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.
You may challenge subpoenas on a matter of law through your attorney anywhere in the country.
SCOTUS did not “delay” anything. The justice system is slow for everyone.
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.
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.
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).
"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."
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?
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.
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.
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?)
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.
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.
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?
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.
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 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.
Do you have an supported opinion on this “unique legal issue”? Or are you, like UltraVires, going to dodge my questions?
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
