It also just seems so odd to me that the basis of this constitutional crisis goes back to the Executive exerting privileged not provided for in any statute, yet judges who criticize judicial activism are so quick to say such privileges need to be taken seriously.

I mean, how can a judge criticize the basis of Roe v Wade as being a judicial fiction because it appears nowhere in the Constitution, but executive privilege is so important despite no legislature ever approving it?
How is it a key weakness? You have a dispute between the executive and legislative, and the third branch makes the call.

Without falling into the Roe v. Wade morass, there are many things that are not specifically, textually stated in the Constitution that nonetheless are a part of widely agreed upon law. To say that Roe v. Wade is wrongly decided because the Constitution doesn't mention abortion is the short, short summary of the argument which is misleading.

I don't think anyone says that if you cannot find ink, then it is completely outside of any real constitutional interpretation.

Last edited by UltraVires; 02-08-2020 at 11:15 PM.
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Old 02-09-2020, 03:20 PM
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The courts force appearance through attorneys. Trump's attorneys show up to litigate the issue.
AFAIK in my county, if I fail to appear, a warrant is issued and I'm arrested. YMMV.

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If you want to just shit all over the thread by saying that the judicial branch is corrupt (along with the executive) and I suppose the Senate, and the only true patriotic part of the government that deserves any recognition are the Democrats in the House, then have at it.
The question was, why must the Executive obey court orders but not congressional subpoenas? And in the recent impeachment investigation, why did SCOTUS delay consideration of subpoenas until they're moot, if not due to bias for the Executive i.e. corruption? Justice delayed is justice denied, init? As for the Senate, I forget the exact numbers, but ~60% of senators represent ~30% of the U.S. population. Can I say "rigged"?

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I thought this thread was serious and not, yet again, another Trump bashing thread.
I feel your pain. Not. Were I bashing this POTUS, I'd ask you: He said there are good Nazis. My father and uncles fought Nazis. Did they fight on the wrong side? No, don't bother answering. I'm going for coffee.

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Old 02-09-2020, 03:41 PM
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AFAIK in my county, if I fail to appear, a warrant is issued and I'm arrested. YMMV.


The question was, why must the Executive obey court orders but not congressional subpoenas? And in the recent impeachment investigation, why did SCOTUS delay consideration of subpoenas until they're moot, if not due to bias for the Executive i.e. corruption? Justice delayed is justice denied, init? As for the Senate, I forget the exact numbers, but ~60% of senators represent ~30% of the U.S. population. Can I say "rigged"?


I feel your pain. Not. Were I bashing this POTUS, I'd ask you: He said there are good Nazis. My father and uncles fought Nazis. Did they fight on the wrong side? No, don't bother answering. I'm going for coffee.
All of this is false. Almost every word of it so I don't know where to start.

1) You may challenge subpoenas on a matter of law through your attorney anywhere in the country.

2) SCOTUS did not "delay" anything. The justice system is slow for everyone.

3) Trump never said that there were good Nazis. He expressly stated that the "fine people on both sides" he referred to were the ones wanting to keep Confederate monuments and specifically not the neo-Nazis and white supremacists.
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Old 02-09-2020, 03:47 PM
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I still don’t get why an Executive defying a judicial order is OMG CONSTITUTION CRISIS and the Executive defying a legislative subpoena is not.
It’s been awhile since my Federal Courts class, but my recollection is that a legislative subpoena is not considered as significant as a judicial subpoena, even though they share the same name.

The reason is that a legislative subpoena is to summon a witness to testify about the situation which may call for legislation, or oversight. But if the witness doesn’t show, Congress can still take action and pass the legislation. It’s purely a political decision by Congress.

But that’s not the case in a court action. A court can’t act without evidence. If a witness doesn’t show and testify, that could frustrate the court’s function entirely. Failure to comply with a judicial subpoena is therefore more significant.
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Old 02-11-2020, 02:19 PM
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I still don’t get why an Executive defying a judicial order is OMG CONSTITUTION CRISIS and the Executive defying a legislative subpoena is not.
As I understand it, the Judiciary are the living breathing avatars of the constitution/law itself. Where the law is murky, unsettled or conflicting - they are there to provide the "correct" interpretation.

For the government to work, The Legislative can't have unlimited subpoena power over the Executive - it can't, for example, have the entire cabinet testifying before congress all day, every day. Nor can it expect the Executive to turn over all records of all internal debates, for no other reason than to dig up dirt under the guise of "oversight". Obviously, some limits need to be in place, but this isn't quite a settled issue from a legal perspective. When the Executive and Legislative have different (reasonable) interpretations of the law, the Judiciary is required to sort it out.

The Executive defying the Judiciary branch (as a whole, up through the Supreme Court) on the matter of law can't happen without a constitutional crisis. They are the law. There is no one else to turn to for a second opinion. This puts a lot of inherent power in the federal courts over the other two branches, which is why these judges are nominated by the Executive and approved by the Legislative first.

Now, the Executive being able to tie up any/all legitimate congressional oversight requests in legal fights, and drag it out over years is (at least in my opinion) a serious flaw in the system. I'm hoping that once the current disputes over Executive Privilege are resolved, and better legal precedent is established - future disputes can go through the courts much quicker. Congress can also pass a law to better detail the process and limits of congressional oversight in order to clarify the legalities (of course, passing it in the current environment is unlikely).
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Old 02-12-2020, 01:32 PM
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The results of the recent impeachment and trial process seem to indicate that while the legislative branch can demand that the executive branch submit documents and provides witnesses, the executive as a co-equal branch does not have to comply. By extension this would imply that the executive would similarly not have to comply with an order from the judicial.
I don't think that's a valid inference. Why would it be?

~Max
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Old 02-12-2020, 08:10 PM
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For all of his faults, Trump has never defied a court order.
"What happened next beggars belief. The Board of Immigration Appeals wrote, on the basis of a footnote in a letter the Attorney General issued after our opinion, that our decision is incorrect. Instead of addressing the issues we specified, the Board repeated a theme of its prior decision that the Secretary has the sole power to issue U visas and therefore should have the sole power to decide whether to waive inadmissibility. The Board did not rely on any statute, regulation, or reorganization plan transferring the waiver power under § 1182(d)(3)(A)(ii) from the Attorney General to the Secretary. Nor did the Board discuss whether only aliens outside the United States may apply for relief under § 1182(d)(3)(A)(ii). Likewise the Board did not consider whether Baez-Sanchez is entitled to a favorable exercise of whatever discretion the Attorney General retains. In sum, the Board flatly refused to implement our decision. Baez-Sanchez has filed a second petition for review.

We have never before encountered defiance of a remand order, and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails."

Jorge Baez Sanchez v. William Barr. Decided Jan. 23, 2020.
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Old 02-12-2020, 08:16 PM
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You have a dispute between the executive and legislative, and the third branch makes the call.
Do you actually agree with this? Or will this view change if Trump continues to insist the legislature has no power to even sue in court to enforce their subpoenas? Will you then adopt that view?
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Old 02-12-2020, 09:00 PM
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* Subpeona ==> with penalty.
Subpoena ==> Under penalty.
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Old 02-12-2020, 09:10 PM
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Subpoena ==> Under penalty.
Subpeony ==> Under herbaceous perennial plants.
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Old 02-12-2020, 11:07 PM
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"What happened next beggars belief. The Board of Immigration Appeals wrote, on the basis of a footnote in a letter the Attorney General issued after our opinion, that our decision is incorrect. Instead of addressing the issues we specified, the Board repeated a theme of its prior decision that the Secretary has the sole power to issue U visas and therefore should have the sole power to decide whether to waive inadmissibility. The Board did not rely on any statute, regulation, or reorganization plan transferring the waiver power under § 1182(d)(3)(A)(ii) from the Attorney General to the Secretary. Nor did the Board discuss whether only aliens outside the United States may apply for relief under § 1182(d)(3)(A)(ii). Likewise the Board did not consider whether Baez-Sanchez is entitled to a favorable exercise of whatever discretion the Attorney General retains. In sum, the Board flatly refused to implement our decision. Baez-Sanchez has filed a second petition for review.

We have never before encountered defiance of a remand order, and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails."

Jorge Baez Sanchez v. William Barr. Decided Jan. 23, 2020.
That is a single immigration board, not a Trump policy as a whole. That's respectfully an absurd example of what we are discussing in this thread.

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Do you actually agree with this? Or will this view change if Trump continues to insist the legislature has no power to even sue in court to enforce their subpoenas? Will you then adopt that view?
I've not done a lot of research on the Congressional standing issue in this area, but it seems like a ridiculous argument to me. Congress must have a remedy to enforce its subpoenas even against the President. Whether it wins on the merits, I'm not sure.

But again, much has been made of this "he said to go to court, but when we get to court he argues we don't have standing." Litigants take alternative positions all of the time, and to make it out like Trump alone is doing something nefarious harms their argument to people who know better.
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Old 02-13-2020, 08:26 AM
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That is a single immigration board, not a Trump policy as a whole.
How is it not a "Trump policy"? Being vehemently against immigration is one of the major pillars of his Presidency, and I've seen nothing to indicate that any prior President ever did what Trump's team is doing in that case.
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I've not done a lot of research on the Congressional standing issue in this area, but it seems like a ridiculous argument to me. Congress must have a remedy to enforce its subpoenas even against the President.
I'm glad we agree, and I'm glad you have an opinion on it.
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Whether it wins on the merits, I'm not sure.
Do you have a position? Can the President simply refuse to comply with Congressional subpoenas? Can a Court no longer require the President to turn over evidence (remember the 8-0 ruling in US v. Nixon?)

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But again, much has been made of this "he said to go to court, but when we get to court he argues we don't have standing." Litigants take alternative positions all of the time,
Sure, and they're mocked incessantly for it and I've consistently pointed out the flaw of it in any trial I've done where it arises. (There was one guy who argued before the jury that he was in Arizona when the attempted murder occurred, but even if he wasn't, it was in self- defense. That was a hoot of a closing argument).
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and to make it out like Trump alone is doing something nefarious harms their argument to people who know better.
Trump isn't alone. But he's also the President of the United States. Holding contradictory positions at the same time is certainly useful, but, to me, it's a huge sign of someone trying to hide their "nefarious"ness behind legal wrangling. Me, I prefer consistent, reasonable legal arguments, especially from people in power. YMMV.

Last edited by Hamlet; 02-13-2020 at 08:26 AM.
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Old 02-17-2020, 10:41 PM
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Originally Posted by Hamlet View Post
How is it not a "Trump policy"? Being vehemently against immigration is one of the major pillars of his Presidency, and I've seen nothing to indicate that any prior President ever did what Trump's team is doing in that case. I'm glad we agree, and I'm glad you have an opinion on it. Do you have a position? Can the President simply refuse to comply with Congressional subpoenas? Can a Court no longer require the President to turn over evidence (remember the 8-0 ruling in US v. Nixon?)
It's Trump's policy in the sense that he is President and in some arguable sense he "owns" every policy and action of his administration. But no President is aware of, or competent to address or implement, every aspect of their adminstration. That's why they delegate. A lot. And depend on the pre-existing structures of government.

So given that Trump almost certainly had no part in crafting the legal arguments involved or even what specific actions were taken then, no, Trump isn't responsible any more than a President is per se responsible for the actions of any member of the Executive branch acting in their specifically qualified capacity, i.e. a lawyer acting as a lawyer or a general as a general, especially where the President has no legal or military expertise. And for a President "vehemently against immigration" you would think you'd see a precipitous drop in admitted and naturalized immigrants during his administration. Do you have evidence of that or are the administration's policies towards immigration maybe a bit more nuanced (right or wrong) than your initial statement would indicate?


And you seem pretty confident of how several separation of powers issues are clearly going to be decided, despite them being ones of first impression, or at least without clear and controlling precedent. And of course the legal issue with regards to the Congressional subpoenas is not whether Congress can use the courts to enforce subpoenas at all but whether they can do so against the President, a co-equal branch. That's a pretty important detail that frames a unique legal issue where the answer is far from obvious.

Because sure, the Court in Nixon did unanimously rule that the President must comply with judicial subpoenas, but that's not the issue at question here. The different roles, powers, and natures of the Legislative branch and the Judiciary in our Constitutional system may well justify a different result when it comes to Congressional subpoenas. And even if the President is bound to submit to Congressional subpoenas in some circumstances there is always the issue of Executive Privilege and its source in what is once again a co-equal branch.


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Originally Posted by Hamlet View Post
Sure, and they're mocked incessantly for it and I've consistently pointed out the flaw of it in any trial I've done where it arises. (There was one guy who argued before the jury that he was in Arizona when the attempted murder occurred, but even if he wasn't, it was in self- defense. That was a hoot of a closing argument). Trump isn't alone. But he's also the President of the United States. Holding contradictory positions at the same time is certainly useful, but, to me, it's a huge sign of someone trying to hide their "nefarious"ness behind legal wrangling. Me, I prefer consistent, reasonable legal arguments, especially from people in power. YMMV.
Maybe legal arguments in the alternative aren't very common or useful in Criminal Law or imply some kind of nefariousness in some contexts, but they're pretty common in other types of law (Contracts comes to mind, but Constitutional Law as well, and others). Not only are they perfectly logical without any inherent negative connotations, let alone nefariousness (it is a great word), but arguably the failure to make such arguments in some legal contexts could be seen as a failure to zealously advocate for one's client.
  #33  
Old 02-18-2020, 12:14 AM
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Maybe legal arguments in the alternative aren't very common or useful in Criminal Law or imply some kind of nefariousness in some contexts, but they're pretty common in other types of law (Contracts comes to mind, but Constitutional Law as well, and others). Not only are they perfectly logical without any inherent negative connotations, let alone nefariousness (it is a great word), but arguably the failure to make such arguments in some legal contexts could be seen as a failure to zealously advocate for one's client.
Yeah, nothing nefarious about it at all. I do it on many occasions. I once had a client with an upcoming trial who posted on Facebook about a key prosecution witness saying that "[Witness] is a snitch bitch and I wish she would die!" She was then charged with witness intimidation.

I argued alternatively in a motion to dismiss that: 1) the application of the witness intimidation statute in this particular case was unconstitutional. My client had an absolute First Amendment right to give her opinion of the witness and could wish death on someone and express her view that she wished death on someone, but failing that, 2) her speech did not fall under the specific language of the statute as there were no threats. She merely called her a name and wished that the witness would die. She didn't say that she would kill her or that others would. She only wished that would happen.

So I argued in the alternative. Is that nefarious?
  #34  
Old 02-18-2020, 11:57 AM
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Originally Posted by UltraVires View Post
Yeah, nothing nefarious about it at all. I do it on many occasions. I once had a client with an upcoming trial who posted on Facebook about a key prosecution witness saying that "[Witness] is a snitch bitch and I wish she would die!" She was then charged with witness intimidation.

I argued alternatively in a motion to dismiss that: 1) the application of the witness intimidation statute in this particular case was unconstitutional. My client had an absolute First Amendment right to give her opinion of the witness and could wish death on someone and express her view that she wished death on someone, but failing that, 2) her speech did not fall under the specific language of the statute as there were no threats. She merely called her a name and wished that the witness would die. She didn't say that she would kill her or that others would. She only wished that would happen.

So I argued in the alternative. Is that nefarious?
Seems to be perfectly reasonable to me. I do think the situation Hamlet described is different, where you are offering two different and mutually exclusive versions of how events occurred. Not necessarily nefarious, but different and potentially nefarious I guess (this has to be a personal record for use of that word in conversation). But when the arguments in the alternative involve the interpretation of legal language (statutes, contracts, wills, the Constitution) then the somewhat abstract nature of language lends itself to such arguments without any inherent logical contradictions or negative connotations.
  #35  
Old 02-18-2020, 12:50 PM
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It's Trump's policy in the sense that he is President and in some arguable sense he "owns" every policy and action of his administration.
Cool. I'm not asserting Trump ordered the BOI to commit contempt, just that his policies and positions certainly endorse it. How much weight you want to give it is up to you.
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Originally Posted by DirkHardly
And for a President "vehemently against immigration" you would think you'd see a precipitous drop in admitted and naturalized immigrants during his administration.
The one thing the Trump administration is better at than firing up their base with anti-immigration rhetoric is being totally incompetent. Are you actually asserting that Trump is not anti-immigration? Do you believe that the travel bans, the idiotic wall, and not allowing immigrants who may use public aid are not anti-immigration?
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Originally Posted by DirkHardly
And you seem pretty confident of how several separation of powers issues are clearly going to be decided, despite them being ones of first impression, or at least without clear and controlling precedent.
Let me be clear. I think not just the law, but the policy behind the law, is pretty darn clear. I am not, given the Republican politicialization of the Supreme Court, confident that the Supreme Court would rule so. And, once again, you do have the Nixon case as guiding precedent.

But do you draw any conclusions from the fact that this is a relatively novel legal argument? Does the fact that a vast majority of times these issues are dealt with through negotiation, and that very few, if any, presidents' have asserted a complete and total denial to all subpoenas and witnesses like Trump has done mean anything to you? Do you think Clinton just forgot to make this argument during his impeachment? This now-asserted power of the President to completely ignore the legislatures' oversight power really could have come in handy for Nixon. Weird how he didn't make and win that argument.

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Originally Posted by Dirk Hardly
And of course the legal issue with regards to the Congressional subpoenas is not whether Congress can use the courts to enforce subpoenas at all but whether they can do so against the President, a co-equal branch. That's a pretty important detail that frames a unique legal issue where the answer is far from obvious.
Do you have an supported opinion on this "unique legal issue"? Or are you, like UltraVires, going to dodge my questions?

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Originally Posted by DirkHardly
Maybe legal arguments in the alternative aren't very common or useful in Criminal Law or imply some kind of nefariousness in some contexts, but they're pretty common in other types of law (Contracts comes to mind, but Constitutional Law as well, and others). Not only are they perfectly logical without any inherent negative connotations, let alone nefariousness (it is a great word), but arguably the failure to make such arguments in some legal contexts could be seen as a failure to zealously advocate for one's client.
As I said, YMMV. While, as a lawyer, I can completely understand that desire to make competing claims in a contract case, I can also recognize the weaselyness of trying to argue out of both sides of your mouth. Trump ... oh, sorry, he didn't actually do it himself .... Trump's legal team argued in his impeachment that the subpoenas sought should have been taken to the judiciary to be enforced. Then, Trump ... oops ... Trump's legal team ... argued in court that the subpoenas sought for the testimony of Don McGahn can not be brought to the judiciary to be enforced. Those two arguments, while certainly "alternatives", are also contradictory. From that, I conclude that Trump .... sorry, Trump's legal team ... is full of shit and are willing to say anything to get the result they want. They'll tell Congress that they should use the judiciary to enforce the subpoenas, and tell the judiciary that they can't enforce the subpoenas. They can't both be correct. And I expect consistent, logical arguments from the people in power. Again, YMMV.
  #36  
Old 02-18-2020, 02:12 PM
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Cool. I'm not asserting Trump ordered the BOI to commit contempt, just that his policies and positions certainly endorse it. How much weight you want to give it is up to you. The one thing the Trump administration is better at than firing up their base with anti-immigration rhetoric is being totally incompetent. Are you actually asserting that Trump is not anti-immigration? Do you believe that the travel bans, the idiotic wall, and not allowing immigrants who may use public aid are not anti-immigration?
Let me be clear, I'm no fan of Trump, nor many of his actions and rhetoric concerning various aspects of our legal system. And his jackassery has certainly influenced his subordinates, as one would expect. That being said, despite Trump being the President most deserving of criticism in my lifetime his critics often go to ridiculous extremes in their attacks, far beyond what is justified by the facts or even the law. Take immigration, Trump is certainly opposed to certain forms of immigration but is there really any evidence that he is opposed to immigration in general? Once again, check the statistics for his administration and show me how they demonstrate a blanket opposition to immigration by this administration.

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Originally Posted by Hamlet View Post
Let me be clear. I think not just the law, but the policy behind the law, is pretty darn clear. I am not, given the Republican politicialization of the Supreme Court, confident that the Supreme Court would rule so. And, once again, you do have the Nixon case as guiding precedent.

But do you draw any conclusions from the fact that this is a relatively novel legal argument? Does the fact that a vast majority of times these issues are dealt with through negotiation, and that very few, if any, presidents' have asserted a complete and total denial to all subpoenas and witnesses like Trump has done mean anything to you? Do you think Clinton just forgot to make this argument during his impeachment? This now-asserted power of the President to completely ignore the legislatures' oversight power really could have come in handy for Nixon. Weird how he didn't make and win that argument.
Why do keep raising the precedent of Nixon when that involved a different legal issue and that Court explicitly doubted its value as precedent? If you can't acknowledge the possible Constitutional distinction between the function of the Judiciary and its subpoena power versus the different role of the Legislature and the function of its subpoena power then I don't know what to tell you. And so what if such issues were negotiated before? This time they weren't and that's ultimately irrelevant to the legal issues at hand.

Also, how many times in the history of the US do you think Congress has subpoenaed the President? Remember the subpoenas at issue in Nixon were Judicial and not Legislative. And since Clinton's impeachment was based on his conduct in legal proceedings (under the Judicial branch) what do you think he might have gained by resisting any Congressional subpoenas if he would likely simply end up as the subject of one issued by the Judiciary? Requested by the Special Prosecutor investigating criminal behavior perhaps.

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Originally Posted by Hamlet View Post
Do you have an supported opinion on this "unique legal issue"? Or are you, like UltraVires, going to dodge my questions?
Are you really asking me for a supported opinion on a rare legal issue of first impression? What support have you offered for your own position besides the highly dubious precedent of Nixon? And why do you have "unique legal issue" in quotes as if that's not entirely accurate?

I'm not dodging the issue, I'm simply not going to form a conclusion until I've seen all the arguments. And since no one is paying me to spend dozens of hours of research to come up with those arguments myself I'll just wait for others to do it for me and reserve final judgement until then. Regardless, I'm fairly certain that even if Congress can force the Executive to comply with its subpoenas then such authority will be far from absolute and checked significantly by the strength of Executive Privilege.

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Originally Posted by Hamlet View Post
As I said, YMMV. While, as a lawyer, I can completely understand that desire to make competing claims in a contract case, I can also recognize the weaselyness of trying to argue out of both sides of your mouth. Trump ... oh, sorry, he didn't actually do it himself .... Trump's legal team argued in his impeachment that the subpoenas sought should have been taken to the judiciary to be enforced. Then, Trump ... oops ... Trump's legal team ... argued in court that the subpoenas sought for the testimony of Don McGahn can not be brought to the judiciary to be enforced. Those two arguments, while certainly "alternatives", are also contradictory. From that, I conclude that Trump .... sorry, Trump's legal team ... is full of shit and are willing to say anything to get the result they want. They'll tell Congress that they should use the judiciary to enforce the subpoenas, and tell the judiciary that they can't enforce the subpoenas. They can't both be correct. And I expect consistent, logical arguments from the people in power. Again, YMMV.
Perhaps. I haven't read the particular arguments but it's also possible that certain factual differences are relevant enough to compel a different result. Like Congress subpoenaing the President vs practically any other citizen. Or the nature of Congressional subpoena power vs that of the Judiciary. As a lawyer you know this happens all the time. And arguing in the alternative is usually confined to a single legal issue such as "what does "possess" mean?" or "what does "Congress shall make no law..." mean?" Arguing differing positions on what is potentially separate legal issues based on legally relevant distinctions (the unique Constitutional role of the President for instance) is not inherently contradictory.
  #37  
Old 02-18-2020, 02:48 PM
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Let me be clear, I'm no fan of Trump, nor many of his actions and rhetoric concerning various aspects of our legal system. And his jackassery has certainly influenced his subordinates, as one would expect. That being said, despite Trump being the President most deserving of criticism in my lifetime his critics often go to ridiculous extremes in their attacks, far beyond what is justified by the facts or even the law. Take immigration, Trump is certainly opposed to certain forms of immigration but is there really any evidence that he is opposed to immigration in general?
Does "any evidence" include almost every word out his mouth about immigration, his idiotic desire to build a wall, his increase in the budget and staffing for Mexican/American border partol, his expanded use of ICE, his zero tolerance policy, his use of National Guard at the border, his end of the Family Case Management Program, and a slew of others. If you're interested, you can check out the pdf available from the Migrant Policy Institute about Trump's immigration policies. I admit, they are mostly used against immigrants of a certain ... racial or religious makeup ... but I'm not sure that necessarily works in his favor.

I admit. I'm kinda shocked that the idea that Trump is anti-immigration is even slightly contested.

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Originally Posted by DirkHardly
Why do keep raising the precedent of Nixon when that involved a different legal issue and that Court explicitly doubted its value as precedent?
Because of its discussion of executive privilege, which is one of Trump's arguments. I'm sure you understand that, when a President first asserts a defense to an investigation to a degree that no other President in the history of the US ever attempted, you're not going to find a specific precedent. But to ignore all the other caselaw touching on the issue is just silly. That's how lawyers work, they look at analogous or related caselaw. Nixon is one of those.

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Originally Posted by DirkHardly
Also, how many times in the history of the US do you think Congress has subpoenaed the President?
Many, many times. A vast majority of them are resolved by the President turning over what is requested or through negotiation. The idea that these subpoenas are somehow unheard of is just silly. Check Burford, Miers, and Bolton contempts. What, generally speaking, happens is that both sides posture, the executive branch delays, the cases go on and on in the courts for years, and then there is a compromise. I anticipate the same happening here, with the Supreme Court dodging the issue, the parties waiting until the election, and nothing getting resolved until either Trump is out of office or the Democrats quit caring.

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Originally Posted by Dirkhardly
Are you really asking me for a supported opinion on a rare legal issue of first impression?
Yeah. Is it really a bizarre request to have you express your opinion on a topic? Is this something stunning to you?

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Originally Posted by DirkHardly
I'm not dodging the issue, I'm simply not going to form a conclusion until I've seen all the arguments.
Got it. You don't know where you stand on the legal issue, but you think I'm wrong. You do you.

Last edited by Hamlet; 02-18-2020 at 02:51 PM.
  #38  
Old 02-18-2020, 04:45 PM
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Originally Posted by jebert
The results of the recent impeachment and trial process seem to indicate that while the legislative branch can demand that the executive branch submit documents and provides witnesses, the executive as a co-equal branch does not have to comply. By extension this would imply that the executive would similarly not have to comply with an order from the judicial.
I don't think that's a valid inference. Why would it be?

~Max
No responses.

I can agree with the premises that the executive branch can defy some requests from co-equal branches, and that the judicial branch is a co-equal branch. It follows that the executive branch can defy some requests from the judicial branch. Without being more nuanced as to which requests are mandatory under what circumstances, that is as far as I agree with the original post.

The way jebert wrote the post, it appeared that the argument was more like this: the executive branch can defy any request from co-equal branches, and the judicial branch is a co-equal branch. It follows that the executive branch can defy any requests from the judicial branch. I strongly disagree with the first premise, because I do not think the executive branch can defy any request from a co-equal branch.

It would appear that jebert reaches this first premise by generalizing the recent impeachment procedures in the House of Representatives. I can only guess that the argument is, because the President refused to comply with certain subpoenas from a co-equal branch, he can refuse to comply with all subpoenas from co-equal branches. But I strongly disagree with that generalization. The President's own rationale for noncompliance was more narrow than that; he claimed that specific subpoenas lacked the authority of the House of Representatives and denied him certain due process rights, and I think he claimed executive privilege with regards to certain documents and advisors on foreign policy and national security grounds.

~Max
  #39  
Old 02-18-2020, 05:42 PM
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Does "any evidence" include almost every word out his mouth about immigration, his idiotic desire to build a wall, his increase in the budget and staffing for Mexican/American border partol, his expanded use of ICE, his zero tolerance policy, his use of National Guard at the border, his end of the Family Case Management Program, and a slew of others. If you're interested, you can check out the pdf available from the Migrant Policy Institute about Trump's immigration policies. I admit, they are mostly used against immigrants of a certain ... racial or religious makeup ... but I'm not sure that necessarily works in his favor.
Once again, really? "I admit, they are mostly used..." is somehow not an admission that what I said about Trump's immigration policy, namely that his opposition to immigration is largely confined to certain aspects, is accurate? How in the world can you possibly use examples of limited and specific actions (eg. a wall along one border, banning immigration from a small minority of countries) and somehow expand that to a general and "vehement" opposition to all immigration? You would think such a person would build two border walls and ban immigration from every country. You know, in his vehemence.

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Because of its discussion of executive privilege, which is one of Trump's arguments. I'm sure you understand that, when a President first asserts a defense to an investigation to a degree that no other President in the history of the US ever attempted, you're not going to find a specific precedent. But to ignore all the other caselaw touching on the issue is just silly. That's how lawyers work, they look at analogous or related caselaw. Nixon is one of those.
First of all, the EP issue is irrelevant unless the Court first determines that Congress can compel the Executive through its subpoena power under these facts. That's the threshold Separation of Powers issue and Nixon is at best somewhat analogous on that issue and at worst pretty much silent. Maybe you should have specified which legal issue you were referring to rather than simply naming the case as if its relevance was self-evident.

As far as EP, the most you could practically get from Nixon (besides confirming its existence) is that even if the Court can compel the President to comply with a Congressional subpoena under a particular set of facts then that subpoena may or not be defeated by EP. Unless you're skipping the threshold issue and going right to the claim of Executive Privilege as it relates to the particular subject of Trump subpoenas and arguing that Nixon's precedent compels the Court to reject this particular application of EP I'm not sure why you believe it lends any significant weight to your position

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Originally Posted by Hamlet View Post
Many, many times. A vast majority of them are resolved by the President turning over what is requested or through negotiation. The idea that these subpoenas are somehow unheard of is just silly. Check Burford, Miers, and Bolton contempts. What, generally speaking, happens is that both sides posture, the executive branch delays, the cases go on and on in the courts for years, and then there is a compromise. I anticipate the same happening here, with the Supreme Court dodging the issue, the parties waiting until the election, and nothing getting resolved until either Trump is out of office or the Democrats quit caring.

Yeah. Is it really a bizarre request to have you express your opinion on a topic? Is this something stunning to you?

Got it. You don't know where you stand on the legal issue, but you think I'm wrong. You do you.
What do you consider to be "many, many times" in the context of some 240+ years? And where did I suggest it was anything resembling "unheard of"? The fact is that Congressional subpoenas of the President are relatively, if not extremely, rare compared to other functions of our political/legal system. And since they can cover a wide variety of subjects and political/legal contexts they essentially need to be evaluated on an individual basis. Just because Congress's subpoena power has been upheld under certain fact patterns in no way implies that it would be valid under another legally distinguishable fact pattern. And once again, the fact that these are usually negotiated out or no prior President has taken the issue before the Court is completely irrelevant from a legal standpoint.

And for someone who has provided no real legal analysis of the issues besides repeatedly bringing up Nixon without much additional comment you seem to feel you are somehow owed a comprehensive legal analysis on these issues as if you have made any argument demanding anything beyond the most cursory rebuttal. Again, if I was to undertake the research needed to competently answer these questions I might as well turn it into a journal article. So why do you think your simplistic arguments are worthy of anything more than a simple response?

Lastly, you might want to save the condescension and dismissive tone for someone who actually said the things you accuse me of saying. If you actually read what I posted I never at any time accused you of being wrong but instead stated things like the answer was far from obvious and that your seemingly absolute confidence in your conclusions was perhaps misplaced. Those aren't remotely the same thing and it certainly doesn't help that you have to this point failed to make any serious legal arguments in support of that opinion. Fine attention to detail there, Counselor.
  #40  
Old 02-19-2020, 06:27 AM
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Seems to be perfectly reasonable to me. I do think the situation Hamlet described is different, where you are offering two different and mutually exclusive versions of how events occurred. Not necessarily nefarious, but different and potentially nefarious I guess (this has to be a personal record for use of that word in conversation). But when the arguments in the alternative involve the interpretation of legal language (statutes, contracts, wills, the Constitution) then the somewhat abstract nature of language lends itself to such arguments without any inherent logical contradictions or negative connotations.
Are you referring to the fact that Trump's attorneys went to court and argued (paraphrasing) that you should not enforce the House subpoena because this is a political question to be resolved by the other branches and if Congress doesn't like it, then they can impeach and remove me?

But then when he was on trial in the Senate, he had Dershowitz say, "Hey, you can't impeach and remove a president just because he asserted a privilege. He has to commit a crime first! Go to court if you want to enforce your subpoena!" ???

I don't see anything wrong with that. Obviously opposing counsel could use his prior positions against him in either tribunal and ask him (his attorneys) point blank, "So what is your overall position here? Can nobody enforce these subpoenas?" and expect an answer.

However, I see nothing wrong with advocating those positions for a client. At the end of the day you need a good answer to that question, but there is nothing wrong with saying that the judiciary should not do X for this reason while also saying that Congress shouldn't do X for Y reason. Maybe those bodies agree that Z reason is controlling so one or the other should do it. That's what litigation is. But don't make your opponents' arguments for them.
  #41  
Old 02-19-2020, 10:47 AM
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Once again, really? "I admit, they are mostly used..." is somehow not an admission that what I said about Trump's immigration policy, namely that his opposition to immigration is largely confined to certain aspects, is accurate? How in the world can you possibly use examples of limited and specific actions (eg. a wall along one border, banning immigration from a small minority of countries) and somehow expand that to a general and "vehement" opposition to all immigration? You would think such a person would build two border walls and ban immigration from every country. You know, in his vehemence.
You've lost me. I argue that Trump is anti-immigration and provide a report of concrete examples of his policies showing such. You respond that he's not anti-ALL immigration, just anti-those people immigration, as if that somehow makes a point. Juan Baez Sanchez is Mexican, the Trump administration refused to follow a court order. Pointing out that Trump might be fine with more rich, white Europeans immigrating to the US does absolutely nothing to counter my example.

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Originally Posted by DirkHardly
First of all, the EP issue is irrelevant unless the Court first determines that Congress can compel the Executive through its subpoena power under these facts. That's the threshold Separation of Powers issue and Nixon is at best somewhat analogous on that issue and at worst pretty much silent. Maybe you should have specified which legal issue you were referring to rather than simply naming the case as if its relevance was self-evident.

As far as EP, the most you could practically get from Nixon (besides confirming its existence) is that even if the Court can compel the President to comply with a Congressional subpoena under a particular set of facts then that subpoena may or not be defeated by EP. Unless you're skipping the threshold issue and going right to the claim of Executive Privilege as it relates to the particular subject of Trump subpoenas and arguing that Nixon's precedent compels the Court to reject this particular application of EP I'm not sure why you believe it lends any significant weight to your position
I guess I'll try again. What is your position on this topic? Do you believe that Congress cannot subpoena the Executive Branch? Or is it some set of specific facts in these cases (because it's actually multiple cases) that makes Congressional subpoenas invalid? What are those facts and how do they distinguish this from other legislative subpoenas. or the

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Originally Posted by DirkHardly
Again, if I was to undertake the research needed to competently answer these questions I might as well turn it into a journal article.
And here's the heart of my issue with your "debate" tactic. You expect me to do all the work, and you to do nothing other than to attempt to poke holes without any actual citations or anything else. So you get to say "Well, you clearly didn't do enough legal research" and, in the very next breath say "I'm not going to do any legal research". It's certainly a position to take, but I hope you'll excuse me if I point out the unfairness of it.

I hereby adopt the rationale of the court in this case. I also adopt the rationale of the this brief. There are a multitude of individual issue and cases and, since I'm having trouble pinpointing exactly what you have a problem with because you won't actually give an opinion on them, I'm not going to unpack them all unilaterally.

So, if you're actually interested in debating the legalities, we can certainly do that. You can point out the specific parts of my cited items that you disagree with and support your view if you like. But I'm not going to break down the issues in these cases (again, multiple cases) when you have avoided making any statement about your own view and indicated that you have no interest in actually researching it. I've done that with UltraVires and tire of being the only person to put forth effort at legal analysis.

Just let me know if you want to do it, and I can try and find some time. But I'm not going to commit to doing all your work for you too.
  #42  
Old 02-19-2020, 12:36 PM
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there is nothing wrong with saying that the judiciary should not do X for this reason while also saying that Congress shouldn't do X for Y reason.
I see a major problem with the dual arguments,
  1. A should not do X because B should do X instead
  2. B should not do X because A should do X instead.
Each argument relies on a premise that contradicts the other argument's conclusion. Given such a contradiction, the overall position that espouses both arguments is incoherent.

Now, you can replace argument #2 with:
2. B should not do X because Y.
but the position is still incoherent if Y means "A should do X instead".

~Max
  #43  
Old 02-22-2020, 09:51 AM
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You've lost me. I argue that Trump is anti-immigration and provide a report of concrete examples of his policies showing such. You respond that he's not anti-ALL immigration, just anti-those people immigration, as if that somehow makes a point. Juan Baez Sanchez is Mexican, the Trump administration refused to follow a court order. Pointing out that Trump might be fine with more rich, white Europeans immigrating to the US does absolutely nothing to counter my example.
It's not my fault you used an overbroad, unqualified description of Trump simply being anti-immigration, which in plain English indicates a general opposition to all aspects of immigration, or at least a significant majority of them. So your examples that deal with very limited and narrow aspects of immigration fall way, way short of logically justifying your over-simplistic characterization of Trump. That's not only my point but it's absolutely correct.

Because, of course, issues like the border wall and ICE policies deal with illegal immigration. And it seems a bit disingenuous to attribute any of those issues to a general anti-immigration attitude, especially on the part of a person sworn to uphold the laws. As far as a ban on immigration from a handful of countries or ending DACA, once again, those are aspects of immigration that are narrow and limited and whose effects are relatively small on the overall influx of immigrants into the US.

My evidence for this is basic logic and more importantly the lack of a precipitous drop in those immigration numbers under the Trump administration. You know, the thing which might actually lend some actual evidence to your position if it in fact existed. So yes, those rich white Europeans, and as you seem to have forgotten, all those other immigrants from around the world, do quite nicely refute your point. Try not making one beyond the evidence you have to support it next time.


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Originally Posted by Hamlet View Post
I guess I'll try again. What is your position on this topic? Do you believe that Congress cannot subpoena the Executive Branch? Or is it some set of specific facts in these cases (because it's actually multiple cases) that makes Congressional subpoenas invalid? What are those facts and how do they distinguish this from other legislative subpoenas. or the

And here's the heart of my issue with your "debate" tactic. You expect me to do all the work, and you to do nothing other than to attempt to poke holes without any actual citations or anything else. So you get to say "Well, you clearly didn't do enough legal research" and, in the very next breath say "I'm not going to do any legal research". It's certainly a position to take, but I hope you'll excuse me if I point out the unfairness of it.

I hereby adopt the rationale of the court in this case. I also adopt the rationale of the this brief. There are a multitude of individual issue and cases and, since I'm having trouble pinpointing exactly what you have a problem with because you won't actually give an opinion on them, I'm not going to unpack them all unilaterally.

So, if you're actually interested in debating the legalities, we can certainly do that. You can point out the specific parts of my cited items that you disagree with and support your view if you like. But I'm not going to break down the issues in these cases (again, multiple cases) when you have avoided making any statement about your own view and indicated that you have no interest in actually researching it. I've done that with UltraVires and tire of being the only person to put forth effort at legal analysis.

Just let me know if you want to do it, and I can try and find some time. But I'm not going to commit to doing all your work for you too.
And once again you seem to miss the point completely. This thread was about the general topic of whether Congress can compel the Executive branch through its subpoena power, and the answer to that is unquestionably "maybe" because the answer is highly fact-dependent. What are some examples of those relevant facts?

1) As others have mentioned, the Congressional power to subpoena is not unlimited. It must be in furtherance of their function, both as one delegated by the people to the Gov't generally and to the Legislative branch specifically. Also, and again as mentioned by others, there are pretty good arguments to believe that Congress's subpoena power is not as broad as that of the Judiciary because of those differing Constitutional functions. However, even if the issue is one where Congress's actions are tied to its legitimate functions then it may still butt into the actions of the other branches performing their own respective functions in that domain and raise Separation of Powers issues even at this stage.

2) The subpoena itself, even if in furtherance of a legitimate overall Legislative function, is still limited in its subject and scope to those people and things relevant to the inquiry, a very fact-specific determination. Furthermore, if the person or thing that is the subject of the subpoena is part of a co-equal branch, as in the Executive, then Separation of Powers doctrines, in this case Executive Privilege, may well prevent Congress from compelling the appearance of an Executive branch member or submission of documents (or whatever), even if the subpoena is otherwise valid. And this yet again very fact-specific determination goes to the relationship the person or thing has to the Constitutional functions of the Executive.

3) As far as Congress having a right to sue or a remedy you have the Political Question doctrine, simultaneously a self-imposed, principled restraint on the Judiciary and the ultimate dodge. This limitation and its potential relevance has been pointed out by several courts and if any particular case veers into this domain then Congress would indeed be without a right to sue (at least meaningfully) and certainly a remedy, since the Court will claim no jurisdiction to hear the dispute. And for the Nth time, the answer to that question is very fact-specific.

So that's pretty much as far as one can go absent any particular hypothetical facts or an actual case. And yet, despite you pointing to no such specific case until your last post, and despite your "legal analysis" up to this point consisting primarily of repeatedly name-dropping Nixon without really addressing its potential limitations or even inapplicability, you seem to believe you have somehow delivered a somehow meaningful legal analysis where I (and UltraVires) have not. That is, unless you believe that Congress can compel the Executive to comply with any subpoena in all circumstances, in which case you are simply making the same type of broad, unsupportable assertion you made with Trump re immigration.

Maybe, you should do some homework of your own. Then you might be where I am and this stuff might be a little clearer to you.
  #44  
Old 02-22-2020, 10:43 AM
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Are you referring to the fact that Trump's attorneys went to court and argued (paraphrasing) that you should not enforce the House subpoena because this is a political question to be resolved by the other branches and if Congress doesn't like it, then they can impeach and remove me?

But then when he was on trial in the Senate, he had Dershowitz say, "Hey, you can't impeach and remove a president just because he asserted a privilege. He has to commit a crime first! Go to court if you want to enforce your subpoena!" ???

I don't see anything wrong with that. Obviously opposing counsel could use his prior positions against him in either tribunal and ask him (his attorneys) point blank, "So what is your overall position here? Can nobody enforce these subpoenas?" and expect an answer.

However, I see nothing wrong with advocating those positions for a client. At the end of the day you need a good answer to that question, but there is nothing wrong with saying that the judiciary should not do X for this reason while also saying that Congress shouldn't do X for Y reason. Maybe those bodies agree that Z reason is controlling so one or the other should do it. That's what litigation is. But don't make your opponents' arguments for them.
I was actually referring to Hamlet's example of something like someone claiming to not be present at a homicide, alternatively claiming to have been present but not to have killed the victim, and lastly that they killed the victim but it was self-defense. Those are mutually exclusive arguments made about an objective set of factual events and I agree there's an air of unseemliness about that even if it's somehow strategically justifiable in terms of representing a client's interests.

But language, including legal language, is never objective (barring other definitions of the term) and shouldn't bear any of the same stigma. There's nothing wrong with advocating for an interpretation of a term most beneficial to one's case while simultaneously advocating for a second, less ideal interpretation (or third, etc.) if the Court refuses to buy the first. That happens all the time and in some cases is practically required.

Also, of course some arguments which may seem contradictory might not be. All lawyers and legal scholars know (or should) that any legally relative distinction can mean all the difference in analysis and/or outcome, even if they are otherwise identical. So unless two legal issues, or even sub-issues, match up perfectly as far as relevant facts then there is not really arguing in the alternative occurring. I think your examples seem primarily to fall into this category so I would agree there would be nothing inherently untoward about them and they may even be practically required as part of a duty to one's client.
  #45  
Old 02-22-2020, 11:08 AM
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I was actually referring to Hamlet's example of something like someone claiming to not be present at a homicide, alternatively claiming to have been present but not to have killed the victim, and lastly that they killed the victim but it was self-defense. Those are mutually exclusive arguments made about an objective set of factual events and I agree there's an air of unseemliness about that even if it's somehow strategically justifiable in terms of representing a client's interests.

But language, including legal language, is never objective (barring other definitions of the term) and shouldn't bear any of the same stigma. There's nothing wrong with advocating for an interpretation of a term most beneficial to one's case while simultaneously advocating for a second, less ideal interpretation (or third, etc.) if the Court refuses to buy the first. That happens all the time and in some cases is practically required.

Also, of course some arguments which may seem contradictory might not be. All lawyers and legal scholars know (or should) that any legally relative distinction can mean all the difference in analysis and/or outcome, even if they are otherwise identical. So unless two legal issues, or even sub-issues, match up perfectly as far as relevant facts then there is not really arguing in the alternative occurring. I think your examples seem primarily to fall into this category so I would agree there would be nothing inherently untoward about them and they may even be practically required as part of a duty to one's client.
I agree, and hate to keep fighting, but I can see a case where even arguing the hypo you posed to a jury is good strategy.

As you know, it is about what the prosecution has proven beyond a reasonable doubt, not what happened. This isn't a detective novel where the big reveal is shown at the end. All the jury is there to do is determine reasonable doubt.

So first, I could argue that there is no proof that my client was even there. No fingerprints, no DNA. Yeah, they had that one witness who said that a guy who looked like my client was there, but is that beyond a reasonable doubt? I say no.

But let's say you believe that the witness got a good look and you believe that my client was there. The witness also saw another man there at the time and we do not know what happened after that. Maybe my client was lucky to get out of there without being killed my that man as well? Beyond a reasonable doubt that my guy is guilty? No.

But let's say that you don't believe that. Remember the witness heard an argument? And the judge has instructed that you must find the absence of self defense beyond a reasonable doubt. Do we know what happened during the argument? Did the deceased pull a gun or knife? We don't know. Beyond a reasonable doubt? I say no.

You're allowing the jury to believe some or all of the prosecution's case while still permitting them to vote not guilty and at the same time pointing out that there are many holes in the case.

Of course if your client testified that he was not there, or if he was he didn't kill him, but if he did it was self-defense, that would be silly, and it seems as if that is the parallel Hamlet is trying to make here.
  #46  
Old 02-22-2020, 02:49 PM
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So yes, those rich white Europeans, and as you seem to have forgotten, all those other immigrants from around the world, do quite nicely refute your point.
You know, I was going to ask why you think that the fact there are immigrants coming from certain, very white, countries means Trump isn't anti-immigration from Mexico, but I realized I really don't care. It's a minor point that has nothing to do with the example I gave. So, by all means, keep beating the "Trump isn't anti-immgration" drum to your hearts content.

Quote:
Originally Posted by DirkHardly
Maybe, you should do some homework of your own. Then you might be where I am and this stuff might be a little clearer to you.
I really don't get your point. If the entirety of your point is that my "legal analysis" in this thread so far has been minimal, that's fine. Absolutely correct. I haven't gotten into the details of the individual cases, I've only drawn large scale generalities, and, while I've certainly provided a starting point, I have not put forth the effort to really delve deeply into the topic. You sure got me on that.

Funny thing, though. Neither have you. Pot. Kettle. You get the point.

So, I guess I'll ask, yet again, what your position is and what support you have for it. How would you rule in the McGahn case? Do you think Trump's argument in the two Mazar's case is correct? Do you have any actual opinion to offer, or is backhanded insults the best you got?

As I said, if you want to get into the legalities of the cases, we certainly can. So once you put aside your bluster and chest beating, let me know and we can pick one of the cases and get into it.
  #47  
Old 02-22-2020, 07:02 PM
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You know, I was going to ask why you think that the fact there are immigrants coming from certain, very white, countries means Trump isn't anti-immigration from Mexico, but I realized I really don't care. It's a minor point that has nothing to do with the example I gave. So, by all means, keep beating the "Trump isn't anti-immgration" drum to your hearts content.
So do you believe that it is fair to characterize someone who has only voiced an opinion that civilians should not be allowed to own automatic firearms as "anti-gun" in the context of gun rights? Or could that single position be consistent with everything from opposing all civilian gun ownership to favoring civilian gun ownership for all firearms save those capable of automatic fire? In other words, everything from wholly "anti-gun" to actually almost entirely "pro-gun." See how that is pretty analogous to your claims about Trump being simply anti-immigration?

But more importantly here are some actual statistics:

DHS 2017 Yearbook of Immigration Statistics
(PDF link)

https://www.dhs.gov/sites/default/fi...ics_2017_0.pdf

Check out Table 3 on page 12 of the document for example, Persons Obtaining Lawful Permanent Resident Status by Region and Country Of Birth: FY 2008-2017. And here's an additional link for the FY 2018 version (https://www.dhs.gov/immigration-stat...ok/2018/table3). Notice how not only the totals but the breakdown by region stays remarkably consistent across three administrations? And do you notice that the number of "rich white Europeans" consistently make up a small fraction of the overall total by any metric? So how do you reconcile these statistics and the others in the document with your various claims about Trump on this topic?

Quote:
Originally Posted by Hamlet View Post
I really don't get your point. If the entirety of your point is that my "legal analysis" in this thread so far has been minimal, that's fine. Absolutely correct. I haven't gotten into the details of the individual cases, I've only drawn large scale generalities, and, while I've certainly provided a starting point, I have not put forth the effort to really delve deeply into the topic. You sure got me on that.

Funny thing, though. Neither have you. Pot. Kettle. You get the point.

So, I guess I'll ask, yet again, what your position is and what support you have for it. How would you rule in the McGahn case? Do you think Trump's argument in the two Mazar's case is correct? Do you have any actual opinion to offer, or is backhanded insults the best you got?

As I said, if you want to get into the legalities of the cases, we certainly can. So once you put aside your bluster and chest beating, let me know and we can pick one of the cases and get into it.
You know what? Before I get further into...all of this, let's start with a bit of clarification. What did you mean in post #35 when you stated the following: "Let me be clear. I think not just the law, but the policy behind the law, is pretty darn clear."?
  #48  
Old 02-22-2020, 07:37 PM
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I agree, and hate to keep fighting, but I can see a case where even arguing the hypo you posed to a jury is good strategy.

As you know, it is about what the prosecution has proven beyond a reasonable doubt, not what happened. This isn't a detective novel where the big reveal is shown at the end. All the jury is there to do is determine reasonable doubt.

So first, I could argue that there is no proof that my client was even there. No fingerprints, no DNA. Yeah, they had that one witness who said that a guy who looked like my client was there, but is that beyond a reasonable doubt? I say no.

But let's say you believe that the witness got a good look and you believe that my client was there. The witness also saw another man there at the time and we do not know what happened after that. Maybe my client was lucky to get out of there without being killed my that man as well? Beyond a reasonable doubt that my guy is guilty? No.

But let's say that you don't believe that. Remember the witness heard an argument? And the judge has instructed that you must find the absence of self defense beyond a reasonable doubt. Do we know what happened during the argument? Did the deceased pull a gun or knife? We don't know. Beyond a reasonable doubt? I say no.

You're allowing the jury to believe some or all of the prosecution's case while still permitting them to vote not guilty and at the same time pointing out that there are many holes in the case.

Of course if your client testified that he was not there, or if he was he didn't kill him, but if he did it was self-defense, that would be silly, and it seems as if that is the parallel Hamlet is trying to make here.
I think we may be talking past each other because I don't really see any significant point of disagreement on my part with what you are saying here. It seems fairly analogous to dealing with various legal fictions, they may rub some people the wrong way on some fundamental level (maybe rightly so) but that doesn't mean they can't be useful or even necessary.
  #49  
Old Yesterday, 08:33 AM
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You know what? Before I get further into...all of this, let's start with a bit of clarification. What did you mean in post #35 when you stated the following: "Let me be clear. I think not just the law, but the policy behind the law, is pretty darn clear."?
Is that a difficult sentence for you to parse?

I meant: "“neither the doctrine of separation of powers, nor the need for confidentiality of high‐level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” Trump v. Vance

I meant: "“[The President] concedes that he, like every other citizen, is under a legal duty to produce relevant, non‐privileged evidence when called upon to do so.” Nixon v. Sirica, 487 F.2d 700, 713 (D.C. Cir. 1973)

I meant: "The historical record indicates that the Judiciary has long entertained subpoena-enforcement actions concerning
compelled congressional process." Committee v. McGahn

And, as far as the policy goes, allowing the President to have total immunity from complying with process (as Trump has claimed), would set the Presidency above the other co-equal branches and make legislative and judicial subpoenas useless against the President. There is no precedent for that kind of ruling, and thankfully so.
  #50  
Old Today, 01:49 AM
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Is that a difficult sentence for you to parse?

I meant: "“neither the doctrine of separation of powers, nor the need for confidentiality of high‐level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” Trump v. Vance

I meant: "“[The President] concedes that he, like every other citizen, is under a legal duty to produce relevant, non‐privileged evidence when called upon to do so.” Nixon v. Sirica, 487 F.2d 700, 713 (D.C. Cir. 1973)

I meant: "The historical record indicates that the Judiciary has long entertained subpoena-enforcement actions concerning
compelled congressional process." Committee v. McGahn

And, as far as the policy goes, allowing the President to have total immunity from complying with process (as Trump has claimed), would set the Presidency above the other co-equal branches and make legislative and judicial subpoenas useless against the President. There is no precedent for that kind of ruling, and thankfully so.
Again, really? This is getting tiresome. Let's start with the quote I asked you to clarify:

Hamlet "Let me be clear. I think not just the law, but the policy behind the law, is pretty darn clear."
(Act 1, Post 35)

How eloquent.

Notice the phrase "the law" you chose to use in that sentence. Does that seem an especially specific descriptor to you? Especially in the context of an actual legal analysis? Once again, as I noted earlier, the topic of the thread was a general one on whether Congress can compel the Executive to comply with its subpoenas. And that's as far as the discussion had really gotten to that point, without any reference to any particular case or hypothetical.

Now the phrase "the law" can certainly mean a lot of things, everything from a specific statute to an entire body of law. But in a general discussion about an entire area of law, the phrase "the law" is typically synonymous with the relative Jurisprudence I.e. the overall body of law on the topic. So how the hell exactly was I supposed to glean from your vague use here of "the law" that you were referring to "the Executive having no absolute immunity from subpoenas"? We can even go back and look at previous posts for any context.

In post #31 you asked UltraVires the following:

Can the President simply refuse to comply with Congressional subpoenas? Can a Court no longer require the President to turn over evidence (remember the 8-0 ruling in US v. Nixon?)

Neither of these questions is at all even remotely the same question as "Does the President enjoy an absolute immunity or privilege against all Congressional subpoenas?" Of course they don't. Which is exactly why I've never claimed any different. And sure, that was one of the issues (and holdings) in Nixon but it wasn't the only one or the only potentially relevant one to the thread topic was it? So, just like your question to me, how the hell is someone supposed to divine you're referring specifically to the holding that the President has no absolute immunity/privilege to Congress's subpoena power when you simply mention the case name without further comment save the 8-0 vote?

The simple answer to the first question is: Yes, of course the President can simply refuse to comply with Congressional Subpoenas. That is the literal answer and at that point it is up to Congress to ask the Courts to enforce the subpoenas if it wishes. And once it is before the Court the President could literally defy its ruling as well, as mentioned by UltraVires . But from a less extreme and legal standpoint the President could also win the case on numerous grounds and that would certainly afford the President the choice to not comply. And since one of those grounds could be that the Court could find the issue as nonjusticiable and a Political Question that provides at least a partial answer to your second question. In such a instance, yes, a Court cannot compel the President to turn over evidence because it lacks jurisdiction.

So let's recap: the legal answer to both of your above questions and the overall thread topic of whether Congress can compel a President to comply with its subpoenas is - maybe, it depends. And you could have responded civilly to a simple request for clarification but instead you chose to continue to be condescending and combative. Which is bad enough in and of itself, but so much more so when the real issue is apparently repeated communication and comprehension failures on your part.
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