Doesn’t Matter Who Wins the K Race; We’re All the Same

[Tyrone Slothrop]

Originally Posted by LessinSF

But how would his refusal to testify, I.e. contempt of Congress, be enforced? I presume only the DOJ has that power, so ...

I think the typical route is a referral from Congress to the DOJ. But if it appeared that DOJ were representing the Executive Branch instead of the country, I imagine that Congressional lawyers would go directly to a judge and ask that the subject be held in contempt, and fined or held in custody until no longer in contempt.

[LessinSF]

Originally Posted by Tyrone Slothrop

I think the typical route is a referral from Congress to the DOJ. But if it appeared that DOJ were representing the Executive Branch instead of the country, I imagine that Congressional lawyers would go directly to a judge and ask that the subject be held in contempt, and fined or held in custody until no longer in contempt.

Serious question - does Congress have the right/ability to prosecute defiance from a co-equal branch of the government? I should think not. The remedy is Constituional, i.e. impeachment.

[Tyrone Slothrop]

Originally Posted by LessinSF

Serious question - does Congress have the right/ability to prosecute defiance from a co-equal branch of the government? I should think not. The remedy is Constituional, i.e. impeachment.

To "prosecute"? I think not. But a judge can put someone in contempt of court on his or her own initiative, so why not on request from Congress? Not sure why the only remedy should be constitutional.

There's a real problem here that DOJ is representing the Executive Branch, not the United States. If there is a good-faith reason to think that Congress has overstepped in issuing a subpoena, that's one thing, but I'm not seeing that with the subpoenas to Giuliani or State Department officials. The oath that DOJ lawyers is to defend the Constitution, not the Executive Branch.

[Adder]

Would help if we had an actual AG and not whatever the heck Barr thinks his job is.

[LessinSF]

Originally Posted by Tyrone Slothrop

To "prosecute"? I think not. But a judge can put someone in contempt of court on his or her own initiative, so why not on request from Congress? Not sure why the only remedy should be constitutional.

There's a real problem here that DOJ is representing the Executive Branch, not the United States. If there is a good-faith reason to think that Congress has overstepped in issuing a subpoena, that's one thing, but I'm not seeing that with the subpoenas to Giuliani or State Department officials. The oath that DOJ lawyers is to defend the Constitution, not the Executive Branch.

But the Executive Branch, President, DOJ, are all the same. The DOJ is the President's arm as the head of the execution, um, prosecution of law.

If the Prez says fuck you to Congress in the way it wants its laws enforcedw, Congress can't ask the Supreme Court to pick a side (well, they can ask, but). Congress' only Constitutional recourse is impeachment, which is a remedy the Supes are enabled to rule upon.

[Greedy,Greedy,Greedy]

Originally Posted by LessinSF

But the Executive Branch, President, DOJ, are all the same. The DOJ is the President's arm as the head of the execution, um, prosecution of law.

If the Prez says fuck you to Congress in the way it wants its laws enforcedw, Congress can't ask the Supreme Court to pick a side (well, they can ask, but). Congress' only Constitutional recourse is impeachment, which is a remedy the Supes are enabled to rule upon.

I don't think every agency of government is subservient to the President as part of the executive, simply because he can appoint their head with the advice and consent of the senate. Congress gets to make the rules governing those departments and set their budgets. The constitutional list of legislative powers is much greater than the list the President gets in Article II, and has fewer qualifications.

The authors of the constitution didn't go for the full strength executive, that was a conscious decision.

[Tyrone Slothrop]

Originally Posted by Greedy,Greedy,Greedy

I don't think every agency of government is subservient to the President as part of the executive, simply because he can appoint their head with the advice and consent of the senate. Congress gets to make the rules governing those departments and set their budgets. The constitutional list of legislative powers is much greater than the list the President gets in Article II, and has fewer qualifications.

The authors of the constitution didn't go for the full strength executive, that was a conscious decision.

I have been thinking about what kinds of reforms this Trump era is going to bring, and some of them might involve Congress attaching more strings to how funds are spent by the Executive.

[sebastian_dangerfield]

Originally Posted by Tyrone Slothrop

I have been thinking about what kinds of reforms this Trump era is going to bring, and some of them might involve Congress attaching more strings to how funds are spent by the Executive.

If what appears to be happening happens, that's going to be 2024, and the concept of "reform" will sound as strange and foreign as "functioning republic."

'Twas a nice run. But as Wyatt says to Billy near the end of Easy Rider, "we blew it... we blew it."

I have a couple chimneys and a lot backed up to a line of trees. Clear sights in all directions. As I told a friend in NYC in 2008, when the markets were crashing daily, "you can move in here... but you have to help me put gun turrets on the chimneys."

[Greedy,Greedy,Greedy]

Originally Posted by Tyrone Slothrop

I have been thinking about what kinds of reforms this Trump era is going to bring, and some of them might involve Congress attaching more strings to how funds are spent by the Executive.

The budgetary process has been badly broken for a while.

[Tyrone Slothrop]

Originally Posted by LessinSF

But the Executive Branch, President, DOJ, are all the same. The DOJ is the President's arm as the head of the execution, um, prosecution of law.

If the Prez says fuck you to Congress in the way it wants its laws enforcedw, Congress can't ask the Supreme Court to pick a side (well, they can ask, but). Congress' only Constitutional recourse is impeachment, which is a remedy the Supes are enabled to rule upon.

Two different pieces to my last post:

Courts have the inherent authority to address contempt of court. If a prosecutor, for example, gets on the wrong side of a judge, the judge can find him or her in contempt of court without needing one of the prosecutor's colleagues to file charges. I don't see a reason why Congress could not send lawyers to a federal court to ask the court to enforce a subpoena, or why the court couldn't hold the subject in contempt for a failure to comply.

The DOJ is a part of the Executive Branch, but every DOJ lawyer swore an oath to uphold the Constitution. Not to represent the President -- to uphold the Constitution. If the President wants to act in a way that has no basis in the law -- e.g., telling someone to ignore a valid subpoena -- I would think that DOJ has an obligation, at the very least, to test that position in the courts, rather than just deciding that the President gets to make up the law. Cf. Marbury v. Madison.

Also: Anyone at DOJ who is materially involved in the subject of the impeachment inquiry has a pretty clear ethical obligation to recuse him- or herself for proceedings to, e.g., enforce subpoenas. I haven't given it a ton of thought, but it would see to me to be an ethical problem for a lawyer to take orders from someone with a material interest in a proceeding (e.g., the President) about how to represent the country. Eliot Richardson resigned rather than fire Archibald Cox. Even if the President has executive authority direct the actions of employees in the executive branch, DOJ requires lawyers to be members of a State Bar, IIRC, which reflects their duty to faithfully execute the laws.

[sebastian_dangerfield]

Originally Posted by Tyrone Slothrop

Two different pieces to my last post:

Courts have the inherent authority to address contempt of court. If a prosecutor, for example, gets on the wrong side of a judge, the judge can find him or her in contempt of court without needing one of the prosecutor's colleagues to file charges. I don't see a reason why Congress could not send lawyers to a federal court to ask the court to enforce a subpoena, or why the court couldn't hold the subject in contempt for a failure to comply.

The DOJ is a part of the Executive Branch, but every DOJ lawyer swore an oath to uphold the Constitution. Not to represent the President -- to uphold the Constitution. If the President wants to act in a way that has no basis in the law -- e.g., telling someone to ignore a valid subpoena -- I would think that DOJ has an obligation, at the very least, to test that position in the courts, rather than just deciding that the President gets to make up the law. Cf. Marbury v. Madison.

Can't Barr be impeached?

[Tyrone Slothrop]

Originally Posted by sebastian_dangerfield

Can't Barr be impeached?

I added a paragraph to my post after you responded.

I'm looking for mechanisms short of impeachment, because things don't work well when the only escalation option is global thermonuclear war.