Monday, June 19, 2017

Is Trump Turning His Back on America — Or Vice Versa — As Reality Sets In

The Sooner the Better (In my opinion)
(Can't face the music, must not like the tune)

If I do resign, this is how I'll tell you
(Not from some “Fake News” or committee “Witch Hunt” leak)

From re: Presidential Executive Privilege:

Historical Background: In United States v. Nixon, the most high-profile executive privilege case ever decided by the Supreme Court, Chief Justice Warren Burger (writing for a unanimous Court) concluded that there is a “presumptive privilege for Presidential communications” that is “fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.”

Note: The Nixon ruling was extremely clear that not all subpoenas and inquiries can be quashed due to executive privilege. While separation of powers concerns give the president a presumptive right to privacy in his communications, this presumption can be overridden in certain cases.

With that in mind, Burger wrote: “This presumptive privilege must be considered in light of our historic commitment to the rule of law [and, while presidential secrecy has a constitutional basis in the separation of powers] that right to the production of all evidence at a criminal trial similarly has constitutional dimensions, [thus or so the court] “must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the President's responsibilities against the inroads of such a privilege on the fair administration of criminal justice,” Burger further wrote.

The Court judged that “the fair administration of criminal justice” outweighed the president’s right to confidentiality in communications, at least in the case of the criminal inquiry into Richard Nixon.

How does this apply to the Trump-Russia investigation? 

First and paramount, “presidential communications privilege cannot be invoked by Sessions, as attorney general,” Yale Law School's Asha Rangappa says: “Sessions cannot 'preemptively invoke that privilege on the president's behalf.

The question of whether Trump himself can obstruct subpoenas or decline to answer Congress's questions by invoking executive privilege — or if, by invoking executive privilege, he can bar people like Sessions from testifying about their conversations with him — is more complicated. He, like all presidents, enjoys a presumption of confidentiality.

However, the Washington Post’s revelation that Trump himself is under investigation for obstruction of justice suggests a very similar situation to the one Nixon found himself in.

If Trump were to fail to obey subpoenas from special counsel Robert Mueller, then it’s likely that courts would obey the Nixon precedent and require him to comply, on the grounds that rule has preference over his executive privilege.

The possibility of Trump not complying with a congressional investigation raises further questions. Failure to comply with congressional subpoenas further implicates “Congress’s constitutional power of inquiry through investigatory bodies” and courts could decide that Congress’s constitutional obligation overrides Trump’s presumptive right to confidentiality.

In fact, one district court has already ruled that Congress’s investigatory powers trump executive privilege in cases like this. Cite: Committee on the Judiciary v. Miers, wherein the George W. Bush administration was using executive privilege to try to block a subpoena by House Judiciary Committee Chair John Conyers (D-MI) for testimony by former White House counsel Harriet Miers and Chief of Staff Joshua Bolten

Judge John D. Bates of the U.S. District Court for DC (himself a Bush appointee) “rejected the Executive claim of absolute immunity for senior presidential aides.” 

He ordered the White House to comply with the subpoena, saying in the ruling in part: “Congress’s power of inquiry is as broad as its power to legislate and lies at the very heart of Congress constitutional role. Presidential autonomy, such as it is, cannot mean that the Executive’s actions are totally insulated from scrutiny by Congress. That would eviscerate the Congress’s oversight functions.”

Closely related topics from here, here, and more importantly here So, will Trump resign or simply “ride it out” and take his chances? A critical question to say he least.

Thanks for stopping by and come again.

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