A good, if long look at what’s going on and what happens next, including the assertion of protective executive privilege:
Let me guess, it ends with Kavanaugh being the critical tie-breaking vote on something…
Nope. More on protective exec priv:
The assertion of privilege is not an actual “conclusive” assertion of executive privilege; it is only a “protective” assertion. As the Department of Justice’s letter to the committee explained, “this protective assertion of executive privilege ensures the President’s ability to make a final decision whether to assert privilege following a full review of these materials.” In other words, the president has asserted executive privilege in order to be able to determine whether to assert executive privilege. What does that even mean? And why would the administration take such an action? A bit of background helps explain what is really happening here.
First, it is important to note the extent of the material that the subpoena demands—and, correspondingly, the protective assertion of privilege covers.
As I and others have explained, only certain categories of information fall within the scope of executive privilege. In general, those categories are presidential communications, sensitive law enforcement information, internal deliberations, confidential national security or diplomatic information (including classified information), and attorney-client information. Given that the special counsel’s investigation included criminal and counterintelligence components, it is not surprising that Barr’s letter suggests the subpoenaed materials “include law enforcement information, information about sensitive intelligence sources and methods.” The special counsel’s office assisted in making redactions to protect this type of material, which implicates the law enforcement and national security information components of executive privilege. Some of the categories of redacted material, however, do not fall within traditional executive privilege components. In particular, grand jury material has never itself been considered a component of executive privilege.
Maybe the lesson to take away from that is that the GOP never really cared about trade policy at all. They care about helping the rich and fucking the poors. Trade policy was just a means to that end.
How would it help for them to read it, and no one else?
Sharpe
2814
I’m not really sure what the Dems lose by reading the unredacted report in a closed environment. They can always come out afterwards and say “now that I’ve had a brief, limited opportunity to read the document, it is all the more important to obtain a full release for Congress, etc. etc.”
Unless there is some precedent for reading the document in a closed environment as being some kind of “waiver” of the need for the document, then I don’t see why the Dems don’t just read it and then demand the full release.
The problem with that argument is this: assuming the President is actually immune from prosecution while in office (which I don’t assume, but whatever), any President accused but not charged with a crime could defend himself against the accusation by waiving that immunity and facing the charges. Failing that, the President could demand an impeachment proceeding in Congress to prove his/her innocence. Why not?
Pretty clearly, they think that doing so would be acceding to Barr’s obstruction efforts; playing his game. They don’t want to do that. Maybe it’s stupid, but it isn’t obviously stupid, since they gain nothing at all by having a few reps read the redacted parts but be legally constrained from saying what they saw.
magnet
2817
Nothing in the OLC opinion suggests that the President can waive immunity. According to the OLC opinion, prosecution of the President would render the executive unable to perform its duties. The executive cannot intentionally do that.
The President has no power to order impeachment.
More generally, I think Mueller’s argument is that formally accusing someone of a crime is only the start of a process with a clearly defined end. And if there is no possible way to reach the end, then there is no reason for him to start the process. It’s like investigating a crime boss who suddenly dies during the investigation. Should he be formally accused of a crime posthumously? Of course not. It’s pointless.
In Trump’s case, maybe there are political reasons to start a process he can’t finish. But Mueller is not supposed to care about politics.
Sharpe
2818
In the big picture, it’s clear that Mueller interpreted his job as narrowly as possibly within the confines of a reasonable interpretation of the law. I would strongly prefer he had interpreted his job much more broadly, but it is what it is.
I don’t believe the law required Mueller to do things so narrowly and small “c” conservatively, but that’s what he did. This was intentional on his part IMO. I believe there was room for him to communicate the results of his report in much better ways (even if you are prohibited from using the numeral “4”, the sum of 2+2 is still…).
However, the report is done so that’s all spilled milk at this point. I do think there is room for a better expression of the actual meaning of his findings to come out in congressional testimony.
Specifically, Mueller found that the 3 legal elements of obstruction were met in 6 of 10 incidents he investigated and that legally is like saying “X = 2 and Y = 2 so the sum of X+Y is…”. I’m guardedly optimistic that Congress can ask the right questions of Mueller to get the truth out.
One of the justification Nadler used for releasing the whole report was he wanted the committee to be able to discuss it in executive session. I thought it was perfectly valid argument which is strengthed if Nadler can say I’ve read redacted portions, they raise some serious questions. Based on this information we need to call some additional witness in a closed door session. Of course, Nadler can’t reveal to the public what those serious issues are because they involve sensitive material. The whole committee will also need access to the underacted report to understand the witness testimony.
Democrats to need to pick their battles. The law appears unambiguous on Trump’s tax returns so if they want to start jailing folks for that I think it is entirely justified. In contrast, the Mueller reported wasn’t that heavily redacted so demanding that every Congressman and their staff have unrestricted to it, dramatically increases the likelihood of the unredacted report leaking to the general public. This would cause harm to ongoing investigations as well as source and methods, and grand jury testimony Letting the Republican argue that Democrats don’t care about national security, law enforcement etc…
Why would it have to? The President can waive privilege, what would prevent him from waiving immunity? As to the rationale of the OLC opinion, it’s crap, so I’m not particularly impressed by it.
I didn’t say order it, I said demand it. If a President demands impeachment to clear her/his name, and Congress fails to accommodate the demand, than the accusation is going to be seen as unfair and politically motivated, and the stain to the reputation of the President is averted.
Yes, I agree. That’s the point I’m making. Mueller could have called a spade a spade, even if he couldn’t make a formal charge, and there was no good legal reason not to. A rationale which says no one can ever accuse a President of wrongdoing because an immune President can’t defend himself is obvious anti-democratic nonsense.
If I was King. I’d make every American read this column or George Will’s shorter version
I’d also flog any Congressperson who uses the term co-equal branch.
Whenever the president commits a new offense against the Constitution, one of my Democratic colleagues will inevitably rise on the House or Senate floor and implore the president to remember that we are a co-equal branch of government
https://www.washingtonpost.com/outlook/congress-isnt-just-a-co-equal-branch-were-first-among-equals/2019/05/09/e3caa552-7206-11e9-9eb4-0828f5389013_story.html?utm_term=.225740d58ba6
If only Andy Kaufman could do it.
ShivaX
2824
A thread of judicial beatdowns and stupidity.
Funny how lawyers of criminals always argue their client is above the law.
nKoan
2827
That’s some good lawyering.
milo
2828
Well, it’s hard to say. Did they take any notes? Cause that would be disqualifying right there.
