Image for post
Image for post
Appearing at an annual gathering of Conservatives this weekend

Another Thing Trump Is Really Good At: Loopholes

Also: arguing one thing in public, and the exact opposite in court…

Today, we’ll look at two prime recent examples of some of that:

First, a federal appeals court ruling that Congress cannot sue to force former chief White House lawyer Don McGahn to testify. A lower court judge originally ruled he had to.

You may remember that during impeachment proceedings, the President, as well as many Republicans, publicly arguing that if Democrats in the House had a problem with Trump blocking everybody close to the President — including McGahn — from testifying, they should take it up in federal court.

Yet in federal court Trump’s folks argued that the House has no right to take it up in federal court.

And the court agreed.

The 3-judge panel ruling 2–1 that the House didn’t have standing to sue to force the testimony. Why not? Because in the opinion of 2 of the 3 judges involved, the Executive (President) And Legislative (Congress) branches of government need to work such matters out between themselves and not involve the Judicial (Courts). And that federal courts here have no power to act as mediator. Judge Thomas Griffith writing in the decision:

[W]e lack authority to resolve disputes between the Legislative and Executive Branches until their actions harm an entity ‘beyond the [Federal] Government’….Without such a harm, any dispute remains an intramural disagreement about the ‘operations of government’ that we lack power to resolve.

Problem is, by arguing the court cannot resolve the dispute, the court is actually resolving it, in Trump’s favor, whether it wants to or not.

Griffith goes on to say:

“The Committee claims an absolute right to McGahn’s testimony, and the President claims an absolute right to refuse it. We cannot decide this case without declaring the actions of one or the other unconstitutional.”

But again, by not deciding, they are in effect deciding in Trump’s favor.

Judge Griffith goes out of his way in several places to emphasize the ruling has nothing to do with Trump’s conduct, like here:

The Committee claims that the Executive Branch’s assertion of a constitutional privilege is obstructing the Committee’s investigation. That obstruction may seriously and even unlawfully hinder the Committee’s efforts to probe presidential wrongdoing, but it is not a ‘judicially cognizable’ injury.”

He’s trying to explain what he views as the Judicial branch’s proper role under Article III of the Constitution. (But Article III, while it establishes and defines the role of the judicial branch, is very short on specifics compared to the Constitution’s outlines of the powers of the executive and legislative branches.)

And Judge Griffith insists that the judicial branch not taking up this dispute does not leave Congress high and dry:

The absence of a judicial remedy doesn’t render Congress powerless. Instead, the Constitution gives Congress a series of political tools to bring the Executive Branch to heel….Congress (or one of its chambers) may hold officers in contempt, withhold appropriations, refuse to confirm the President’s nominees…delay or derail the President’s legislative agenda, or impeach recalcitrant officers….And Congress can wield these political weapons without dragging judges into the fray.”

But how practical is any of that?

Let’s say the House took up the first of the Judge’s suggestions. And simply arrested everyone from the White House whom Trump refused to allow to testify, and charged them with contempt of Congress. And then when the Whit House tried to sue to stop it said ‘sorry, this is not a matter for the courts, it’s for us to work out between ourselves.’ Would we be seeing the same inability to act by the courts? Really?

And how about the part about withholding appropriations? Even that doesn’t work anymore because of yet more loopholes Trump is finding: for example, reallocating already allocated military funds to build his wall.

Now before you go assuming Judge Griffith and Judge Karen Henderson who joined him are Trump appointees, they’re not. They were appointed by George Bush Junior and Senior respectively. The dissenting judge on the panel, Judith Rogers, was appointed by President Clinton.

And in her dissent, Rogers writes:

The Supreme Court and this court have long recognized that the ability to acquire information is indispensable to Congress’s performance of its constitutional roles. The courts have consistently held that Congress has a constitutional right in the ability to acquire information, including by compulsory process.”

And Rogers challenges the assertion that Congress has many other options available to it that don’t involve the courts:

Practically speaking, based on the current record, Congress will obtain McGahn’s appearance by proceeding in court, or not at all.”

And she correctly, we believe, believes the decision is “encouraging Presidential stonewalling”.

Her views make more sense to us. Because the upshot appears to be leaving the President’s power largely unfettered, and the powers granted to Congress by the Constitution literally ignored.

This isn’t over. It’s possible or even likely the entire U.S. Court of Appeals for Washington, D.C., (not just 3 judges) will take up the decision, and it very well may end up in the Supreme Court.

At the same time, we’ve seen many people Tweeting over the weekend about changing laws and closing loopholes based on all that Trump’s bringing to light with his nearly unprecedented actions. And maybe there’s even some value in Trump showing where these loopholes exist. Except, no. If you read the judges’ ruling in this case, regardless of the side they’re on, they all seem exasperated they’re being dragged into this kind of thing, since it’s something they seldom see, and hasn’t happened but once or twice in hundreds of years of U.S. history, and certainly not on the scale as Trump’s doing it.

So you know, this country’s done just fine with those very same loopholes in place for a while. Because people behaved with decency. Yeah there were some bitter fights, but Congress usually eventually got witnesses or documents they wanted from prior administrations. Because oversight, according to the Constitution, is their job.

Not the President successfully blocking and then punishing Congress for doing its job, because if they investigate him, they must “hate America”.

So we’re not sure Congress really does need to spend time in the future writing laws to prevent people from doing things you would not expect normal people to do. You just need to get decent people back into office.

— -

Example #2: Trump appoints Rep. John Ratcliffe (R) TX to Director of National Intelligence. That’ll have to be approved by the Senate.

Trump already appointed Ratcliffe to the position once before. But he withdrew his name after the “lamestream media” as he called it, pointed out that he’d repeatedly padded his resume.

But there may be another loophole at work here, as University of Texas Law Professor Steve Vladeck points out: all the people Trump has in an “acting” position, need to eventually be approved by the Senate. (Except for White House Chief of Staff Mick Mulvaney, who Trump could just turn into the real thing tomorrow, but for some reason doesn’t). But some of Trump’s appointees are too lunatic even for the likes of staunch supporters of the President such as Senate Majority Leader Mitch McConnell.

So a second impact (and perhaps reason) for naming Ratcliffe now, is that his nomination, whether it’s ultimately successful or not, clears the path for Richard Grenell, whom Trump just named to the post a couple of weeks ago, to continue for almost another year without having to get the Senate’s approval for it himself.

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store