No. of Recommendations: 27
I don’t really hear Republicans saying Trump is innocent, they’re just arguing he should be able to do whatever he wants because Republicans control the senate.

They’re trying desperately to keep witnesses from testifying and evidence under wraps. Not the actions of innocent people.

Shame on them. Party over country. Party over the rule of law.

By all means I could be wrong. Trump supporters who don’t think he withheld aid? Hello?
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Trump supporters who don’t think he withheld aid? Hello?

If you're in the cult, none of it matters.
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Take your pick:


A) I don't care what the law says, they all do it!

B) He's the only one protecting our guns!

C) Benghazi!
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c'mon stop the hate of government.

Let em do what they need.

JediG
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Trump supporters who don’t think he withheld aid? Hello?

I'd also like to ask any Trump supporter whether they believe that Trump asked Zelinsky to investigate the Bidens. He's already admitted that he did so via the "perfect" phone call.

So it sounds like we've got a QUID and a QUO. The only question might be the PRO. But that's where the 17 witnesses come in.

I'm hoping that McConnell will have to back down and allow more witnesses to testify.
I couldn't care less if they called Hunter Biden and Adam Schiff. Not the whistleblower, though. That person should be protected!

On Sunday, Senator Cornyn said that Rudy Giuliani shouldn't be called because he is "irrelevant." I suppose his trips to the Ukraine were just for fun.
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"By all means I could be wrong. Trump supporters who don’t think he withheld aid? Hello? "

Could be? If withheld is defined as delivered ...before...it was required to be delivered then you have a point....otherwise, not so much.
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If withheld is defined as delivered ...before...it was required to be delivered then you have a point....otherwise, not so much.

If withheld is defined as delivered only after the whistle-blower complaint was made...then you have a point....otherwise, not so much.

Needed a little fixin'

Pete
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Withheld does not mean...delivered early
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On Sunday, Senator Cornyn said that Rudy Giuliani shouldn't be called because he is "irrelevant." I suppose his trips to the Ukraine were just for fun.

But Rudy and Trump both said he wants to testify.
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"I don’t really hear Republicans saying Trump is innocent"

?? They say it all the time.

The two articles of impeachment don't accuse Trump of any real crime that meets the categories the founders put into the Constitution, so even the Democrats couldn't find a crime. Trump is innocent because he didn't commit any crimes, and in America you are innocent until proven guilty.

The House investigates, the Senate tries the case the House sent them, the Senate does not continue the investigation, that is not their role.
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Extortion and bribery aren’t crimes?

If Hillary did this you’d be defending her, right?
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If Trump is innocent why keep witnesses from testifying?

If Trump is innocent let him testify. Clinton did.

We all know why. Trump is a loose cannon who’s too stupid not to incriminate himself and the witnesses would crucify him. Even the conservative ones.
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"If Trump is innocent why keep witnesses from testifying?
If Trump is innocent let him testify. Clinton did.
We all know why."

Actually we ...all...don't know why. There is a principle involved here regarding the protection of the separation of powers involved which deals with 3 co-equal branches of government and the right of confidential discussions between the President and his advisors.
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...and the right of confidential discussions between the President and his advisors.

Boater,

That is a bunch of crap and you can simply be honest about it. The Ukraine information being withheld by Trump and the White House is not a matter of compromising national security. Remember Bolton is willing to testify. Query what that testimony might include relative to the testimony provided by others during the House impeachment inquiry. Executive privilege was the argument Nixon made when he initially refused to release the tapes. Of course, the high court ordered those tapes to be released. And then Nixon resigned.
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The two articles of impeachment don't accuse Trump of any real crime that meets the categories the founders put into the Constitution...

You and Mr. Dershowitz are in agreement; however, you are both wrong. You might take a look at the following video link by Professor Laurence Tribe:

https://www.youtube.com/watch?v=ADCUGx9wHhE

Here is another useful video link:

https://www.msnbc.com/the-beat-with-ari/watch/-dersh-o-mania...
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<<You and Mr. Dershowitz are in agreement; however, you are both wrong. >>



Actually, each Senator forms their own conclusion about such issues.


Seattle Pioneer
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" The Ukraine information being withheld by Trump and the White House is not a matter of compromising national security. "

Just for conversations sake.... you know this to be a fact ...How?

Executive privilege is a right of every President to claim, if it is disputed it can always be taken to court for a ruling.
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Just for conversations sake.... you know this to be a fact ...How?

It would be foolish of me to argue with a fool.
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"It would be foolish of me to argue with a fool."

You were going to argue with yourself?
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... the right of confidential discussions between the President and his advisors.

And like every other right, it can be overridden in the proper circumstances.

First Amendment - freedom of religion, speech, press, assembly. All rights. But when your religion calls for human sacrifice, that freedom of religion is not there. When your speech incites riots or is dangerous to others (the proverbial shouting of "fire" in a crowded theater), your speech is no longer free.

Second Amendment - right to bear arms. But you cannot bear any armament you choose. You can't have a nuclear weapon or a tank or a flamethrower.

Third Amendment - no quartering in a house. A bit archaic today, but it contains right in it's language when your rights can be overridden (during war).

Fourth Amendment - secure against unreasonable search and seizure. Once again, the amendment contains its own exceptions: Unreasonable. Reasonable search is allowed. Warrants require probable cause.

I could go on and on, but I'm sure you get the idea (even if you don't agree with it).

Just like all rights, there are times and places and situations where you lose those rights.

So the argument isn't that the president and his advisors have some right to confidential discussions. The question is when that right can be overridden for some greater purpose. I would argue that reasonable suspicion of inviting a foreign country to interfere in an election is a situation where the president and his advisors should lose that right to confidentiality.

You can't have three co-equal branches of government when any branch has unlimited ability to deceive another.

--Peter
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"The question is when that right can be overridden for some greater purpose. I would argue that reasonable suspicion of inviting a foreign country to interfere in an election is a situation where the president and his advisors should lose that right to confidentiality."

Perhaps, that is what the Supreme Court is for. The House Democrats ...chose... to not go that route..and are now demanding the Senate do something that they themselves were unwilling to do.
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So the argument isn't that the president and his advisors have some right to confidential discussions. The question is when that right can be overridden for some greater purpose.

There's another question above that one though - who decides when that right can be overridden for some greater purpose? Which branch of government gets to set the boundaries between the rights being asserted and when there are exceptions 'for some greater purpose'?

In our system of government, the answer is typically the courts. If there is a dispute between the Congress and the President over the scope of executive privilege, then that dispute can be resolved by the issuance of a final decision of a court of competent jurisdiction.

The precedent on this specific issue is mixed. Substantively, you have a number of cases holding that the executive privilege is somewhat limited in scope - which cuts against the WH. Procedurally, you have a number of cases where the courts have reached a decision on the scope of executive privilege - which cuts against the Democrats' failure to resolve this dispute in the courts.

In most contexts, in most court proceedings, you have a legal right to assert a privilege and request that your arguments in favor of that assertion be ruled upon. As long as you comply with the ruling once it is issued, you haven't "obstructed justice" by asserting a privilege.

The Democratic argument here is either that: i) the law is crystal clear that Trump doesn't have this privilege; or ii) there is an emergency situation of sufficient importance that we can't wait until the issue is resolved by the courts. I don't think either argument holds up. On the latter point, the courts are manifestly able to move quickly when emergency situations are demonstrated to them. On the former, while I think that Trump's case is very weak, I don't think there's precedent four-square against it that makes the argument specious enough that judicial review is wholly unnecessary.

In short - Trump's position does not require believing that "one branch has unlimited ability to deceive another." If there is a dispute between the branches over what documents and testimony they are entitled to, there is a remedy.

Albaby
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In short - Trump's position does not require believing that "one branch has unlimited ability to deceive another." If there is a dispute between the branches over what documents and testimony they are entitled to, there is a remedy.

I chose my word there poorly. "Deceive" isn't a good word choice. Perhaps "to withhold information from" would be better.

Such are the results of posting perhaps a bit too quickly.

On the point at hand, the Trump administration has asserted that none of it's advisors should testify and that no documents will be released after subpoena. What is the appropriate response to such a position? Is it to go to the courts and wait for a multi-year process* to unfold? Or is it to take such a statement at it's face value and assert that such a position is on it's face obstructive? Does the fact that some people disobeyed the administration's directive and chose to testify anyway change anything? Does any of this matter when we're talking about the political action of an impeachment? Which, as many have noted, is not an actual legal proceeding, even if it bears some resemblance to one.

Unfortunately, I'm not sure I'm qualified to answer those questions.

--Peter


* Even an expedited process might take several months. Unlike Bush v. Gore where there is a very hard and fast-approaching deadline for installation of the next President, is an upcoming election sufficient to require the courts to take an expedited look at the dispute?
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On the point at hand, the Trump administration has asserted that none of its advisors should testify and that no documents will be released after subpoena. What is the appropriate response to such a position? Is it to go to the courts and wait for a multi-year process* to unfold? Or is it to take such a statement at it's face value and assert that such a position is on it's face obstructive? Does the fact that some people disobeyed the administration's directive and chose to testify anyway change anything?

There are lots of different ways that Congress could respond to refusals to provide testimony and documents. Directly, it has a lot of ways to influence/cajole/almost-force the President to do things that it wants the Executive to do - the power of the purse and the statute-book are impressive things.

It can also go to court. As noted upthread, access to documents and testimony is not an area where the courts have abstained from ruling on disputes between the other two branches. There's a lot of instances where courts have reached decisions on those matters - and in the most famous one (U.S. v. Nixon), the President promptly complied with the Court order.

But that's a separate question from whether the President is doing anything wrongful in claiming that he has a very broad privilege and wants to have his day in court before waiving it. Normally, when people assert the existence of a privilege, we don't regard that as "obstruction" - even if they ultimately lose the argument.

Even an expedited process might take several months. Unlike Bush v. Gore where there is a very hard and fast-approaching deadline for installation of the next President, is an upcoming election sufficient to require the courts to take an expedited look at the dispute?

Don't know. The Democrats could always ask - I don't know whether they have.

Albaby
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It can also go to court. As noted upthread, access to documents and testimony is not an area where the courts have abstained from ruling on disputes between the other two branches.

They have gone to court on at least one current case (McGahn), and there was a ruling favorable to the House. Naturally, the administration appealed the decision, as is their right. We're still awaiting that ruling. And we can be fairly sure that whoever loses the appeal will ask the Supreme Court to weigh in.

And that's just one case. One can suppose that case would be dispositive for other similar cases, but I'm sure there's a good argument that each individual or document subpoenaed is unique in terms of executive privilege, with different criteria applied to each. That could lead to an ongoing string of litigation.

How long will all of this take? At some point, justice delayed is justice denied. One could argue that deliberately delaying justice by asking for the courts to review each and every subpoena is obstruction.

Finally, it's important to remember that we're currently dealing with impeachment, which is not actually a legal process. Impeachable offenses are what Congress says they are. The courts have no say in that. If the House charges obstruction and the Senate agrees, that's all that is necessary for removal.

--Peter
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One can suppose that case would be dispositive for other similar cases, but I'm sure there's a good argument that each individual or document subpoenaed is unique in terms of executive privilege, with different criteria applied to each. That could lead to an ongoing string of litigation.

That's not likely. Not all differences will be legally significant enough to matter. Some will - I think there's a difference between documents and witness testimony, and some cabinet positions are different than others. But I doubt we'd ever reach the point where every report or every government employee is treated by the courts as a unique circumstance.

Finally, it's important to remember that we're currently dealing with impeachment, which is not actually a legal process. Impeachable offenses are what Congress says they are.

True - but that doesn't mean that if Congress were to say that eating vanilla ice cream was an impeachable offense, that we (the public and participants on a discussion board) have to think they're right. Any more than the fact that Congress might decide that abuse of power is not an impeachable offense (which seems likely) means we have to agree they're right.

As an attorney, I work with attorney-client privilege a lot of the time. Because of that, it's hard for me to come at this without being colored a bit by the importance of the a-c privilege in my line of work. It seems weird to me that an assertion of that privilege (even one that is later determined to have been overbroad) might be considered obstruction, rather than something that the holder of the privilege is entitled to have weighed and ruled upon. We don't usually associate standing on one's rights under a colorable claim to be wrongful behavior, no matter how frustrating it might be to law enforcement or governmental bodies that such privileges exist and (sometimes) end up being litigated.

Albaby
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But I doubt we'd ever reach the point where every report or every government employee is treated by the courts as a unique circumstance.

I agree, but wouldn't that position need to be appropriately tested in court? Does the Sec of State have the same executive privilege as the Sec of HUD? How about the Chief of Staff? The Press Secretary? At some lower level, there is bound to be a limit to this, but at the highest levels, I can see each cabinet department being treated differently. And perhaps that difference might depend on the topic at hand. For some topics, they might have the same privilege. For others, they might not.

All of this legal testing takes time.


True - but that doesn't mean that if Congress were to say that eating vanilla ice cream was an impeachable offense, that we (the public and participants on a discussion board) have to think they're right.

Fair enough. But in the case of the President being removed for eating vanilla ice cream, he would still be removed from office. It then becomes up to the electorate to choose different representation in Washington - representation that aligns more closely with the electorate's opinion.

And there's the rub. If we wait for the courts to weigh in on the matter, it will be sometime in 2021 or 2022 for enough cases to be completed to get a good idea of the overall situation. But by then, Trump will either have been re-elected or not. If he's not re-elected, impeachment becomes moot. (Barring barring another Grover Cleveland situation.) If he is re-elected, he could be impeached, but the opportunity for the electorate to express their opinion through the ballot box will have passed. So a decision on executive privilege needs to be made sooner rather than later.


As an attorney, I work with attorney-client privilege a lot of the time. Because of that, it's hard for me to come at this without being colored a bit by the importance of the a-c privilege in my line of work. ... We don't usually associate standing on one's rights under a colorable claim to be wrongful behavior, no matter how frustrating it might be to law enforcement or governmental bodies that such privileges exist and (sometimes) end up being litigated.

I'd argue that there is a subtle but significant difference between a-c privilege and exec privilege. It is the difference between individual rights and the collective rights of the entire citizenry.

A-c privilege is rightly very broad. The individual is relatively powerless and uninformed when dealing with the government, particularly when the issue is a criminal matter between the two parties. The individual needs good counsel and needs to have his 5th amendment protections extended to that counsel. When the matter is a civil one, a-c privilege is still vital so that the attorney can fully and properly represent the client. Without the privilege, the attorney and client are not free to speak openly to each other in private, and the client will not be able to obtain proper representation in court.

Government officials, on the other hand, need to be held accountable, both to the people and to other branches of government. The executive, in particular, does need a certain amount of privilege to conduct the nation's affairs. But the privilege is extended so that the executive may conduct those affairs successfully, not to hide potential wrongdoing by the executive. In my limited reading of previous privilege cases, it appears that courts tend to favor disclosure when investigation of potential criminal activity is the reason for the disclosure request. The need for secrecy in conducting national affairs is subordinated to the need for the people to hold their elected representatives accountable.

--Peter
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If we wait for the courts to weigh in on the matter, it will be sometime in 2021 or 2022 for enough cases to be completed to get a good idea of the overall situation. But by then, Trump will either have been re-elected or not. If he's not re-elected, impeachment becomes moot. (Barring barring another Grover Cleveland situation.) If he is re-elected, he could be impeached, but the opportunity for the electorate to express their opinion through the ballot box will have passed. So a decision on executive privilege needs to be made sooner rather than later.

Certainly an argument that could be made to a court in a request to expedite. I don't know if the Democrats have done so. I don't think they have. They haven't even subpoena'd Bolton in connection with the impeachment process (as far as I know). I think that was a strategic decision - if they conceded that the President has a right to ask a court what the scope of his executive privilege is (and how it can be exercised), then they would have had to wait for a ruling. That would have posed considerable political challenges for them (which is not something the courts would look to in figuring out if this is time sensitive).

But just because the political timing is bad for the Democrats doesn't suddenly make it a 'high crime' for the President to insist on exercising a privilege which the courts have recognized exists, but the contours of which have not been established. I'm not saying he's right - I think he'll ultimately lose on the substance, though perhaps prevail on the process - but there's a lot of space between someone offering a claim that's going to lose and someone committing the high crime of 'obstruction' by asserting a legal argument.

Albaby
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albaby1: But just because the political timing is bad for the Democrats doesn't suddenly make it a 'high crime' for the President to insist on exercising a privilege which the courts have recognized exists...

Didn't the court rule against Trump and his claim of "absolute immunity from criminal process of any kind" with respect to his tax returns?

Anyway, this kind of sums up what Trump is all about (and has been all about his entire life):

So what is really going on here to prompt such legal gymnastics on the part of the President? I think there are two things at play. First, Trump's actions underscore (again) how desperate he is to avoid disclosing his tax returns and financial records. Second, notwithstanding their willingness to take a shot at it, Trump's lawyers are smart enough to know that succeeding on the merits was well out of their reach. So what was the true goal of this litigation? I think it is delay, delay, delay.

Delay is his game, plain and simple.


https://www.cnn.com/2019/10/07/opinions/trumps-breathtaking-...
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Didn't the court rule against Trump and his claim of "absolute immunity from criminal process of any kind" with respect to his tax returns?

Yes, but that's a different issue.

Delay is his game, plain and simple.

True - but you're allowed to exercise your rights in order to delay something bad from happening to you. You're not obstructing justice if you refuse to answer questions until your attorney shows up, or if you request a delay in your trial date, or if you assert that something is covered by a testimonial privilege and want to have a judge rule on it before you provide the information.

That's one reason why I think that article of impeachment is not only getting virtually no traction among Republicans, but not a whole lot of focus or discussion in the press. It's an open and shut case that Trump has refused to provide evidence, but you don't have a constant drumbeat of attention on that article. It seems like both Democrats and the media are treating that as the less serious and weaker of the two articles...and I think it's because of this issue. It's questionable that you can accuse someone of obstruction for using facially legal means to resist your efforts to convict them. If he was refusing a final court order, I think you'd see this being at the top of the agenda - but as long as he has a legal claim that hasn't been tested in the courts, I think it weakens the Democratic case.

Albaby
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"You can't have three co-equal branches of government when any branch has unlimited ability to deceive another."

I don't think authoritarians believe in three co-equal branches of government.
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Didn't the court rule against Trump and his claim of "absolute immunity from criminal process of any kind" with respect to his tax returns?

Yes, but that's a different issue.

Going back to this, in the McGahn appeal, I believe the administration also claimed "absolute immunity" from any testimony there as well.

To me, that doesn't sound the same as claiming an executive privilege over certain information.

The precedent here is that some information is subject to privilege and some is not. In a number of cases, courts have compelled testimony or documents after an assertion of privilege. But that's not what the administration is claiming in court. They are claiming a complete immunity from congressional subpoenas.

Isn't that a specious argument on it's face? And thus could be construed as obstruction?

--Peter
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