WASHINGTON — A federal appeals court ruled on Friday that Congress could not sue to enforce its subpoenas of executive branch officials, handing a major victory to President Trump and dealing a severe blow to the power of Congress to conduct oversight.
In a ruling that could have far-reaching consequences for executive branch secrecy powers long after Mr. Trump leaves office, a divided three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit dismissed a lawsuit brought by the House Judiciary Committee against Mr. Trump’s former White House counsel, Donald F. McGahn II.
On Mr. Trump’s instructions, Mr. McGahn defied a House subpoena seeking to force him to testify about Mr. Trump’s efforts to obstruct the Russia investigation. The House sued him, seeking a judicial order that he show up to testify, and won in district court in November.
But two of the three appeals court judges ruled on Friday that the Constitution gave the House no standing to file any such lawsuit in what they characterized as a political dispute with the executive branch. If their decision stands, its reasoning would shut the door to judicial recourse whenever a president directs a subordinate not to cooperate with congressional oversight investigations.
“The committee now seeks to invoke this court’s jurisdiction to enforce its subpoena,” wrote Judge Thomas B. Griffith. The Justice Department, “on behalf of McGahn, responds that Article III of the Constitution forbids federal courts from resolving this kind of interbranch information dispute.”
“We agree and dismiss this case,” he wrote.
Judge Griffith said that Congress had political tools to induce presidents to negotiate and compromise in disputes over oversight demands for information about the government — like withholding appropriations or derailing the president’s legislative agenda — and that courts should not be involved.
“The absence of a judicial remedy doesn’t render Congress powerless,” he wrote, adding, “Congress can wield these political weapons without dragging judges into the fray.”
But the dissenting judge, Judith W. Rogers, warned that the ruling would embolden presidents to flout legislative oversight and deprive lawmakers of a powerful tool to obtain information they sought, undermining core prerogatives of Congress enshrined in the Constitution.
“The court removes any incentive for the executive branch to engage in the negotiation process seeking accommodation, all but assures future presidential stonewalling of Congress, and further impairs the House’s ability to perform its constitutional duties,” she wrote.
The ruling deflates a primary argument used by Mr. Trump’s defense team to question the legitimacy of the impeachment process. His lawyers insisted that the House should have pursued all of its legal avenues to secure testimony rather than charging the president with obstruction of Congress. But even as the impeachment trial unfolded, the Justice Department was arguing in the McGahn case that such lawsuits were invalid and, ultimately, the court adopted that reasoning.
If it stands, the ruling could halt a growing trend of Congress resorting to lawsuits to enforce its oversight powers in a polarized era when previous norms of bipartisan cooperation have broken down. It was once vanishingly rare for Congress and the executive branch to square off in court, but it has become increasingly common — especially in the past year, after Mr. Trump vowed to stonewall “all” oversight subpoenas by House Democrats.
Brianna Herlihy, a spokeswoman for the Justice Department, which was defending Mr. McGahn in court, said the Trump administration was “extremely pleased” with the ruling, calling it historic.
“Suits like this one are without precedent in our nation’s history and are inconsistent with the Constitution’s design,” she said. “The D.C. Circuit’s cogent opinion affirms this fundamental principle.”
Spokesmen for Speaker Nancy Pelosi of California and Representative Jerrold Nadler of New York, the chairman of the House Judiciary Committee, had no immediate comment. But it seemed likely that the House would appeal to the full appeals court to rehear the case.
Both judges in the majority were appointed by Republican presidents — Judge Griffith was appointed by George W. Bush and Judge Karen L. Henderson, who joined him in the decision, was appointed by George Bush. Judge Rogers was appointed by President Bill Clinton, a Democrat.
The ruling was the latest in a string of developments that have eroded Congress’s power to subpoena information from the executive branch. Originally, Congress was understood to have “inherent contempt” power to arrest recalcitrant witnesses, but that is now seen as unrealistic.
Under administrations of both parties, the Justice Department has refrained from charging executive branch officials with criminal contempt of Congress for refusing to comply with a subpoena when the president has invoked executive privilege, even when Congress disputes whether the invocation was valid.
Against that backdrop, the prospect of a civil lawsuit asking a judge to order an executive branch official to comply with a subpoena has been the rare remaining tool to incentivize presidents to negotiate with Congress in an information dispute and try to reach an accommodation.
The case against Mr. McGahn was only the first of several brought last year against the executive branch by House Democrats seeking to enforce their subpoenas. Others included efforts to obtain Mr. Trump’s tax returns and internal documents showing why his administration tried to include a citizenship question on the 2020 census.
Mr. Trump had instructed Mr. McGahn not to show up, declaring that his former legal aide was “absolutely immune” from being compelled to testify about his duties, meaning he had no obligation to appear.
In a twist, Judge Henderson wrote in a concurring opinion that she disagreed with that argument. Along with Judge Rogers’s rejection of it, that meant there was a shadow majority against the absolute-immunity theory. But because Judge Henderson joined Judge Griffith in asserting that Congress could not file lawsuits to enforce its subpoenas in the first place, it did not matter.
A Federal District Court judge rejected the absolute immunity theory in a 2008 case involving a congressional investigation into the Bush administration’s firings of United States attorneys, one of the first lawsuits by Congress to enforce a subpoena for executive branch information. The case was resolved, however, without any definitive appeals court ruling.
In 2012, there was another subpoena lawsuit brought by House Republicans related to the botched gun-trafficking case known as Operation Fast and Furious. That case involved documents, not testimony, and it was also resolved without any definitive appeals court ruling on whether the House had a right to bring it in the first place.
Late last year, after House Democrats sued Mr. McGahn, another lower-court judge rejected the claims that the House had no standing to sue and that a former top White House aide is absolutely immune, ordering him to comply with the subpoena.
But in throwing out the case, Judge Griffith worried that the judiciary was getting increasingly dragged into sticky political disputes. He pointed out that if Mr. McGahn did show up but Mr. Trump then invoked executive privilege to block him from answering specific questions, the same matter would end up right back in court.
Judge Rogers, however, noted that at least since the Watergate scandal nearly 50 years ago, the threat of a potential lawsuit has hung over such negotiations. Removing that threat, she argued, would thus disrupt — not reaffirm — the process for resolving information disputes.
“Future presidents may direct wide-scale noncompliance with lawful congressional inquiries, secure in the knowledge that Congress can do little to enforce a subpoena dramatically undermining its ability to fulfill its constitutional obligations now and going forward,” she warned.
Cabinet slashes budgets to pay for 6 new ministries, including ‘alternate PM’ – The Times of Israel
The cabinet on Sunday approved widespread fiscal reforms that will cut the budgets of most ministries in order to fund the establishment of six new ministries, including the office of the “alternate prime minister,” in a series of controversial decisions.
A unity coalition deal between Likud’s Benjamin Netanyahu and Blue and White’s Benny Gantz ended over a year of political deadlock when the most minister-rich government in Israel’s history was sworn in earlier this month. New ministerial positions were created to accommodate the cabinet’s 33 ministers, who number over a quarter of the Knesset’s 120 lawmakers.
The price tag for the overhead costs of the new government has been estimated as high as a billion shekels ($285 million) over its three-year span. There have been widespread accusations that the government is overlarge and costly at a time when the economy is being ravaged by the COVID-19 pandemic.
Among the new offices created Sunday was the Alternate Prime Minister’s Office, which will be held by Defense Minister Gantz for 18 months and then be transferred to Netanyahu as part of a power-sharing deal designed to allow him to keep the prime ministerial title even after vacating the post. Unlike other ministers, a prime minister can remain in his post even after he is indicted on criminal charges.
Other offices are Ze’ev Elkin’s Water Resources and Higher Education ministries; Orly Levy-Abekasis’s Ministry of Community Empowerment; David Amsalem’s Cyber Ministry; and Tzipi Hotovely and Tzachi Hanegbi’s Settlements Ministry.
Gantz — who is currently defense minister, in addition to the new post of alternate premier — is set to take over as prime minister in 18 months under the coalition deal, at which point Netanyahu will become alternate prime minister.
As the Alternate Prime Minister’s Office was approved, Netanyahu on Sunday denied reports that the alternate prime minister would also be granted an alternate prime minister’s residence. “It’s not true. It didn’t come up and it won’t,” he said.
In order to create the new posts, ministers approved a government decision that will see a 1.5% cut to the budgets of all government offices, specifically at the upper personnel level. The move will slash 300 posts from the various offices to free up some NIS 100 million ($28.5 million).
Foreign Minister Gabi Ashkenazi opposed the budget cuts to foreign service, whereupon the cuts to his ministry were reduced from NIS 11.5 million ($3.2 million) to NIS 4.8 million ($1.3 million), the Walla news site reported.
On the 22-item agenda, the cabinet was also voting on filling the Ministerial Committee for Legislation, led by Blue and White’s Avi Nissenkorn, and other ministerial panels; appointing directors general of the defense and economy ministries; and giving the green light to new Finance Minister Israel Katz’s program to encourage employment amid the pandemic.
In a Saturday night address, Katz presented his new Finance Ministry plan aimed at encouraging employers to take back employees placed on unpaid leave during the height of the pandemic in March. For every employee called back, places of business will receive a grant of NIS 7,500 ($2,141) starting on June 1, according to the plan. An additional grant of some NIS 3,500 ($1,000) will be handed out to employers for employees called back in May. Katz said some NIS 500 million ($142 million) have been allocated for businesses that would put employees back to work.
Economy Minister Amir Peretz opposed the treasury proposal during the meeting, arguing that it rewards employers who dropped their workers while harming those who kept their employees on the payroll even at a loss, according to the Globes business daily.
Katz retorted: “There is an alternate prime minister. There is no alternate finance minister. I am the finance minister and I will lead the implementation of the government decisions, which I proposed, and which were accepted by an overwhelming majority,” the Ynet news site reported.
Sunday’s cabinet meeting also saw Housing Minister Yaakov Litzman and Interior Minister Aryeh Deri receive building and planning powers that were previously under the treasury’s purview, while the Health Ministry was granted additional powers to combat the coronavirus.
The meeting on Sunday was held in the Foreign Ministry’s auditorium as the regular cabinet meeting rooms were not large enough to accommodate all the ministers while maintaining social distancing, according to reports.
Opposition chairman Yair Lapid issued a statement blasting the government after ministers approved funding for the newly formed offices created by the Gantz-Netanyahu coalition deal.
“The government handed half a billion shekels to itself today. Not for the self-employed, not for the unemployed, not for small businesses, but for itself,” said Lapid.
“For redundant offices like the Water Resources Ministry, the nonexistent Community Empowerment Ministry and for deputy ministers that no one needs. Detached lawmakers, we’ve had enough of you.”
Separately, last Wednesday, a bill allowing ministers to give up their positions as Knesset members in order to enable a different member of their party slate to take their spot in parliament passed its preliminary Knesset plenary reading. The so-called Norwegian Law — which still requires three more votes to become law — would allow any MK who is appointed to a cabinet post to resign temporarily from the Knesset, thereby permitting the next candidate on the party’s list to enter parliament in his or her stead.
The opposition has blasted the bill, and the coalition’s rush to pass it, as a way of pushing more people into sweetheart jobs on the taxpayers’ dime.
Tapper: Some of Trump’s allies think he’s not up to the task – CNN
In Days of Discord, President Trump Fans the Flames – The New York Times
WASHINGTON — With a nation on edge, ravaged by disease, hammered by economic collapse, divided over lockdowns and even face masks and now convulsed once again by race, President Trump’s first instinct has been to look for someone to fight.
Over the last week, America reeled from 100,000 pandemic deaths, 40 million people out of work and cities in flames over a brutal police killing of a subdued black man. But Mr. Trump was on the attack against China, the World Health Organization, Big Tech, former President Barack Obama, a cable television host and the mayor of a riot-torn city.
While other presidents seek to cool the situation in tinderbox moments like this, Mr. Trump plays with matches. He roars into any melee he finds, encouraging street uprisings against public health measures advanced by his own government, hurling made-up murder charges against a critic, accusing his predecessor of unspecified crimes, vowing to crack down on a social media company that angered him and then seemingly threatening to meet violence with violence in Minneapolis.
As several cities erupted in street protests after the killing of George Floyd, some of them resulting in clashes with the police, Mr. Trump made no appeal for calm. Instead in a series of tweets and comments to reporters on Saturday, he blamed the unrest on Democrats, called on “Liberal Governors and Mayors” to get “MUCH tougher” on the crowds, threatened to intervene with “the unlimited power of our Military” and even suggested his own supporters mount a counterdemonstration.
The turmoil came right to Mr. Trump’s doorstep for the second night in a row on Saturday as hundreds of people protesting Mr. Floyd’s death and the president’s response surged in streets near the White House. While most were peaceful, chanting “black lives matter” and “no peace, no justice,” some spray painted scatological advice for Mr. Trump, ignited small fires, set off firecrackers and threw bricks, bottles and fruit at Secret Service and United States Park Police officers, who responded with pepper spray.
The police cordoned off several blocks around the Executive Mansion as a phalanx of camouflage-wearing National Guard troops marched across nearby Lafayette Square. A man strode through the streets yelling, “Time for a revolution!” The image of the White House surrounded by police in helmets and riot gear behind plastic shields fueled the sense of a nation torn apart.
Mr. Trump praised the Secret Service for being “very cool” and “very professional” but assailed the Democratic mayor of Washington for not providing city police officers to help on Friday night, which she denied. While governors and mayors have urged restraint, Mr. Trump seemed more intent on taunting the protesters, bragging about the violence that would have met them had they tried to get onto White House grounds.
“Big crowd, professionally organized, but nobody came close to breaching the fence,” the president wrote on Twitter on Saturday morning. “If they had they would have been greeted with the most vicious dogs, and most ominous weapons, I have ever seen. That’s when people would have been really badly hurt, at least. Many Secret Service agents just waiting for action.”
His suggestion that his own supporters should come to the White House on Saturday foreshadowed the possibility of a clash outside his own doors. “Tonight, I understand, is MAGA NIGHT AT THE WHITE HOUSE???” he wrote on Twitter, using the acronym for his first campaign slogan, “Make America Great Again.”
Asked about the tweet later, he denied encouraging violence by his supporters. “They love African-American people,” he said. “They love black people. MAGA loves the black people.” By evening, however, Mr. Trump’s supporters were not in evidence among the crowds at the White House.
Mayor Muriel E. Bowser of Washington responded sharply on Saturday morning, saying her police department will protect anyone in Washington, including the president, and by Saturday evening her officers were out in force around the White House.
But she called the president a source of division. “While he hides behind his fence afraid/alone, I stand w/ people peacefully exercising their First Amendment Right after the murder of #GeorgeFloyd & hundreds of years of institutional racism,” she wrote. “There are no vicious dogs & ominous weapons. There is just a scared man. Afraid/alone …”
After his morning barrage, Mr. Trump tried to recalibrate later in the day, devoting the opening of a speech at the Kennedy Space Center following the SpaceX rocket launch to the unrest in the streets and clearly trying to temper his bellicose tone.
“I understand the pain that people are feeling,” he said. “We support the right of peaceful protesters and we hear their pleas. But what we are now seeing on the streets of our cities has nothing to do with justice or peace. The memory of George Floyd is being dishonored by rioters, looters and anarchists.”
The days of discord have put the president’s leadership style on vivid display. From the start of his ascension to power, Mr. Trump has presented himself as someone who seeks conflict, not conciliation, a fighter, not a peacemaker. That appeals to a substantial portion of the public that sees in him a president willing to take on an entrenched and entitled establishment.
But the confluence of perilous health, economic and now racial crises has tested his approach and left him struggling to find his footing just months before an election in which polls currently show him behind.
“The president seems more out-of-touch and detached from the difficult reality the country is living than ever before,” said Carlos Curbelo, a former Republican congressman from Florida who has been critical of Mr. Trump. “At a moment when America desperately needs healing, the president is focused on petty personal battles with his perceived adversaries.”
Such a moment would challenge any president, of course. It has been a year of national trauma that started out feeling like another 1998 with impeachment, then another 1918 with a killer pandemic combined with another 1929 given the shattering economic fallout. Now add to that another 1968, a year of deep social unrest.
It is fair to say that 2020 has turned out to be a year that has frayed the fabric of American society with an accumulation of anguish that has whipsawed the country and its people. But in some ways, Mr. Trump has become a totem for the nation’s polarization rather than a mender of it.
“I am daily thinking about why and how a society unravels and what we can do to stop the process,” said Timothy Naftali, a presidential historian at New York University. “The calamity these days is about more than Trump. He is just the malicious con man who lives to exploit our vulnerabilities.”
As the nation has confronted a coronavirus pandemic at the same time as the greatest economic catastrophe since the Great Depression, whatever unified resolve that existed at the beginning of the twin crises quickly evaporated into yet another cultural clash. And the president has made everything into just another partisan dispute rather than a source of consensus, from when and how to reopen to whether to wear a mask in public.
Mr. Trump led no national mourning as the death toll from the coronavirus passed 100,000 beyond lowering the flags at the White House, posting a single tweet and offering a passing comment on camera only when asked about it. Rather than seek agreement on the best and safest way to restore daily life, he threatened to “override” governors who prevented places of worship from resuming crowded services.
“Crisis leadership demands much more from the White House than irresponsible threats on social media,” said Meena Bose, director of the Peter S. Kalikow Center for the Study of the American Presidency at Hofstra University.
Mr. Trump’s initial response to the rioting in Minneapolis, where a police officer has been charged with murder after kneeling on Mr. Floyd’s neck for nearly nine minutes as he cried out that he could not breathe, underscored the president’s most instinctive response to national challenges. Threatening to send in troops, he wrote early Friday morning that “when the looting starts, the shooting starts.”
Only after a cascade of criticism did he try to walk it back, posting a new tweet 13 hours later, suggesting that all he had meant was that “looting leads to shooting” by people in the street.
“I don’t want this to happen, and that’s what the expression put out last night means,” he said, a reformulation that convinced few if any of his critics.
Even some of Mr. Trump’s usual allies were distressed at the original shooting tweet. Geraldo Rivera, the television and radio host who often spends time with Mr. Trump at the president’s Mar-a-Lago club in Florida, decried “the recklessness” of that message and called on the president “to self-censor himself.”
“Come on, what is this, sixth grade?” Mr. Rivera said on Fox News. “You don’t put gasoline on the fire. That’s not calming anybody.” He added: “All he does is diminish himself.”
But many of the president’s defenders rejected the idea that he had mishandled the crises, pressing the argument that Democrats and the news media were to blame for the turmoil in the streets, which spread from Minneapolis to New York, Atlanta, Washington, Louisville, Portland and other cities.
“Keep track of cities where hundreds of millions of dollars in property damage and serious injuries and death will take place,” Rudolph W. Giuliani, the former New York mayor who has served as Mr. Trump’s personal lawyer, wrote on Twitter on Friday night. “All Democrat dominated cities with criminal friendly policies. This is the future if you elect Democrats.”
Bernard B. Kerik, the former New York City police commissioner who was pardoned by Mr. Trump for tax fraud earlier this year, amplified the point on Twitter. “It should be no surprise that every one of these cities that the anarchist have taken over, are the same cities run by leftist Democrats with the highest violence, murder and poverty rates,” he wrote on Twitter. “They can’t handle their cities normally, so how are they going to deal with this?”
Mr. Trump, who this past week retweeted a video of a supporter saying that “the only good Democrat is a dead Democrat” (though the supporter insisted he meant that in a political sense), picked up the theme on Saturday.
With crowds visible from his upstairs windows, Mr. Trump reached for his phone and again assailed the “Democrat Mayor” of Minneapolis for not responding more vigorously and called on New York to unleash its police against crowds. “Let New York’s Finest be New York’s Finest,” he wrote. “There is nobody better, but they must be allowed to do their job!”
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