Tuesday, May 5, 2020

Warning: Trump administration's defiance of Congressional oversight at every turn is a sign of a president who intends to become a dictator

Robert Mueller (CNN)

Scary events have filled the first four-plus months of 2020, with perhaps the two scariest coming in the last four days -- and only one of them involving the coronavirus, in an indirect way. The two recent hair-raisers can be summed up in the following headlines from CNN

(1) Trump administration gets 10-day delay to turn over Mueller docs to House;

(2) White House blocks Fauci from testifying next week

Both headlines reflect the Trump administration's determination to interfere with Congress' duty to investigate and conduct oversight on the executive branch. A prominent academician and former White House cabinet secretary says such moves represent Trump's desire to establish a dictatorship, answering to no one. That should keep all Americans up at night. Let's take a brief look at the stories behind the headlines noted above:

Trump administration gets 10-day delay to turn over Mueller docs to House

The Trump administration will have another 10 days to rush to the Supreme Court for help before it'll have to turn over Mueller grand jury secrets to the House of Representatives, a federal appeals court said on Friday.

In a brief order, the US Court of Appeals for the District of Columbia, said it would give the Justice Department time to appeal to the Supreme Court. The court had previously said documents and details from special counsel Robert Mueller's investigation would have to be turned over Friday. Now, the deadline is May 11, the day before the Supreme Court hears another high-profile case about House Democrats' investigations into President Donald Trump.

The Justice Department has said it would ask the Supreme Court to intervene in the Mueller grand jury case. If that happens and the Supreme Court wants to hear the case, it could be months before it's resolved. Last month, the appeals court ruled, 2-1, that the Democratic-controlled House could see the grand jury material from the Mueller probe and redacted portions of the Mueller report. The majority agreed that the House Judiciary Committee has a "compelling need" to view the secretive details prosecutors had collected from witnesses and about Trump.

The House says it wants the still-confidential Mueller findings and grand jury material so it can investigate the President for potential obstruction of justice during the Russia investigation.

Democrats have especially raised questions about what campaign witnesses told Mueller versus what Trump said to Mueller in written answers -- saying he didn't recall conversations about attempts to reach WikiLeaks in 2016.

What does this tell us? (1) Trump will fight to his last legal option to keep the full Mueller Report under wraps; (2) The administration considers grand-jury secrecy rules to be more important than Congress' duty to conduct oversight -- and the public's right to know; (3) Trump went through an impeachment proceeding, with Congress never having access to grand-jury materials and the unredacted Mueller Report, suggesting that whole process was a sham.

White House blocks Fauci from testifying next week

The White House is blocking Dr. Anthony Fauci, a key member of the administration's coronavirus task force, from testifying before the Democratic-led House (on 5/6/20), according to a spokesman from a key House committee.

"The Appropriations Committee sought Dr. Anthony Fauci as a witness at next week's Labor-HHS-Education Subcommittee hearing on COVID-19 response. We have been informed by an administration official that the White House has blocked Dr. Fauci from testifying," House Appropriations Committee spokesman Evan Hollander said in a statement Friday.

White House deputy press secretary Judd Deere confirmed the decision. "While the Trump Administration continues its whole-of-government response to COVID-19, including safely opening up America again and expediting vaccine development, it is counter-productive to have the very individuals involved in those efforts appearing at Congressional hearings," Deere said in a statement. "We are committed to working with Congress to offer testimony at the appropriate time."

Press secretary Kayleigh McEnany followed up on Deere's comments, explaining in an interview Saturday the reasoning behind the White House's decision.

"When we pressed for details as to why Dr. Fauci in particular was the right person for the testimony and this hearing, those details were never provided," McEnany said in a Fox News interview.

In a gaggle with reporters after her interview on Fox, McEnany said the administration wanted to make sure that the "subject matter of the hearing matched the individual they're requesting" and in this case, "there was never any clarity given forth as to what the actual subject matter of this hearing would be."

Though when asked by CNN's Jeremy Diamond if Fauci or other officials will be allowed to testify in front of other House committees in the future, McEnany said "absolutely."

It appears Fauci is expected to testify in front of a committee of the Republican-led Senate committee during May. He will testify before the Senate Health, Education, Labor and Pensions Committee on May 12, per an aide to the panel's chairman, Sen. Lamar Alexander, a Tennessee Republican.

What do we learn from this? (1) In TrumpWorld, the White House gets to choose what witnesses testify before Congress -- and when they appear; (2) The administration determines if oversight testimony is "counter-productive,' regardless of what Congress thinks; (3) Witnesses might be allowed to appear before a Republican-controlled committee, but not one controlled by Democrats -- adding a heavy-handed layer of politicization to the process.

Robert Reich, former U.S. labor secretary and professor of public policy at the University of California at Berkeley, saw this kind of thing coming last spring when he wrote an op-ed for The Guardian titled "In fighting all oversight, Trump has made his most dictatorial move: The president is treating Congress with contempt. This cannot stand – and Congress must fight back."Writes Reich:

“We’re fighting all the subpoenas,” says the person who is supposed to be chief executive of the United States government.

In other words, there is to be no congressional oversight of this administration: no questioning officials who played a role in putting a citizenship question on the 2020 census. No questioning a former White House counsel about the Mueller report.

No questioning a Trump adviser about immigration policy. No questioning a former White House security director about issuances of security clearances.

No presidential tax returns to the ways and means committee, even though a 1920s law specifically authorizes the committee to get them.

Such a blanket edict fits a dictator of a banana republic, not the president of a constitutional republic founded on separation of powers.

If Congress cannot question the people who are making policy, or obtain critical documents, Congress cannot function as a coequal branch of government.

What does this mean for Congress and the American public it serves? The answer is not pretty:

If Congress cannot get information about the executive branch, there is no longer any separation of powers, as sanctified in the US constitution.The man whose aides cooperated, shall we say, with Russia – the man who still refuses to do anything at all about Russia’s continued interference in the American political system – refuses to cooperate with a branch of the United States government that the Constitution requires him to cooperate with in order that the government function.

There is only one power – the power of the president to rule as he wishes.

Which is what Donald Trump has sought all along.

The only relevant question is how to stop this dictatorial move. And let’s be clear: this is a dictatorial move.

Presidents before Trump occasionally have argued that complying with a particular subpoena for a particular person or document would infringe upon confidential deliberations within the executive branch. But no president before Trump has used “executive privilege” as a blanket refusal to cooperate.

Recent events show Congress has played softball with Trump, allowing themselves to be steamrolled. Robert Reich, writing one year ago, said Congress had better grow a spine:

How should Congress respond to this dictatorial move?

Trump is treating Congress with contempt – just as he has treated other democratic institutions that have sought to block him.

Congress should invoke its inherent power under the constitution to hold any official who refuses a congressional subpoena in contempt. This would include departmental officials who refuse to appear, as well as Trump aides. (Let’s hold off on the question of whether Congress can literally hold Trump in contempt, which could become a true constitutional crisis.)

“Contempt” of Congress is an old idea based on the inherent power of Congress to get the information it needs to carry out its constitutional duties. Congress cannot function without this power.

How to enforce it? Under its inherent power, the House can order its own sergeant-at-arms to arrest the offender, subject him to a trial before the full House, and, if judged to be in contempt, jail that person until he appears before the House and brings whatever documentation the House has subpoenaed.

When President Richard Nixon tried to stop key aides from testifying in the Senate Watergate hearings, in 1973, Senator Sam Ervin, chairman of the Watergate select committee, threatened to jail anyone who refused to appear.

Congress hasn’t actually carried through on the threat since 1935 – but it could.

Would America really be subject to the spectacle of the sergeant-at-arms of the House arresting a Trump official, and possibly placing him in jail?

Probably not. Before that ever occurred, the Trump administration would take the matter to the supreme court on an expedited basis.

Sadly, there seems no other way to get Trump to move. Putting the onus on the Trump administration to get the issue to the court as soon as possible is the only way to force Trump into action, and not simply seek to run out the clock before the next election.

What would the court decide? With two Trump appointees now filling nine of the seats, it’s hardly a certainty.

But in a case that grew out of the Teapot Dome scandal in 1927, the court held that the investigative power of Congress is at its peak when lawmakers look into fraud or maladministration in another government department.

Decades later, when Richard Nixon tried to block the release of incriminating recordings of his discussions with aides, the supreme court decided that a claim of executive privilege did not protect information pertinent to the investigation of potential crimes.

Trump’s contempt for the inherent power of Congress cannot stand. It is the most dictatorial move he has initiated since becoming president.

Congress has a constitutional duty to respond forcefully, using its own inherent power of contempt.

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