Opinion | Why Is Mitch McConnell So Afraid of John Bolton? – By Neal K. Katyal and George T. Conway III – The New York Times

By Neal K. Katyal and 

Mr. Katyal, the author of “Impeach: The Case Against Donald Trump,” and Mr. Conway, an adviser to the Lincoln Project, are lawyers.

Credit…Brendan Smialowski/Agence France-Presse — Getty Images

“The importance of John Bolton’s offer to testify if subpoenaed in the impeachment proceedings against President Trump cannot be overstated. In a single stroke, Mr. Bolton, the former national security adviser, elevated truth and transparency over political gamesmanship.

The Senate must take him up on his offer, as well as demand the testimony of President Trump and the administration officials he has barred from testifying. The Senate majority leader, Mitch McConnell, reportedly has the votes to proceed with the trial despite no agreement with Democrats on new witnesses and to leave it a question to take up after opening arguments. The Senate still must declare that it will call witnesses during the trial.

Everyone — Republicans, Democrats and independents — must know that these crucial witnesses will be heard.

The core principle behind the rule of law is that justice is blind and partisan identity should not influence a trial’s outcome. But anyone watching Mr. McConnell twist himself into knots in trying to block witnesses and documents has to wonder whether this notion ever took root in his mind. He has gone so far as to say that “there will be no difference between the president’s position and our position as to how to handle this to the extent that we can.” He also said, “There’s no chance the president is going to be removed from office.” “

Opinion | What Trump Is Hiding From the Impeachment Hearings – By Neal K. Katyal – The New York Times

By 

Mr. Katyal is a former acting solicitor general and a law professor.

Credit…Illustration by Alicia Tatone; Photographs by Damon Winter/The New York Times, and Guido Mieth and mbell, via Getty Images

“The public impeachment hearings this week will be at least as important for what is not said as for what is. Congress will no doubt focus a lot on President Trump’s dealings with Ukraine and his secret plan to get that government to announce a public investigation of the man he considered his chief political rival, Joe Biden.

But think about what the president is trying to hide in the hearings. He has been blocking government officials from testifying before Congress, invoking specious claims of constitutional privilege. And while the Ukraine allegations have rightly captured the attention of Congress and much of the public, Mr. Trump’s effort to hinder the House investigation of him is at least as great a threat to the rule of law. It strikes at the heart of American democracy — and it is itself the essence of an impeachable offense.

President Trump has categorically refused to cooperate with the impeachment investigation. He has declined to turn over documents related to the inquiry and has instructed all members of his administration not to testify before Congress. Every member of the executive branch who has gone to tell the truth to the House impeachment investigators — like Marie Yovanovich and Alexander Vindman (and maybe Gordon Sondland, too, at least the second time around) — has done so in defiance of the president’s instructions. President Trump’s personal lawyer, Rudy Giuliani, has refused to testify. Secretary of Defense Mike Esper, Energy Secretary Rick Perry, Secretary of State Mike Pompeo and the acting White House chief of staff, Mick Mulvaney, have ignored congressional subpoenas related to the investigation.”

Opinion | The House Can Play Hardball, Too. It Can Arrest Giuliani. – By Josh Chafetz – The New York Times

By 

Josh Chafetz is the author of “Congress’s Constitution.”

CreditCreditDamon Winter/The New York Times

“In his letter to House leadership, the White House counsel, Pat Cipollone, drew a line in the sand: The administration will not “participate in” the impeachment proceedings in any way. The odd language of “participate in” — presidential impeachment is not meant to be a collaboration between Congress and the president — obscures the central thrust of the letter: The White House is refusing to respond to any subpoenas or other demands for information from the House.

Of course, other administrations have fought with Congress over access to information, but those fights have centered around clearly articulated objections, supported by legal reasoning, to turning over specific documents or allowing specific officials to testify. The Trump administration’s wholesale refusal to treat congressional information demands as legitimate is so different in degree as to become different in kind.

It might seem like the White House has the House of Representatives over a barrel. If the president simply refuses to engage, what can the House do? How does a chamber of Congress go about wringing information from an unwilling executive branch?

Let’s get one thing out of the way at the outset: The answer is unlikely to be found in a courtroom. That’s not to say that the House probably wouldn’t win on the merits. Most of the administration’s arguments are risible, and even many Republican judges will have trouble swallowing them. Indeed, when the George W. Bush and Barack Obama administrations raised significantly more plausible objections to congressional subpoenas, the courts sided with the House, ordering the executive to turn over the vast majority of the subpoenaed material.”

Opinion | What Hunter Biden Did Was Legal — And That’s the Problem – By Peter Schweizer – The New York Times

By 

Mr. Schweizer is the author, most recently, of “Secret Empires: How the American Political Class Hides Corruption and Enriches Family and Friends.”

CreditCreditLarry Downing/Reuters

“In 2016, JPMorgan Chase agreed to pay $264 million as part of a settlement with the federal government. The reason? An Asian subsidiary of the company had hired the children of Chinese government officials in the hopes of currying favor with their powerful parents — a violation of the Foreign Corrupt Practices Act.

Had the same thing happened with a foreign company and an American politician’s family, however, no violation would have occurred — because no equivalent American law prevents a foreign company or government from hiring the family members of American politicians.

This glaring loophole provides political families with an opportunity to effectively “offshore” corruption and cronyism. It gives the politically connected class enormously tempting opportunities for self-dealing, the sort of thing that is blatantly illegal in almost any other context.

Consider two Washington power families: the Bidens and the McConnell-Chaos.

As vice president, Joe Biden served as point person on American policy toward China and Ukraine. In both instances, his son Hunter, a businessman, landed deals he was apparently unqualified to score save for one thing: his father.”

David Lindsay:  I don’t like a lot of red tape, but

“The problem more broadly is that we rely on a hodgepodge of laws that lack the clarity and bright ethical lines found in the Foreign Corrupt Practices Act. That needs to change. International bribery laws clearly state that if a person or entity pays a politician’s family member and gets favors in return, it’s an act of bribery; it’s no different from the politician taking the money himself.

Obviously, the immediate family members of high-ranking politicians have to work — no one is saying otherwise. But given their unparalleled access, they should also be required to be transparent about what they are doing.

At a minimum, we need to strengthen American disclosure rules. Joe Biden and Elaine Chao have to report when someone sends them a $500 campaign donation, or when they make a $5,000 investment in a stock. But when their family members strike lucrative deals with a foreign government or oligarch, the reporting requirements are vague. The personal financial disclosure rules for American public officials should be expanded to include details concerning all their immediate family members (and not just their spouses, as the law currently states), and any dealings with foreign governments.”

All this sounds good, but it makes me nervous. It has to be administered carefully, or it becomes a brake on decent people, while crooks just ignore or game the rules.

Opinion | The Mueller Report Is Coming. Here’s What to Expect. – by Neal Katyal – The New York Times

“Of course, there is no open impeachment inquiry now. But that could quickly change if Mr. Mueller writes a report that is anything less than a full clearing of the president: Congress would be under a constitutional obligation to investigate the facts for itself. Congress cannot be satisfied that impeachable offenses were not committed when Mr. Mueller’s investigative mandate did not cover many impeachable offenses, and when his report does not provide detailed information and answers to the few offenses that are within his mandate. This is where Mr. Mueller’s “by the book” behavior may be initially unsatisfying to Mr. Trump’s critics but ultimately more threatening to the president in the long run.

The overlapping investigations by different entities, housed in different branches of government, spanning geography and even different governments (such as the New York attorney general’s investigation into the Trump Foundation), make it difficult for anyone, even Attorney General Barr, to end the inquiries.

This news may be disappointing, for various reasons, to the president’s critics and supporters alike. But the ultimate result is a good one. It means the truth is likely to come out — maybe not on the timetable anyone wants, but it will. So whenever Mr. Mueller turns in his report, do not assume that things are over. Like “The king is dead, long live the King,” the investigations here serve a purpose that transcends any one individual or law enforcement entity. This is the architecture of our Constitution, which is designed to ferret out high-level wrongdoing through a variety of channels for the American public to see.”

Opinion | Matthew Whitaker and the Corruption of Justice – The New York Times

“By forcing out Attorney General Jeff Sessions and appointing Mr. Sessions’s chief of staff, Matthew Whitaker, as acting attorney general to take over the Justice Department — and, not incidentally, the investigation by the special counsel, Robert Mueller — President Trump has set off a storm of legal questions.

Does the appointment of Mr. Whitaker comport with the Appointments Clause of the Constitution or the Federal Vacancies Reform Act of 1998? Doesn’t the law give control of the department to Rod Rosenstein, the deputy attorney general who appointed Mr. Mueller and oversaw the investigation because Mr. Sessions had recused himself?

To add to the academic discussion, the Justice Department’s own Office of Legal Counsel, which weighs in on major legal questions, gave its imprimatur to Mr. Trump’s decision on Wednesday. Now the state of Maryland and at least one criminal defendant are challenging the legality of Mr. Whitaker’s appointment in hopes that a federal judge will declare it invalid.

But all of this debate, hairsplitting and litigation distracts from a more persistent question: Is it O.K. for a president to shut down an investigation of himself? To answer that question yes is to take the position that not only this president, but any president in the future, is free to take the law into his own hands.”

Supreme Court Won’t Block New Pennsylvania Voting Maps – The New York Times

“WASHINGTON — The Supreme Court rejected on Monday a second emergency application from Republican lawmakers in Pennsylvania seeking to overturn decisions from that state’s highest court, which had ruled that Pennsylvania’s congressional map had been warped by partisan gerrymandering and then imposed one of its own.

The ruling means a new map drawn by the Pennsylvania Supreme Court will very likely be in effect in this year’s elections, setting the stage for possible gains by Democrats. Under the current map, Republicans hold 12 seats while Democrats hold five and are expected to pick up another when the result of a special election last week is certified.The latest application was denied by the full Supreme Court without comment or noted dissents.”

David Lindsay: The resistance to GOP Trumptopia just got a boost from the Supreme Court! Thank you for calling one for democracy. Pennsylvania districts will be un-gerrymandered

Is Devin Nunes Obstructing Justice? – By NORMAN L. EISEN- CAROLINE FREDRICKSON and LAURENCE H. TRIBE

“As public scrutiny exposes deep flaws in the memo from the chairman of the House Intelligence Committee, Devin Nunes, about alleged F.B.I. surveillance abuses, the committee’s Republicans are increasingly downplaying its significance. Mr. Nunes’s colleagues are right to seek some distance from this caper — not to mention other similar memos he has hinted at releasing. That’s because by writing and releasing the memo, the chairman may just have landed himself, and his staff members, in the middle of Robert Mueller’s obstruction of justice investigation.

This risk emerged when Repesentative Mike Quigley, a Democrat on the committee, asked Mr. Nunes whether he or his staff coordinated the memo with the White House. Mr. Nunes said he had not — but refused to answer the same question about his staff. Facing a second round of questions on this issue during a committee meeting last week, Mr. Nunes again demurred, except to read a narrow statement that the White House was not involved in the actual drafting.In additional comments to the press, the committee staff director noted the memo was a “‘team effort’ that involved investigators who had access to source material.”

Yes- the President Can Obstruct Justice – The New York Times

“You know you have a problem when you’ve been president for less than 11 months and you’re already relying on Richard Nixon’s definition of what’s legal.

On Monday morning, Axios reported that Mr. Trump’s top personal lawyer, John Dowd, said in an interview that the “president cannot obstruct justice because he is the chief law enforcement officer” under the Constitution and “has every right to express his view of any case.”This will come as news to Congress, which has passed laws criminalizing the obstruction of justice and decided twice in the last four decades that when a president violates those laws he has committed an impeachable offense.

In 1974, the first article of impeachment drafted by the House of Representatives charged President Nixon with “interfering or endeavoring to interfere with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, the office of Watergate Special Prosecution Force.”A quarter-century later, President Bill Clinton was impeached by the House for, among other things, having “prevented, obstructed and impeded the administration of justice” and for having “engaged personally, and through his subordinates and agents, in a course of conduct or scheme designed to delay, impede, cover up and conceal the existence of evidence and testimony.” ”

DL: Yes, thank you.
Here are some excellent comments, just a few of many.

Bruce Rozenblit is a trusted commenter Kansas City, MO 15 hours ago
If this is the best defense Trump’s lawyer can come up with, then Trump should get another lawyer.

This is a non-defense defense. It is an idiotic circular argument. It’s the kind of thing a person would expect Hannity to say.

Due to the weakness of this strategy, logic can only lead to the conclusion that Trump has no defense.

I don’t like to deify the founding fathers as many do. They were mere mortals like all of us. But they did the modern world a tremendous service when they set our government up with three branches of equal power. One is hopelessly corrupt, one is bought and paid for and so far at least one, the judiciary still functions. If that branch collapses under the weight of partisan politics, we are done.

448 Recommended

TWR New York 16 hours ago
We are the heirs of Magna Carta upon which the founders of our American republic established our constitutional democracy. Magna Carta has not only been been invoked on the floor of the U.S. Senate in response to executive overreach but also cited as legally authoritative precedent in decisions by the U.S. Supreme Court. If nothing else, it stands for the principle that in Anglo-American jurisprudence and governance that “the sovereign is not above the law.” Are we now willing to allow a president to assert that he, like Louis XIV, is the state and above the law? Heaven help us if our democratic institutions agree with him.
377 Recommended

ChristineMcM

is a trusted commenter Massachusetts 15 hours ago

“You cannot charge a president with obstruction of justice for exercising his constitutional power to fire Comey and to tell the Justice Department who to investigate and who not to investigate.”

This from Alan Dershowitz whose tenured spot at Harvard Law seems to have gone to his head.

No, I’m not a lawyer, but I do know why the US fought a revolution. I also know the founders were laser focused on creating a system of 3 branches of government, with checks and balances to keep any one person from acting like a king.

If Donald Trump could instruct Justice who to investigate –or not–he’d exercise the unchecked power of a king who not only administers laws, but makes them too.

I recently heard a lawyer frame it another way: the President only supervises judicial processes, not judicial content.

Frankly, I think Trump’s lawyers are all crackpots. One’s job seems to be to tell him fairy stories to calm him down before bed. Another’s is to go on TV, gesticulate wildly, and argue with pundits, sounding increasingly incoherent. The third who wrote the tweet has been videotaped cursing and making obscene gestures to reporters as he exits court after losing a case.

Maybe if Donald Trump paid these guys more, he’d have better counsel, at least lawyers who would tell him he isn’t a king.

Or a dictator, no matter how much Donald Trump tries to act like one.

pmbrig

Massachusetts 11 hours ago

The claim is that the president is the nation’s highest ranking law enforcement officer and has the constitutional authority to supervise and control the executive branch and can make decisions about what law enforcement actions will be pursued, without any checks on that power. This is tantamount to saying that the President is above the law.

That, my friends, is called a dictatorship.