WASHINGTON—Leading Democrats used a meeting of their party’s leadership team last night to push Speaker Nancy Pelosi to allow the House Judiciary Committee to begin an impeachment inquiry into President Donald Trump. One of their main arguments, according to various media reports, was that it will allow them to obtain documents and testimony the president has thus far been able to block.
Up until last week, Pelosi had been arguing against impeachment. Rep. David Cicilline, D-R.I., a member of the Judiciary Committee, went on national television last night to declare, “There’s no doubt that opening the inquiry strengthens the hand of Congress in forcing compliance with subpoenas, whether it’s for documents or individuals.”
The decision by former White House Counsel Don McGahn to flip his finger at Congress and ignore a subpoena to testify today has added fuel to a fire that now involves several members of the Judiciary Committee calling for impeachment.
Rep. Ted Deutsch, D-Fla., said last night, “If the answer is no, you can’t talk to anyone, you can’t have anything, we’re simply not going to cooperate, then at that point the only avenue left is the constitutional means to enforce separation of powers, which is a serious discussion of impeachment.”
Meanwhile, Judge Amit Mehta of the D.C. District Court ruled yesterday against Trump’s attempt to block a Congressional subpoena for his financial records. “It is simply not fathomable that a Constitution that grants Congress the power to remove a president for reasons including criminal behavior would deny Congress the power to investigate him for unlawful conduct—past or present—even without formally opening an impeachment inquiry,” the judge wrote in his decision.
The records at issue would let the panel determine whether, when, and to whom—including regulators—Trump lied about his financial assets and debts and that of his conglomerate. Trump’s former lawyer/fixer Michael Cohen earlier told the panel Trump lied, underestimating his figures for official documents and overestimating them when making sales pitches to banks and investors.
Mehta’s ruling was the first in what will be a raft of such decisions on Trump resistance to congressional oversight and subpoenas.
That bad news for Trump came on top of the release yesterday of documents that showed Jay Sekulow, one of the president’s current lawyers, had instructed Trump’s former and now jailed attorney Cohen to lie to Congress about the building of a Trump Tower in Moscow.
The subpoena battle raging in Washington affects much more than just the president’s legal dealings, however, and the healthcare issue provides a good example.
Upset by Trump’s Justice Department’s decision to try to use the federal courts to destroy the Affordable Care Act, the Democratic chairs of five House committees are threatening to issue subpoenas to both Department of Justice and the White House counsel to see whether Trump ordered the move.
The letters are the lawmakers’ second attempt to get such records, they told White House counsel Pat Cipollone and Attorney General William Barr. Neither agency sent any documents by the original April 22 deadline.
If their May 13 follow-up letter produces no substantive response, too, by May 24, “we will have no choice but to consider alternative means of compliance,” the chairmen warned. That’s legalese for “issuing a subpoena.”
House Education and Labor Committee Chairman Bobby Scott, D-Va., Oversight Committee Chairman Elijah Cummings, D-Md., Ways and Means Chairman Richard Neal, D-Mass., Energy and Commerce Chairman Frank Pallone, D-N.J., and Judiciary Committee Chairman Jerrold Nadler, D-N.Y., sent the identical letters to Cipollone and Barr.
The five committees have good reason to subpoena the ACA communication records. The Ways and Means, Energy and Commerce, and Education and Labor Committees basically wrote the ACA in 2009-10. Oversight is the lead House investigatory committee. Judiciary would decide whether to impeach Trump.
The chairmen said their oversight responsibilities include whether the White House ordered the DOJ to file its May 13 brief demanding its judges declare the entire ACA unconstitutional in the 5th U.S. Circuit Court of Appeals in New Orleans, following the prior lead of a GOP-named federal judge in rural red-state Texas.
“This action could deprive millions of Americans of health insurance coverage, including 133 million people with pre-existing conditions. We requested that you produce eight categories of documents relating to the White House’s involvement in this sudden and extremely troubling reversal,” the lawmakers’ ACA letters to Barr and Cipollone said.
“The White House failed to respond in any way to this request. Instead, on May 1, 2019, the Department of Justice filed a 50-page brief…elaborating on the Trump administration’s new—and flawed—legal position.”
The lawmakers pointed out that in all past administrations, when DOJ found one section of a law—which it’s supposed to defend—unconstitutional, “the rest of the law should not be struck down unless it is ‘evident Congress would not have enacted those provisions which are within its power, independently of those which are not.’”
But DOJ argued in court that when Congress used the GOP-Trump tax cut for companies and the rich to revoke the ACA’s “individual mandate”—the $700 tax individuals were supposed to pay if they didn’t get health insurance through employers or the ACA’s exchanges—that made the whole law unconstitutional.
“The faulty legal reasoning” in that brief to the appeals court judges “underscores the concerns we raised…that politically motivated forces inside the White House and the Office of Management and Budget may have brought undue pressure on the Department of Justice to reverse its prior legal conclusions and disregard its own legal reasoning in violation of the Constitution’s solemn charge to ‘take care that the laws are faithfully executed.’”
The “take care” language is straight from the president’s oath of office.
“Given the grave consequences that would result if the Trump administration’s legal position were to prevail, it is Congress’s responsibility as an independent and co-equal branch of government to understand how this decision was made,” the five committee chairmen said. They also want to interview Trump’s acting OMB Director, Russ Vought, behind closed doors.
If the president and his administration truly stand by their decision to seek to eliminate health insurance coverage for millions of Americans, it is unclear why the White House would cover up its role in this unprecedented and disastrous reversal,” they said.
But two University of Southern California law professors—one of them a former congressional committee chief of staff—suggested another possible solution to Trump minions’ defiance of congressional subpoenas: Lock them up.
The two wrote in a Washington Post analysis that after the Teapot Dome scandal of the 1920s broke, the Senate dispatched its top enforcement officer, the Sergeant at Arms, to Cincinnati to arrest and bring back to D.C. a witness to testify. The resisting witness was Mally Daugherty, brother of President Harding’s corrupt campaign-manager-turned-Attorney General Harry Daugherty.
The Sergeant at Arms did so, and, though Mally freed himself legally, the Supreme Court later upheld the arrest. That 1927 ruling still stands, the two professors wrote.
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