May 8, 2019

Trump vs. Congress

Editor's note: We couldn’t be more proud of one of our teammates, Isaac Rose-Berman, who penned his first op-ed this week in USA Today: “How college students can bridge American divides: 'Study abroad' in Alabama or New York.” Please give it a read, and share far and wide!

On Monday, Treasury Secretary Steven Mnuchin refused to provide a copy of President Trump’s tax returns to the House Ways and Means Committee, claiming “that the panel’s request ‘lacks a legitimate legislative purpose’ as Supreme Court precedent requires.” AP News

Two weeks ago, Trump stated that “his White House will be ‘fighting all the subpoenas’ issued by House Democrats in their investigations into his administration.” AP News

On Sunday, Trump tweeted, “Bob Mueller should not testify. No redos for the Dems!” Twitter

See past issues

From the Left

The left is alarmed by Trump’s disregard for Congress’s authority, and argues Mueller should testify.

“To be sure, presidents and Congress joust often over requests for senior aide testimony or White House documents… The executive and the legislature have, at least until now, fought these battles within a shared, if tense, understanding of the constitutional precedents: Congress has extensive authority to probe an administration’s activities and performance, while presidents retain appropriate latitude to solicit, and keep private, advice from senior staff… Under the Constitution, Congress is a co-equal branch of the government, a fact Trump is unable to understand or unwilling to accept. The courts may yet have to educate him on this point. If he continues to push the confrontation after that, we will be in truly dangerous territory.”
Bob Bauer, Washington Post

Regarding Trump’s tax returns, “the court has repeatedly affirmed the validity of congressional actions taken within the ‘sphere of legitimate legislative activity’ — and it has recognized that this sphere is far-reaching, encompassing ‘inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes.’ In examining Mr. Trump’s tax returns, Congress could determine that legislation forcing disclosure of a candidate’s tax returns is necessary to guard against future presidential corruption and conflicts of interests. Or it might not. As the Supreme Court put it in an instructive 1975 opinion largely upholding congressional prerogatives, ‘To be a valid legislative inquiry there need be no predictable end result.’”
Editorial Board, New York Times

“Lance Cole, a law professor at Penn State University and an expert on congressional investigations, said that because courts have ruled in the past that Congress can’t use its power to peer into citizens’ private lives without some legitimate justification, a judge might be sympathetic to Trump’s argument, particularly if Democrats are asking for lots of old financial documents. However, in the 1990s, Congress probed the details of a 15-year-old real estate deal involving Bill and Hillary Clinton as part of the Whitewater investigation, dredging up personal details from long before Clinton was president. That may bolster the argument that a president can’t really be compared with an ordinary citizen. ‘You can debate the merits of the investigation, but it’s hard for Trump to say that Congress has never done this before.’”
Amelia Thomson-DeVeaux, FiveThirtyEight

Trump is the most financially conflicted president of the modern era. Unlike recent predecessors in the Oval Office, he has chosen not to voluntarily release his tax returns. That limits the public’s full understanding of the financial or business pressures that might inform his policymaking, an understanding that is basic to ethical and transparent governing. It’s the kind of situation that calls for aggressive Congressional monitoring. But in the era of Mnuchin, Barr and Trump, this view is unlikely to prevail unless legislators take the battle just as seriously as the White House does.”
Timothy L. O'Brien, Bloomberg

Regarding Mueller, “the failure to draw any conclusion on whether the president obstructed justice was a massive dereliction of the special counsel’s duty… Congress should now interview Mueller and his senior staff. Each of the 10 instances of possible obstruction should be reviewed and the following question asked and answered: Allowing for the differences between the president and a private citizen, had analogous conduct been engaged in by the citizen, would a grand jury indictment have been sought for obstruction of justice? This would provide, albeit belatedly and bootlessly, a knowledgeable and neutral judgment on the president’s conduct during the Russia investigation.”
David E. Kendall, Washington Post

“Trump’s defenders will say this evidence is all circumstantial. But circumstantial evidence is not weak evidence: it’s simply evidence based on the circumstances in which an act of wrongdoing is committed — such as the license plate of a car that speeds away from a bank just after that bank is robbed. Criminals are convicted on such evidence all the time. They will also say that there’s no explicit quid pro quo proposal here. But… ‘even when a corrupt deal is struck implicitly, the government can still prosecute extortion on a quid pro quo basis. Circumstantial evidence can be enough to prove a criminal exchange.’…

“In the absence of an explicit quid pro quo over restarting aid, the context and circumstances are what will become the focus of the investigation. There is enough here to support impeachment. Whether it is also enough to convince Republicans and lead to removal is another matter.”
Noah Feldman, Bloomberg

Rep. Jim Jordan (R-OH) “insisted the president couldn’t possibly have done anything wrong because, in the end, Ukraine got its money without committing to any investigations. This point of view has radical implications for America’s system of justice and overcrowded prisons, if Mr. Jordan in fact truly believes that all inmates convicted of attempted crimes are innocent of wrongdoing… Perhaps the most telling remark was offered by a Republican staff lawyer, Stephen Castor, who suggested that while the president’s behavior may have been highly irregular, ‘it’s not as outlandish as it could be.’ Here’s a tip: When ‘not as outlandish as itcould be’ is your strongest defense, it’s time to rethink your position.”
Editorial Board, New York Times

From the Right

The right defends Trump’s resistance to subpoenas, and argues that Mueller should not testify.

From the Right

The right defends Trump’s resistance to subpoenas, and argues that Mueller should not testify.

Disputes over congressional demands for documents and testimony are as old as the republic. Congresses demand; presidents resist. Generally, after a political tussle the two sides meet somewhere in the middle… [But] never before have so many congressional committees issued so many subpoenas demanding documents and testimony from so many executive-branch officials, with so little attempt at negotiation or accommodation…

“This process cannot take place if one side assumes that it has unilateral authority to demand whatever it wishes and that any delay or resistance from the other branch is categorically illegitimate. Trump should abandon his attempt to defy ‘all subpoenas,’ but the House should recognize that the executive is an equal branch of government with constitutional privileges of its own. For a president to assert the rights of his office, as almost every president has done, is neither blameworthy nor impeachable.
Michael McConnell, Washington Post

“Oversight of the executive branch is an important Congressional power, but the Supreme Court has said it should be related to Congress’s legislative function or constitutional duty. It can’t merely be a trawling exercise to see what nasty details they can find to score political points and discredit a President before the 2020 election… If Democrats really believe Mr. Trump is a threat to the Constitution, they should file articles of impeachment and have every Member vote on them.”
Editorial Board, Wall Street Journal

What does [House Ways and Means Committee Chairman Richard] Neal think he’s going to find in [Trump’s tax returns] anyway? That Trump, a well known BSer, isn’t as rich as he says he is? (By the way, tax returns don't necessarily give any indication of wealth.) That Trump pays as little in taxes as possible, something everyone does and something Trump has proudly admitted a million times? Seizing any individual’s private, legally filed tax returns so that you can leak them to the public — which is exactly what Neal would do — is nothing short of abuse of power.”
Eddie Scarry, Washington Examiner

Regarding Mueller, “House Democrats will likely find Mueller’s testimony as disappointing as his report. Mueller is an institutionalist, someone who respects the norms of the Department of Justice no matter how much he might (or might not) resent Trump and Barr. It’s very unlikely that Mueller would provide any more information to Congress than what he included in his report; he likely felt that he reached the limits of prosecutorial transparency with that report already… Mueller’s testimony will take place whether Trump likes it or not. Better to get it over with now, though, rather than drag this one out into 2020.”
Ed Morrissey, Hot Air

“It’s not as though we don’t already have the special counsel’s version of events. He mustered enormous investigate resources and took two years to write a 400-page report that is available to the public and presumably carefully written (although not necessarily carefully thought through). That should be enough for Mueller to stand on, and enough for Congress to make a decision to impeach or not impeach, or otherwise dispose of the matter as it sees fit...

“[Congress] doesn’t want facts from him. They are already in the report. It wants opinions and sound bites, especially any embarrassing to the president. Congress wants him to spend a couple of high-profile hours further ‘not exonerating’ the president. If Mueller had a proper understanding of his role, he would decline the congressional invitation.”
Rich Lowry, National Review

“If a dozen drones or missiles can do the kind of damage to the world economy as did those fired on Saturday—shutting down about 6 percent of world oil production—imagine what a U.S.-Iran-Saudi war would do to the world economy. In recent decades, the U.S. has sold the Saudis hundreds of billions of dollars of military equipment. Did our weapons sales carry a guarantee that we will also come and fight alongside the kingdom if it gets into a war with its neighbors?… the nation does not want another war. How we avoid it, however, is becoming difficult to see. John Bolton may be gone from the West Wing, but his soul is marching on.”
Patrick Buchanan, The American Conservative

Others note, “I’d hate to be a Democratic member of Congress trying to convince Joe Sixpack that this is a whole new ballgame. The transcript shows Trump being Trump and Ukrainian president Volodymyr Zelensky trying to ingratiate himself with the big dog by, for instance, mentioning that he stays at Trump hotels. Trump’s conversation is typically scattershot, wandering all over the field, leaving a reasonable listener puzzled about what the takeaways are supposed to be…

“I think Joe Sixpack’s response is going to be a hearty shrug. After all that has emerged about Trump so far, his approval rating is closely tracking Obama’s approval at the same point in his presidency. To get Mr. Sixpack’s attention you are going to have to do better than this.”
Kyle Smith, National Review

President Trump should be happy. As much as Warren is articulate, obviously intelligent, and energetically supported by Democrats, she would also be far easier to defeat than Joe Biden… Considering Trump's economy, the president is well placed to defeat Warren.”
Tom Rogan, Washington Examiner

A libertarian's take

“After adding in the ultra-millionaire’s tax and factoring in the other capital taxes Warren wants to levy — on financial transactions, on unrealized capital gains, on corporations — we’d be asking every billionaire to hand over more than two-thirds of their total wealth over a 10-year period. If the government actually managed to collect it, their fortunes would rapidly erode — and so would tax collections. The plan might be a good way to smash wealth, but it’s a terrible way to fund the nation’s health-care system…

“If Warren makes it to the White House, and tries to pass a plan, the Congressional Budget Office will eventually attach more reasonable numbers, with more defensible assumptions, sparking an even more spectacular political blowback than the one that greeted Friday’s announcement. Outside of the progressive Twitterati, there isn’t necessarily an enormous constituency for spending $20.5 trillion to herd every American into a national health insurance program; there would be even less support for spending what Warren’s plan would actually cost.”
Megan McArdle, Washington Post

On the bright side...

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