Congress, Supreme Court, White House discussed on Why Is This Happening? with Chris Hayes


Like funny metaphor to say in this context but like the thing about marriage is Think about marriages would make some marriage amazing and also sometimes difficult was it like. There's no third branch to like. It's just the two of you you work it all out you don't you. Don't get to go for a ruling and if there's conflict you're like beef you gotta just like work it out. There's not like in a workplace where it's like maybe there's a boss or something like and in some ways it's like they're in a marriage in a weird way like the presidency and the Congress they have to kind of work it out between each other and as it's breaking down there like running to this sort of third entity more and more because they can't work it out partly. I think because of how sort of implacable the obstruction obstruction has been from the White House. But now it is before the courts and there's not actually a huge body of law in this precisely for that reason right so when I said the Congress has sort of relinquished a lot of it's less formal authorities authorities one example of that is that it used to sort of exercise what's referred to as an inherent contempt power so if a witness a refused to show up to testify or produce documents agreements. It would directly. Hold that witnesses were individual in contempt. Impose fines actually in prison in a cell underneath the capital individuals. The House in the nineteen twenty five thirty five and they had like some dude in a hotel room. I think that's what I'm just making that seconds later we'll leave it in. We'll take it out. It is thirty five. I don't think that's too good to Jack to Jack. They don't do that anymore. I don't think anybody really thinks they should revive the practice of sending the sergeant at arms to actually sees witnesses but John Bolton with a handcuffed to a radiator amazing image I there are people who are putting earth suggesting that Congress really. I don't see it happening. But when they decided that they needed to go to court to enforce their subpoenas that that was an admission that they that they lacked the inherent authority to do what they needed to get this referee. But that's part of the reason I think these last few weeks that have shown that Congress can actually do a lot without recourse to the courts. Let's have been important And yet as you say there are these high stakes judicial disputes. That are playing out now. So we have this ruling that this legal argument that the trump administration has made that certain high level White House officials enjoy absolute testimonial immunity that they don't even need to respond. To Congressional. Subpoenas is without any real basis in law or logic that everything in our constitutional tradition and constitutional history and the limited Supreme Court precedent on. This question makes clear if the president is he's not above the law then his advisers and to be. And so. That's the ruling. Out of a district. Gordon Don mcgann case and then there are a couple of these formerly unrelated conceptually sort of related cases involving the president's tax in which the courts have also said pretty categorically these arguments that the rules don't apply at all that would ordinarily require document production of a third party that they don't apply all because the president is involved and that's essentially the argument that the White House has been making. There's so let's talk about. There's three cases one of them doesn't have have to do with Congress it has to do with The Manhattan District Attorney. WHO's seeking the president's taxes as part of the pursuit of an investigation? The president's actual lawyer William Convoy as opposed to his like fake drifter Rudy Giuliani but like contemplate like. Actually I mean to the extent the president pays anyone I don't know but he actually gets paid me actually a rights rights legal briefs and does legal work. He's the one who made this insane argument. That like you know if you shot someone in Fifth Avenue you can investigate him. What's sort of take that aside for second because it doesn't quite play this like direct institutional institutional question about the two branches? There's there's judge Catan. Jebron Jackson's decision in the District Court which basically was over the matter Don mcgann could be lawfully subpoenaed by Congress. She she writes this one hundred and twenty page opinion. That's like absolute like he definitely can be an has to show up and I think this is an interesting conceptual point like she says. This idea of absolute community is nowhere in the constitution and our legal tradition. The idea you can block people now. There are privileges that obtain and basically she clears the path for him to show show up and say I'm not answering that question and invoke executive privilege but one of the things. I think that it's a technical point but important when the White House hasn't even done that. Right like there is a the privilege and the scope of executive privilege is the subject of a lot of debate. And it's unclear who adjudicates that Nian but they haven't gotten to that point because even before you get to that privilege they're just saying like no you can't talk to these people right it's inconsistent with. There's a there's limited case law on it but none of these privileges are absolute and there's no real authority for the proposition. So you don't have to show up at all to negotiate over what are and are not permissible subjects of inquiry and that's basically the the ruling there. Of course that's going to be appealed. Then there's the mazars which is now gone through. Two levels of the federal courts Went District Court saying you have to hand over the documents to the accounting firm rights trump intervenes to stop the firm from handing it over over. They say you have to hand it over. And then a three judge panel on the Circuit Court affirms that disaccord opinion. That's also now be petitioned the Supreme Court which they're going to here in a few weeks reconsider whether to take those cases in a couple of weeks. Yeah there's a good chance they'll take at least the DC case and maybe even the case as well let's talk about the law there because it just seems to to me like it just seems crazy to me in terms of the constitution that if Congress says we need to investigate the presence finances that the president can. I'd be like no you can't like it just seems nuts to me as as just a basic question of like I would personally like to know if like the Saudi kingdom pays him fifty million dollars a year in bribes. I don't think that's the case but like I would like to definitively rule that out same with the Turks like there's all sorts of things that I think I I would like to definitively establish about the president's finances and it just seems nuts to meet you set a precedent. The Congress cannot get those documents. Well so it's tricky because they haven't really explained what they're doing in those terms they haven't said we're investigating the president because we want to know if he's taking bribes because this whole power of oversight or inquiry that's the power of the Congress's exercising when it is doing this sort of thing thing it's not explicitly in the Constitution and There is no oversee the word oversight. It's just not there and yet. The Supreme Court from very early on has said the power of inquiry. Kore- is an important adjunct to Congress's enumerated powers the sort of heart of which is lawmaking and so typically when it engages in some kind of fact-finding and it explains it it is doing so in order to inform its consideration of passing laws or of overseeing agencies links up what it is doing often again to specific to lawmaking so here it said something like we're thinking about passing some ethics laws that apply to the president and so we kind of want to know what these tax return return shows up to inform our consideration of lawmaking judge row so drowned that he circuit to sense from that majority opinion right. She is a trump appointee. who filled cavenaugh seat right like all these judges of Federalist Society Conservative judge who went through with McConnell Stewart? John Yeah and I think now almost surely on Supreme Court shortlist in that Administration attrition and she writes this long opinion that says basically what the what Congress is trying to do is. They're saying they're thinking about lawmaking but really they're trying to investigate. And that's a law enforcement function and Congress is not a law enforcement entity that's law enforcement is executive is an executive branch function and part of that proposition is true of course row and other sort of conservatives of her stripe think that you can't have any kind of independent authority inside the executive branch that would investigate the president so it's a little bit heads. The president wins tails. You lose if it'd be especially fun. If she makes the argument that like Sivan's can have either probably would but so was weird about her descended. She says it's improper thinking about laws like that's not really what they're trying to do here. And there's a constitutional mechanism for investigating presidential misconduct and that is impeachment. And so it's this weird opinion because she writes it a couple of weeks ago when we were already in this phase of the impeachment inquiry but the request stems from some months ago and so the kind of facts on the ground when this congressional committee made its request Tomase ours. We're very different from the facts. Now which is the one reason I think. The Supreme Court might not take this because they would be arguing in the abstract about Congress's versus power absent and impeachment inquiry to request these kinds of so. Maybe they refile a request. That explicitly ties the interest to the impeachment inquiry and that changes the calculus. But those are that's basically the universe of arguments in that I mean again. I'm I'm I'm playing like ignoramus blowhard here but it just seems to me like we're considering a law to make the president disclose his taxes which we don't have in the books and good God we should in has. It's been habit in practice. We should just do it. We should know what the president's income and accounts are we know who he is due and who he gets payments from or she. And we're going to do that and like peers are. That's what we're doing. Is the factfinding for our legislative purpose to do that. It just seems like how could that you know again and all this stuff at a certain level I'm really cynical about higher courts sort of vote counting and legal realism and I think that ultimately will will see I mean. I think it's like they. You think they can count to five on the Supreme Court for everything. And that's why they're rushing to get up there and that's also whether making frankly lake pretty ludicrous arguments and a lot of these cases and that's not coming thing for me that's coming from the. The judge is the first impression who keep getting the cases and being like they haven't been ruling like well. You've got a point here. It's been like this is pretty ridiculous. Yeah and and not just judges but lawyers of all ideological thought that some of the arguments made by the administration by what has council pets have alone in some in his correspondence with Congress in some of these briefs and in the New York case. They're just not particularly defensible legal positions. And that's why I retain a little bit more idealism about the Supreme Court than you do but I it's hard for me to see trump cotton to five in either these cases but that's reading these words well so the point about what the approach is here. I mean Charlie savage a piece in the Times today that basically says they keep losing the courts but they're winning because they're delaying right right. Like the key point they keep getting the stays and it's hard to explain all this mechanisms and again like my mastery of civil procedure is terrible. It's it's it's not good. Well I mean it's fine for a layman but but but the point is that like they keep losing keep getting stays like it's just and that's why our taxes yet ten teach meant that early on..

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