It looks like there was quite an argument today on the DC Court of Appeals. Judging from this, I’m almost hopeful they rule in favor of the Republicans since it will give a Democratic president many more tools to fix this damage. On the other hand, we know that presidents won’t always be Democrats . And we know that monarchy isn’t going to work well for us.
Anyway, this twitter thread is from WNYC’s Andrea Bernstein:
Some thoughts on this morning’s arguments in the DC Circuit Court of Appeals in the House’s cases against McGahn (because of his refusal to answer Congress’ subpoena re: Mueller) and Mnuchin, because of his approving spending on the border wall after Congress didn’t.
The words “king” “monarch” “revolution” and “gun battles, were uttered.
Essentially, the DOJ is arguing that Congress can’t sue the president because for the courts to rule would mean they would favor either the executive branch or the legislative branch and the very fact of their ruling would violate separation of powers.
The DOJ lawyer, Hash Mooppan said: “If a president violates all laws, the proper solution is removal from office, in no case is it for congress to file lawsuits.”
This produced quite the series of hypothetical questions from Judge Merrick Garland (who you remember, Obama nominated to the Supreme Court but McConnell blocked).
Garland’s 1st hypothetical: After defeat of a health care bill, the president instructs the Treasury to pay for health care insurance for any American who cannot get it. Would there be standing?
“No, your honor,” Mooppan said.
Garland’s 2nd hypothetical: “If, after PPP fails, the President instructs Treasury to spend 1K a month until the pandemic ends? No standing, right?”
Mooppan offered that there might be criminal law violations, which would be a deterrent.
To which Garland said…
Garland: So the president orders them not to bring a case, and issues pardon for any behavior. What’s the check now?
Mooppan answers, for the DOJ, that Congress could refuse to act on legislation or that the House could persuade the Senate (!) not to approve nominations.
One of Garland’s colleagues picked up on this:
“If a president in his first year in office redoes the separation of powers… nothing can be done until the next presidential election other than revolution?”
Essentially, the answer is Yes.
In his own arguments, the House Attorney, Douglas Letter, said:
“Surely nobody thinks…the House should go out and arrest people? Maybe we should have gun battles between the Sargeant-at-arms and the and security detail?”
He added that the White House counsel had argued during Senate impeachment proceedings that subpoenas issued by the House could be ignored because the House should have gone to court to enforce subpoenas. (Which is precisely what it is doing now and DOJ says it can’t do. )
To recap the admin’s position is
1 The House can issue subpoenas, but can’t enforce them.
2. POTUS can violate appropriations law and the only remedy is the next election.
3. A sitting President has absolute immunity from prosecution, even if he shoots someone on 5th Ave.
12/ Okay, that last one is from Trump v. Vance, which SCOTUS will hear next month.
More updates on the future of the rule of law then, and on upcoming episodes of the Trump Inc. Podcast.
