Law Executive Privilege case law favors Trump, not Nadler

Discussion in 'The War Room' started by glenwo2, Apr 30, 2019.

  1. glenwo2

    glenwo2 Adamantium Belt

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    Executive Privilege case law favors Trump, not Nadler

    After subpoenaing former White House counsel Don McGahn, the House Democrats became heady with visions of former White House counsel John Dean’s congressional testimony damning President Nixon dancing in their heads. But House Judiciary Chairman Jerry Nadler (D-N.Y.) should read some case law.

    The committee’s subpoena requires McGahn’s testimony on May 21, and documents and communications “referring or relating to” 36 specified incidents produced by May 7. All 36 describe executive privilege information, such as the “resignation or termination of Michael Flynn,” “reversing … Jeff Sessions’s recusal,” “Presidential pardons” and the “termination of James Comey.”

    Executive privilege is not specified in the Constitution, yet courts have consistently ruled that presidents have the right to withhold certain documents and information from the other branches. Two of those categories are the “deliberative process” — materials that reveal how government decisions are made — and the “confidentiality of presidential communications.”

    In an interview last month discussing the House subpoena for an unredacted Mueller report, Nadler claimed that President Trump cannot use “executive privilege” to hide behind anything in the report, citing the Supreme Court’s 9-0 decision in the Nixon tapes case. If Nadler reads that case, he will learn that the court ruled the White House had to produce evidence (tapes, not testimony) subpoenaed for a criminal trial, not for a congressional hearing. Even then, the court ruled that executive privilege had to be given deference, such that the tapes be provided in camera so the trial court would provide only material that was relevant.

    House Democrats have argued that because Attorney General William Barr publicly released a redacted Mueller report, the White House waived any claim of executive privilege to the full report and all its underlying documents. There is another case Nadler should read: The D.C. Circuit decided the seminal post-Nixon tapes case, which set a high standard for compelling evidence from the White House.

    The facts involve President Clinton’s agricultural secretary, Michael Espy, who was criminally charged by the independent counsel with taking things of value for favorable business decisions. The White House counsel had carried out its own investigation of Espy’s conduct and issued a report. The independent counsel, a la Nadler, subpoenaed all the underlying documents and notes of any meetings regarding the released Espy report. Clinton claimed executive privilege.

    The court refused the independent counsel’s request. Because the deliberative process exists to aid decision-making, it would not infer waiver for anything but the already released report (and one document given to defense counsel), ruling: “[R]elease of a document only waives … privileges for the document or information released.”

    Significantly, the D.C. Circuit also held that an entity subpoenaing executive privilege information also must demonstrate that the evidence “is important to the ongoing grand jury investigation and why [it] is not available from another source.” No grand jury here. Only a House committee hearing.

    If Nadler read relevant case law, he would understand that courts have set a standard for Congress to question witnesses. Over six decades ago, the Supreme Court overturned a misdemeanor conviction for a witness who refused to answer questions before the Committee on Un-American Activities about whether specific people he knew were communists. The witness was not a member of the executive branch — but the judicial standard applies to Nadler’s subpoena of McGahn.

    The court faulted the House for having vague authorizing language, which stated that the committee may investigate the “extent, character, and objects of un-American activities in the United States” and such activity “instigated from foreign countries … .” Thus, the court observed, the witness could not ascertain what questions were pertinent to the congressional investigation in order to determine which ones he could refuse to answer. “Protected freedoms should not be placed in danger in the absence of a clear determination by the House or Senate that a particular inquiry is justified by a specific legislative need.”

    If Nadler had read this case he might not have framed the subpoena’s purpose as “touching matters of inquiry committed to said committee … .” What is the legislative purpose?

    Nadler should know that courts view congressional investigations differently than criminal investigations. The D.C. Circuit refused to direct the White House to turn over to a Senate committee the same Nixon tapes that the Supreme Court had ordered be produced to the Watergate special prosecutor as evidence in the criminal case. After transcripts of the Nixon tapes had been released, the Senate Select Committee on Presidential Campaign Activities pursued the release of the entire tapes, sans redactions and in audio, claiming the committee needed to discern any conflicts in testimony and to hear inflections in tone. The court found a “clear difference between congressional legislative tasks and a grand jury … .” It held that the committee needed to show that the “subpoenaed evidence is demonstrably critical to the responsible fulfillment of the committee’s functions.” Reforming the electoral system did not pass the test.

    In an unprecedented decision, President Trump did not assert executive privilege for any document or testimony throughout the special counsel’s investigation. Thus, McGahn was allowed to be interviewed for more than 30 hours, exposing all the rants and frustrations of a man falsely accused of a crime he did not commit. One has to wonder what rantings President Clinton, who asserted executive privilege a record 14 times, expressed during the Monica Lewinsky investigation. Unlike Trump, Clinton did not release any of his lawyers to be interviewed.

    A member of Nadler’s Judiciary Committee, Rep. David Cicilline (D-R.I.), has claimed Congress has an “inherent right” to enforce subpoenas by whatever means at its disposal. That must mean going to court. If the Democrats read the case law, they will learn they will lose.




    >>> Interesting read. I wonder if this will get brought up in Court?
     
  2. OverCoronavirus Pressure

    OverCoronavirus Pressure Currently unavailable. Please check back later.

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    Whatever it takes to hide the full truth from becoming known.

    The truth was a casualty of this war on day one
     
  3. Trotsky

    Trotsky Undisputed Co-Winner of 2019 Best WR Poster

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    Victoria Toensing and Joe DiGenova lol. Literally the only two people Trump actually passed over for his legal team because there was too many conflicts of interest and blights of corruption (whereas, usually, the only problem with candidates is that there aren't enough).


    What, couldn't we find an article on the matter written by Trump himself?
     
  4. Happy Man

    Happy Man Double Yellow Card Double Yellow Card

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    No collusion, and only desires to obstruct (never done)

    Let it go already.
     
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  5. Joe

    Joe :l

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    Mcgahn has already testified and isnt even a government worker. ridiculous.
     
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  6. Caudillo

    Caudillo Banned Banned

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    No. If you dont think elections are rigged. Might as well keep them going on about it and not doing anything else. Assures Trump reelection. Encourage the worst of them and the most radical of their candidates.
     
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  7. glenwo2

    glenwo2 Adamantium Belt

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    <puh-lease75>
     
  8. glenwo2

    glenwo2 Adamantium Belt

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    @waiguoren @VivaRevolution @bobgeese @Whippy McGee @Mcountry
    Mock them all you want. {<shrug}



    The question that I'd like an answer to is : Are they wrong? o_Oo_Oo_O

    Meaning...if this is legit what they're saying(or even semi-legit), it would not be a good thing for Nadler and company as the Court would take the WH's side everytime.
     
    Last edited: Apr 30, 2019
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  9. andnowweknow

    andnowweknow The Giant On Whose Shoulders You Stand

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    Yes, they are wrong.

    /thread

    And Glen, put your helmet back on and knock the AbiG impersonation off.
     
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  10. hillelslovak87

    hillelslovak87 Steel Belt

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    Oh yay, another Joe Digenova opinion piece. Bet this isn't yet another stupid fucking thing that blathering idiot has been blown out over.
     
  11. hillelslovak87

    hillelslovak87 Steel Belt

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    Yes, like Mayor Pete and Uncle Joe. Fuckin' radicals.

    It would be nice if in all these poorly worded screeds of yours about how shitty America is, despite you not even being here, you actually displayed a modicum of intelligence or knowledge of my country.
     
  12. glenwo2

    glenwo2 Adamantium Belt

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    So they're wrong because you said so. GTFO with that shit.

    <3>

    Oh and if you're going to mention @abiG , do it.
     
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  13. andnowweknow

    andnowweknow The Giant On Whose Shoulders You Stand

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    They're wrong because they are idiots. Not because I said so Glen.
     
  14. glenwo2

    glenwo2 Adamantium Belt

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    You know....I find it amusing how a former deputy assistant attorney general in the Department of Justice (and former chief counsel to the Senate Select Committee on Intelligence), and a former U.S. attorney and independent counsel for the Justice Department, don't have any credibility with what they're saying just because they are pointing out the holes in Nadler's strategy that could end up backfiring on him should this go to the Courts.

    I imagine if these two were doing the opposite while chanting "Orange Man Bad", the leftist dipshits here would be counting them as credible (much like McMann counts Napolitano as such). <{pranko}>



    EDIT : Here's what I think...there may be more truth to what they said and that pisses all of you dipshits off something fierce. Nadler and his band of Merry dipshits may in fact be taking a Huge(or rather YUUUGE) "L" soon. <OKC16>


    EDIT : No rebuttal? Of course there's none 'cause you all know what those two stated are actually FACTUALLY correct. If and when this gets to the Courts, there is no way in hell that a Judge rules in favor of Nadler with this FACTUAL EVIDENCE available, for risk of looking like a Partisan Hack instead of a Judge.
     
    Last edited: May 1, 2019
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  15. glenwo2

    glenwo2 Adamantium Belt

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    Excuse the bump but I think this is somewhat related :



    Whoops! Obama and others apparently did a lot of "stonewalling" themselves in their day. <OKC16>

    (right, @hillelslovak87 ? )
     
    Last edited: May 9, 2019
  16. AlexDB9

    AlexDB9 Red Belt

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    Trump should hire the legal team of trots and pan esquire
     
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  17. glenwo2

    glenwo2 Adamantium Belt

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    Trots would end up being the *other* lawyer from My Cousin Vinny, who stuttered a lot.
     

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