Timothy Benton | May 17, 2019 | 0
Trump Stops Cooperating, Threatens Executive Privilege
We had seen since the Mueller report has finished, even before it was done, Congress was determined not to do oversight, instead go on a fishing trip to try to dig through all details of Trump, his family, friends, associates, to find something, anything to use against him. Trump has finally had enough, has threatened to use Executive Privilege to stop all cooperation.
The question is then raised, does the president have the right to claim
Executive Privilege to stop this type of thing, and does Congress have the legal authority to just dig into someone’s life until they find something, anything that they can use to attack or impeach?
To investigate you need to have these in place before you start:
- Indications and plausibility of allegations that a violation of a statute or regulation has been committed;
- the nature and seriousness of the alleged activity;
- the effect of the alleged illegal or improper activity
- the level of the position of individuals against whom the allegations are made (wrongdoing by high-ranking agency officials is more damaging);
- the deterrent effect knowledge of the investigation may have on others who may consider committing similar illegal or improper acts; and
- other considerations that the AG deems appropriate.
This is the guideline set up by the government, yet they seem to be ignoring this, they are not asking for evidence of wrongdoing, they want to search the past in Trump’s life to see what they can uncover, this by definition is illegal, you have to have probable cause to investigate, you can’t do it just because you feel like it. Like it or not, the president is also included in the same protection under the law that the rest of us are.
An investigative plan outlines the pertinent facts of an allegation and how to best obtain evidence that will either prove or disprove matters essential to the offense alleged. Yet this is not being done, there is no allegation, only suspicion of wrongdoing, this is not the legal right of Congress to this, they have to have cause to investigate.
Now, they could choose to investigate the Stormy Daniels affair, the payoff that followed, but they really would gain little from this, I am not even sure if such a thing could be charged. The claim that the president can’t pay out of his own money is pure nonsense, and that is what he did. He had Cohen pay, he then cut checks out of his personal funds to pay for this, yet you are hearing this is a campaign law violation, that is a lie, it only would have been if he had used campaign funds to pay for this.
Can Congress overturn Executive Privilege? This was tried in the United States v. Nixon, 418 U.S. 683 (1974), the supreme court confirmed the right of executive privilege, but with probable cause, Congress had a right to demand that material be handed over to afford them the right to investigate.
But what we have here is not an investigation of wrongdoing, this is an investigation to find wrongdoing, Trump has every right to stop this and not cooperate, to declare Executive Privilege and force this to go to court. I think that if this does, and Congress is not able to show evidence, just the desire to find a crime, the court will overturn this, say they are overstepping their power, this will put this all to a halt, will force Congress to only investigate what they can show proof of suspicion.
I want to end this with some excerpts from Justia, here they deal with Congressional rights to investigate:
Source of the Power to Investigate
No provision of the Constitution expressly authorizes either house of Congress to make investigations and exact testimony to the end that it may exercise its legislative functions effectively and advisedly. But such a power had been frequently exercised by the British Parliament and by the Assemblies of the American Colonies prior to the adoption of the Constitution.185 It was asserted by the House of Representatives as early as 1792 when it appointed a committee to investigate the defeat of General St. Clair and his army by the Indians in the Northwest and empowered it to “call for such persons, papers, and records, as may be necessary to assist their inquiries.”186
The Court has long since accorded its agreement with Congress that the investigatory power is so essential to the legislative function as to be implied from the general vesting of legislative power in Congress. “We are of the opinion,” wrote Justice Van Devanter for a unanimous Court, “that the power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function. . . . A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. In that period the power of inquiry—with enforcing process—was regarded and employed as a necessary and appropriate attribute of the power to legislate—indeed, was treated as inhering in it. Thus there is ample warrant for thinking, as we do, that the constitutional provisions which commit the legislative function to the two houses are intended to include this attribute to the end that the function may be effectively exercised.”187
And, in a 1957 opinion generally hostile to the exercise of the investigatory power in the post-War years, Chief Justice Warren did not question the basic power. “The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste.”188 Justice Harlan summarized the matter in 1959. “The power of inquiry has been employed by Congress throughout our history, over the whole range of the national interests concerning which Congress might legislate or decide upon due investigation not to legislate; it has similarly been utilized in determining what to appropriate from the national purse, or whether to appropriate. The scope of the power of inquiry, in short, is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.”189
Broad as the power of inquiry is, it is not unlimited. The power of investigation may properly be employed only “in aid of the legislative function.”190 Its outermost boundaries are marked, then, by the outermost boundaries of the power to legislate. In principle, the Court is clear on the limitations, clear “that neither house of Congress possesses a ‘general power of making inquiry into the private affairs of the citizen’; that the power actually possessed is limited to inquiries relating to matters of which the particular house ‘has jurisdiction’ and in respect of which it rightfully may take other action; that if the inquiry relates to ‘a matter wherein relief or redress could be had only by a judicial proceeding’ it is not within the range of this power, but must be left to the courts, conformably to the constitutional separation of governmental powers; and that for the purpose of determining the essential character of the inquiry recourse must be had to the resolution or order under which it is made.”191
I want to focus on the last paragraph, and this is where the problem is coming in. Congress is trying now to delve into the President’s private life, to dig through financial records, dig through the records of his kids, associates, this is digging into his private affairs, something they are not legally able to do, this is why the use of Executive Privilege is so important.