Wednesday, June 14, 2017

Contempt For Congress

When witnesses are called before a Congressional committee to testify under oath, they are required to answer the questions put to them unless they can assert a legal basis for refusing to do so.  Such valid bases include the Fifth Amendment privilege against self-incrimination and the attorney-client privilege.  Witnesses can also state that their testimony involves classified information or information that implicates national security, and request that such testimony be provided in a closed session. 

The president can invoke executive privilege to prevent members of his administration from testifying about matters involving national security.  Executive privilege has also been used to shield the  “deliberative process” which is meant to “encourage open, frank discussions on matters of policy between subordinates and superiors.”  But claims of executive privilege can be overcome by a compelling government interest in disclosure and, as the Supreme Court held in U.S. v. Nixon, it does not apply to information related to criminal activity.  Further, like all other testimonial privileges, it can be waived if the holder of the privilege, e.g., the tweeter in chief, opens the door. 

Attorney General Jeff Sessions appeared before the Senate Intelligence Committee and refused to answer questions about his communications with Trump, including those involving the firing of former FBI Director James Comey.  He referred to some vague DOJ policy that prevented him from discussing his communications with the president but was unable to cite to any specific written policy.  When Sen. Kamala Harris (D-Bad Ass) tried to pin him down on the existence of this policy, he claimed he was too nervous to answer the question and had to be bailed out by John McCain (R-Old White Man), who scolded Harris for being too tough on his friend.

Sessions also relied on an indefensible interpretation of executive privilege.  Without invoking the privilege directly, which only the president can do, he refused to answer questions by claiming it would not be appropriate to do so because the president might want to invoke executive privilege at some point in the future.  Sen. Martin Heinrich (D-N.M.) made plain that Sessions was impeding a Congressional inquiry without a legal basis:
So my understanding of the legal standard is either you answer the question, that's the best outcome. You say 'This is classified, can't answer it here, I'll answer it in closed session,' that's bucket number two. Bucket number three is to say I'm invoking executive privilege. There is not appropriateness bucket. That is not a legal standard.
Previously, Director of National Intelligence Daniel Coats and National Security Agency Director Adm. Michael Rogers refused to answer questions about the extent of Trump's meddling with the investigation into the campaign's involvement with Russia. Rogers said he would not answer questions because "I feel it is inappropriate." Coats also said he did not feel it was "appropriate" to answer questions but conceded he had no legal basis for his refusal.  To paraphrase Senator Heinrich, there is no fucking appropriateness bucket.

The Senate Intelligence Committee has been tasked with investigating Russia's interference with a presidential election and the Trump campaign's role in that interference.  These three witnesses are critical to that investigation but have undermined any meaningful inquiry not only by their stonewalling but by giving other potential witnesses a fairly easy roadmap for doing the same. 

The only way for Congress to stop this intransigence from Trump loyalists is to require them to answer questions or be held in contempt of Congress.  Penalties for contempt range from a fine of up to $1000 and imprisonment for not less then one month or more than a year. 

Generally how this works is that the Committee would draft a contempt resolution, and would vote to have that resolution go to the full Senate.  If the Senate then voted in favor of contempt, the matter would be referred to the U.S. Attorney for D.C., who would refer the matter to a grand jury. 

If you haven't already guessed, the problem is that a majority is required for both a resolution to get out of Committee and for a finding of contempt by the Senate.  And, of course, the Republicans are in the majority and have no interest in citing for contempt anyone protecting their leader.  They are more likely to give them the Congressional Medal of Honor.  (Of course, this raises the stakes for the Special Counsel's investigation and explains why Republicans are trashing Special Counsel Mueller's credibility and Trump is threatening to fire him.)

But this doesn't mean Democrats should just go along as if any of this is ok. Russia interfered with our election and the beneficiary of that interference has not only shown no concern about this body blow to our democracy, he is trying to prevent any inquiry into how it happened and how to stop it from happening again.

We need to demand that Democrats draft contempt resolutions for recalcitrant witnesses and force Republicans to vote on them.  And, more broadly, we need to demand that Democrats eschew Senatorial courtesy and throw sand in the gears of the Senate -- using every technicality and procedural rule from objecting to unanimous consent requests to forcing roll call votes on every matter. They must slow down all Senate business to a crawl until Republicans are forced to show some modicum of concern for our Country and act responsibly by forcing witnesses to answer questions.

What becomes clearer every day is that there is no daylight between Trump and the Republican Party that is enabling him.  They are both utterly contemptible.  Democrats ignore this at their -- and our -- peril.


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