Congress, Supreme Court, President Trump discussed on All In with Chris Hayes

Automatic TRANSCRIPT

The lower courts even more rarely make up to the courts of appeals or or very rarely to the supreme court but most of the time these disputes get resolved through accommodation negotiation and practice and those practices kind of hardened into law at least players in these systems believe themselves to be bound to a degree. I mean sometimes times they will say we wanted definitive judicial ruling. But it's pretty rare that that happens and much of the time people conduct themselves under sort of the legal regime that is developed outside outside of course and so. I do think that there is important. Precedent setting function. Just the last couple of weeks of witness testimony has created. Well this is. What's so interesting about this showdown right now between the White House and Congress on a variety of fronts in terms of subpoenaing of witnesses and documents right so like it'd be be a funny metaphor medicine in this context but like the thing about marriage is Thing about marriages would make some marriage. Amazing also sometimes difficult. Is that like. There's no third branch just to go to like. It's just the two of you work it all out you don't you. Don't get to go for a ruling and if there's conflict your 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 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 has been from the White House but now 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 relinquish a lot of it's less formal authorities. One example of that is that I used to exercise what's referred to as its inherent contempt power so if a witness a refuse to show up to testify or produce documents it would directly hold hold that witness individual in contempt impose fines actually in prison in a cell underneath the capital individuals in the nineteen eighteen. Thirty thirty five thirty five and they had some dude in a hotel room. I'm just making that up later. We'll even and we'll take it out either. It is thirty five. I don't check to check. They don't do that anymore and I don't think anybody really thinks they should revive the practice of sending the sergeant at arms to actually actually sees witnesses but John Bolton with a handcuffed to a raider amazing there are people who are suggesting that Congress longer should really do I. 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 lacked the inherent authorities themselves to do it. 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 have been important and 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 at the trump administration has made that certain high level White House officials officials enjoy absolute testimonial immunity. They don't even need to respond. To congressional subpoenas is you know 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 not above the law then his advisers visors and to be. And so that's the ruling out of District Court in this Don mcgann case and then there are a couple of rulings in you know these formally unrelated conceptually sort of related cases involving the president's taxes axes in which the lower courts have also said pretty categorically that 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 at all because the president is involved and that's essentially the argument that the White House has been making too. There's so let's talk about. There's three cases one of them doesn't 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 encrypted. Letter Rudy Giuliani but like convoy like actually gets I mean to the extent the president as anyone. I don't know but he actually gets paid me. Actually a rights legal brief does legal work. He's the one who made this insane. The argument that like shot someone Fifth Avenue. You can investigate him. Let's sort of take that aside for a second because it doesn't quite play this like direct institutional question about the two branches. There's there's judge Catania Brand Jackson's decision in the District Court which basically was over the matter of whether Don mcgann could be a lovely subpoenaed by Congress. She writes this hundred 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 immunity is nowhere in the constitution. There's nowhere in our legal tradition. The you can block people now. There are privileges that obtain and basically she clears the path for him to 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. Important one the White House hasn't even done that. Like there is executive privilege and the scope of executive privilege which is the subject of a lot of debate and it's unclear who adjudicates that in the end 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 it's just inconsistent with. There's there's limited case law on it but none of these privileges are absolute and there's no real authority for the proposition that 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 levels of the federal courts at District Court saying you have to hand over. The documents to the accounting firm writes the trump intervenes to stop the firm from handing it over. They say you have to hand it over for and then a three judge panel on the Circuit Court affirms that District Court opinion. That's also going to now be a petition to the Supreme Court which they're gonNA here in a few weeks they consider sitter whether to take those cases. There's a good chance they'll take at least the case and maybe even the New York as as well let's talk about the law there because it just seems to me like it. It just seems crazy to me in terms of the constitution that if Congress says we need to investigate the president's finances that the president can be like no you can't like that just seems to me as as just a basic question of I would personally like to know if like the Saudi Kingdom pays him fifty million lean dollars a year in bribes. I don't think that's the case but like I would like to definitively rule out same with the Turks like there's all sorts of things that I think I would like to definitively establish the presence finances finances and it just seems nuts to me. 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 were investigating 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 that Congress has exercising when it is doing this sort of thing. It's not explicitly in the constitution and there is no over the word oversight. It's just not there and yet the Supreme Court from very early on has said the power of inquiry is an important important adjunct to Congress has numerous powers the sort of heart of which is lawmaking and so typically when it engage in some kind of fact-finding it explains it it is doing so in order to inform its consideration of passing laws or of overseeing agencies. You know it links up what it is doing often again to specific lawmaking so here it said something like thinking about passing some ethics laws that apply to the president and so we kind of want to know what these tax returns show to inform our consideration ratio lawmaking judge rouse had around that he circuit to sense from that majority opinion right. She is a trump appointee. Who Fill cabinet right like all these judges of Federalist Society Heidi Conservative judge? who went through with McConnell's stewardship yet and I think is now almost surely on Supreme Court shortlist in that Administration and she writes this long opinion opinion? That says basically what the what Congress is trying to do is. They're saying they're thinking about lawmaking 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 an executive branch function and part of that proposition is true of course row and other sort of conservatives of her stripe 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 of sort of heads. The president wins tails. You lose especially fun. If she makes the argument that like Sivan's can have either. I probably would but so was weird about her. Descend does she says you know it's improper. They're thinking about laws. 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 at the impeachment inquiry but the request stems from some months ago and so the kind of facts on the ground when this congressional committee ready made its request Tomase ours. Were very different from the facts. Now which is the one reason I think. The Supreme Court might not take skis because they would be arguing in the abstract about Congress power absent impeachment inquiry to request these kinds of. Maybe they refile a request. That explicitly ties the interest to the impeachment inquiry and not changes the calculus. But but those are the that's basically the universe of argument. I mean again i. I'm I'm playing sort of like ignorance 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 been having practice. We we should just do it like we should know what the president's income and accounts are we should know who is money to and who he gets payments from or she and we're going to do do that and like peers are doing the fact-finding for legislative purpose. Like do that it just seems like how could that you know again 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 we'll we'll see I mean I think it's like they think they can count to five on the Supreme Court for everything everything and that's why they're rushing to get up there and that's also why they're making frankly like pretty ludicrous arguments and a lot of these cases and that's not coming from me. That's coming from the the judges a 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 and not just judges but you you know kind of lawyers of all ideological thought that some of the arguments made by the administration by White House. Counsel pets have alone in some of his correspondence with Congress in 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 seat Pete trump cotton to five and either these cases. But that's eating these words well so that point about what the approach is here. I mean Charlie. Savage has a piece in the Times today. That basically says they keep losing in the courts. But they're winning because they're delaying right right. Like the key point is they keep getting the stays and it's hard to explain all this mechanisms and again like my mastery of civil procedure is terr- it. It's it's it's it's not good. Well I mean it's fine for a layman but but the point is it like they keep losing keep getting stays like it's it's just a nice..

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