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Member since: Mon Apr 22, 2019, 03:26 PM
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A primer on Contempt of Congress enforcement

I wrote this in response to someone's question about the process, but thought it would be helpful to post it as an OP for anyone wanting a quick guide on the process Congress has available to it for enforcing a subpoena. https://www.democraticunderground.com/?com=view_post&forum=1002&pid=12115764

There are three methods Congress can use to enforce a Contempt of Congress citation in response to a witness' refusal to respond to a subpoena. All of them share specific requirements to get the ball rolling and then branch out into three different processes.

First, once the subpoena is issued, the witness or holder of documents has to definitively refuse to comply. That means more than just saying they won't, but to take some affirmative step to defy the subpoena, such as fail to appear or produce the documents by the deadline.

In McGahn's case, although he signaled yesterday he wouldn't show up, he didn't trigger anything until he actually didn't show up at the appointed time today. He has now defied the subpoena.

The Judiciary Committee now must make some effort to get him to comply. It might be by letter (the much-derided "strongly worded" letter is mocked around here, but it performs a legal necessity), conversations with him or his attorneys to try to negotiate compliance, or some other method. This is necessary because, down the road, before upholding a contempt citation, a court will require a showing that Congress made a good faith effort to secure compliance prior to issuing the citation.

If those efforts fail, the House Judiciary would hold an executive meeting - aka "markup" - to vote on a contempt recommendation. Markups usually require several days notice and usually, the minority can request a one-week extension.

At the markup, the Judiciary Committee members will discuss the measure and then vote. If a majority of Members agree, the contempt recommendation will be referred to the floor to be voted on by the full House.

When that happens, the measure will likely be referred to the Rules Committee which will set out the parameters for debate (how long each side has, etc.) and the vote. That usually doesn't take long and there may be ways to avoid having to do a rule on a contempt vote ( I haven't looked into that). The debate and vote are scheduled and then the full House votes. Simple majority carries.

If the measure passes, the Congress has now officially cited the witness for contempt. At that point, there are three different avenues that can be taken for enforcement. The first is already a nonstarter, so there's no point in even trying, unless they just want to make a point. That would be to refer the citation to the US Attorney for DC and ask them to enforce the citation with an arrest or prosecution. Since the US Attorney reports to the Attorney General, that ain't gonna happen. So let's move on.

The next possibility is for Congress to exercise its "inherent contempt" power, a rare tactic, which Congress hasn't done in nearly a century, but is being seriously considered. That could mean imposing a fine or instructing the Sergeant-at-Arms to arrest the subject and bring them before the body to answer the contempt charge. If they still don't comply, they would be held in custody until they do or until a judge orders them released. While it's possible to do this, it would be very difficult to pull this off logistically in many instances. It might be easier for a McGahn, who is a private citizen. But it's not clear how the Sergeant-at-Arms would go about arresting the Attorney General or other federal official under 24-7 protection of federal agents and whose homes and workplace are virtual fortresses. It will be interesting to see what happens if they go that route.

The third possibility is to go to court and ask it to enforce the citation. If the court rules that the subject must comply, failure to comply would result in a contempt of court citation, in addition to the contempt of Congress. In such cases, the court could enforce by, among other things ordering the US Marshals to arrest a subject.

The bottom line is that contempt of Congress citations aren't simple things and Nadler can't just snap his fingers and throw someone in jail because they didn't show up this morning..

I hope this is helpful. You can read more about the enforcement of Contempt of Congress citations here: https://fas.org/sgp/crs/misc/R45653.pdf and here: https://www.reuters.com/article/us-usa-trump-congress-subpoena-explainer/explainer-how-hard-hitting-are-u-s-congress-subpoenas-contempt-citations-idUSKCN1SC1YE
Posted by StarfishSaver | Tue May 21, 2019, 03:29 PM (23 replies)

The Houstonian Approach to Impeachment

In the 1930s, when segregation was the law of the land, sanctioned by the U.S. Supreme Court, and embedded into governmental, social, educational policy, Charles Hamilton Houston, the dean of Howard Law School and his student and protege, Thurgood Marshall began mapping out a strategy for overturning Plessy v. Ferguson, the case that gave us "separate but equal."

Their strategy was complex and would require a long series of incremental cases over many years that would gradually build the case for overturning Plessy. Many people in the legal and political community were harshly critical of this plan, attacking Houston, Marshall, and the NAACP lawyers, saying incrementalism was too slow and displayed weakness when they needed to show strength. They badgered them to go at Plessy head on. But Houston and Marshall knew that if they did, they would lose and Plessy would be forever cemented into American jurisprudence and life.

So, they tuned out the naysayers and stayed on the path, carefully and brilliantly laying the groundwork for an eventual assault on Plessy.

And it paid off when in 1954, the U.S. Supreme Court unanimously overturned Plessy, thanks to the long line of cases and extensive record laid out by Houston and Marshall over more than two decades. Unfortunately, Houston didn't live to see the decision, and many people have no idea who he is today. But there's a reason that Houston is known in many quarters as "The Man Who Killed Jim Crow." He's a national hero.

I look at impeachment the same way that Houston looked at the desegregation fight. While it may feel satisfying to launch an all out impeachment assault immediately, it's not the smart move. Pelosi and the other Democrats are following Houstonian process, carefully laying the groundwork so that their efforts actually have results beyond the initially satisfying but ultimately Pyrrhic short-term outcome. Of course, unlike in Brown, we're not looking at decades or years. We're looking at weeks or months. But in the scheme of things, those weeks and months are worth it in order to achieve the end we're all seeking.

You can read more about Houston here: http://newsreel.org/transcripts/roadtob.htm
Posted by StarfishSaver | Tue May 21, 2019, 12:59 PM (10 replies)

Anyone remember who testified in the Nixon impeachment hearings?

What impact do you think that testimony and the hearings had?
Posted by StarfishSaver | Tue May 21, 2019, 10:41 AM (28 replies)

It would be nice if Tom Steyer used his time and resources to attack and pressure Republicans

instead of going after Democrats.

There are so many things he could focus on, such as Mitch McConnell's abuse of power, Lindsey Graham's wholesale turnover of the Senate Judiciary Committee to the Trump Administration, Republicans who refuse to hold Trump accountable ...

And instead of running commercials demanding that DEMOCRATS do something, run commercials demanding that Republicans explain why they WON'T do anything - and call them out by name in their states and districts and hammer them over and over.

THAT would actually be more effective than running ads attacking Democrats. Well, it would be more effective if his actual goal is to hold Trump accountable and get him impeached and removed from office. If not, maybe he's doing exactly what he means to do.
Posted by StarfishSaver | Tue May 21, 2019, 09:19 AM (55 replies)

Procedural information/background on Judge Mehta's decision.

As people hear more about and discuss Judge Mehta's decision, I thought it would be helpful to explain, as plainly as possible, the procedural background of the case.

This case started back on February 27 when Michael Cohen testified before the House Oversight Committee. Alexandra Ocasio-Cortez asked a series of excellent questions about Donald Trump's finances. Among other things, she elicited testimony from Cohen stating that Trump inflated or under-reported his income, depending upon the circumstances. She asked him if his tax returns would be helpful in better understanding how he may have done this. Cohen said yes.

In March, Chairman Cummings contacted Trump's accountants and requested the tax records and financial statements. The accountants responded by saying that various state and federal regulations and codes of conduct prohibited them from turning over the records voluntarily (which was true). A few weeks later, after following required House committee procedures for the issuance of subpoenas, Cummings issued a subpoena to the accountants.

A week later, Trump filed suit in federal district court challenging the subpoena and asking for an injunction preventing the release of his tax records to the Oversight Committee. An injunction is an equitable remedy in which a court "enjoins" a party from doing something for a period of time in order that the requesting party not be damaged in the meantime. The requesting party must prove that they have a likelihood of winning the case on the merits and that they would be irreparably harmed if the action were to take place. This is different than a trial on the merits in which the judge decides which party should prevail. An injunction simply maintains the "status quo" while the case is being decided.

In this case, Trump was both asking the court to decide whether the House Oversight Committee had the power to order his accountants to turn over his tax records AND that the court enjoin - or halt- his accountants from turning over the documents until the underlying decision was made.

The Court ordered a hearing on the injunction and merged it with a "trial on the merits" in which it would also hear arguments on the underlying case - whether the Oversight Committee had a right to Trump's tax records. The hearing took place last week.

Today, the court ruled that the Oversight Committee has the right to obtain the tax records. It also denied Trump's motion for a stay pending appeal - a stay is similar to an injunction and would prevent the accountants from turning over the records until Trump has a chance to appeal and the appeal is decided. Judge Mehta said no stay. The records have to be turned over within seven days.

The court is well aware that this case involves records concerning the private and business
affairs of the President of the United States. But on the question of whether to grant a stay pending
appeal, the President is subject to the same legal standard as any other litigant that does not prevail.
Plaintiffs have not raised a “serious legal question[] going to the merits.” Population Inst., 797
F.2d at 1078. And, the balance of equities and the public interest weigh heavily in favor of denying
relief. The risk of irreparable harm does not outweigh these other factors. The court, therefore,
will not stay the return date of the subpoena beyond the seven days agreed upon by the parties.

It is likely that Trump will appeal immediately and ask the appellate court for a stay. But Judge Mehta's decision was so well-reasoned and solidly based on precedent, the court would have to twist itself into knots to issue a stay (not that they won't ...)

If you have time, I urge you to read the opinion. It's long, but extremely well-written and easy to understand. Judge Mehta did this right. https://int.nyt.com/data/documenthelper/999-mazars-usa-decision/f3bc28123dd74a1843ef/optimized/full.pdf#page=1

I hope this is helpful!
Posted by StarfishSaver | Mon May 20, 2019, 08:16 PM (12 replies)

BFD about Judge Mehta's decision: it's directed to Trump's accounting firm, not his administration m

The judge ordered Trump's accounting firm to turn over the tax records, not Mnuchin are any other of Trump's minions.

This makes it a whole different ball game. The accountants aren't likely to risk find in jail over a client, even if it's the president. And Trump's usual tactic of threatening a lawsuit won't work because he has no legal standing to object to his accountant's following a court order.

As I said, this is a BFD.
Posted by StarfishSaver | Mon May 20, 2019, 06:34 PM (8 replies)

Judge Mehta didn't need an impeachment inquiry to pull out his can of Whupass

Posted by StarfishSaver | Mon May 20, 2019, 05:23 PM (14 replies)

"Stand Your Ground" works when white men kill our born black babies, so why not?

Posted by StarfishSaver | Sun May 19, 2019, 12:13 PM (1 replies)

A powerful Op-Ed to white friends who "tolerate and give power to a belligerent, bigoted tyrant"

This speaks for me. All of it.

Opinion: Athletes, be like Pee Wee Reese. Stand against racial division and for unity

Our cultural history is graced with goosebumps-inducing stories of white athletes supporting their black teammates in the face of racial cruelty. Some white players refused en masse to stay in segregated hotels or patronize "whites only" restaurants that refused service to their black colleagues. Some, like Pee Wee Reese, showed quiet but powerful support, sometimes just by standing next to their teammate and eloquently staring down and shaming those who tried to demean them. Sadly, last week we saw white players on the Boston Red Sox take a different approach: They all decided to go to the White House to stand and laugh and celebrate with the man whose racial insults, stoking of divisions, and immoral neglect of the American citizens of Puerto Rico are so offensive to their black and Hispanic teammates that they could not bring themselves to participate. It is disgraceful that, when faced with the choice, not one of these white player had the courage or decency to skip that spectacle, if only to show solidarity with their teammates who felt unwelcome at the White House.

But while this divide we witnessed was higher profile than most, it is not uncommon in the new world into which we’ve descended. Many minorities in today’s America feel similar feelings of isolation and abandonment at the hands of our white friends and colleagues who’ve decided to cast their lot with a racial demagogue, regardless of what we think or say or how passionately we’ve begged them not to.
Lately, some of my friends have shocked me into a sense of betrayal. I now avoid political discussions with them, not because we might disagree, but because I fear they’ll once again remind me that they don’t truly share the principles they’ve always espoused. And knowing that they’ll again show me that they believe and are consciously and willingly doing things to actively undermine these principles fills me with dread, frustration, and sadness.

I stay away from these discussions because I am too tempted to risk rupturing our increasingly fragile friendships by speaking the painful truth to them: "How can you look at me, a black woman, your friend, and tell me that, knowing that this man insults, demeans and rejects me and people like me at every opportunity, demonizes immigrants, encourages, embraces and is revered by racists and Nazis, treats women like objects, lies so consistently that we can’t keep up, spouts off like a bullying, ignorant child (in language and tone that should embarrass and disgust any decent person), is trampling the Constitution in our faces, is giving lifetime appointments to racist judges committed to undoing every principle you claim to stand for, and after seeing everything that he has shown us in the last two years, you not only don’t regret putting him in office, you still support him?"

You may not realize it, but what you’re really showing me is that some things – be it your financial interests or something else – are more important to you than my well-being, the safety and security of my community, and the principles you supposedly hold dear. You’re tacitly admitting that your expressed commitment to equality, justice and decency has limits and can be balanced out against and outweighed by other interests that you deem more important to the point that you will tolerate and give power to a belligerent, bigoted tyrant in order to attain them.

FULL OP ED at https://www.cincinnati.com/story/opinion/2019/05/17/opinion-athletes-like-pee-wee-reese-stand-against-racial-division-and-unity/3697881002/

Posted by StarfishSaver | Sat May 18, 2019, 12:22 PM (5 replies)

Some perspective on Nixon impeachment hearings

The Nixon impeachment hearings have often been brought up as an example of how the current Democratic House leadership should proceed with impeaching Trump. However, a lot of the discussion is based on incorrect information about the timing and nature of the hearings, so I thought it would be helpful to lay out what happened back in 1973 and 1974.

June 17, 1972 Watergate break-in

May 17, 1973 Senate Select Committee on Watergate hearings opened

May 19, 1973 Special Prosecutor Archibald Cox appointed

June 3-6, 1973 John Dean testifies before the Watergate Committee

June 13, 1973 Alexander Butterfield testimony reveals existence of White House taping system

July 23, 1973
Nixon refuses to turn over tapes to the Watergate Committee or Special Prosecutor

October 10, 1973 Vice President Spiro Agnew is convicted of bribery and resigns

October 20, 1973 Nixon orders Attorney General Eliot Richardson to fire the Special Prosecutor. He refuses and resigns. When the Deputy Attorney General also refuses, Nixon fires him. Solicitor General Robert Bork fires the Special Prosecutor (Saturday Night Massacre)

February 6, 1974 By a vote of 407-6, the House of Representatives authorizes the House Judiciary Committee to open an impeachment inquiry

May 9, 1974 House Judiciary Committee opens impeachment hearings. The first few moments of the hearing are open to the public. Then the chairman closed the hearings to the public. No further open hearings were conducted until July

July 24, 1974 The US Supreme Court unanimously rules that Nixon must turn over the WH tapes to the Special Prosecutor in the trial of the Watergate burglars

July 27-30, 1974 The House Judiciary Committee votes to recommend Articles of Impeachment to the full House.

August 9, 1974 Nixon resigns

It's interesting to see that an impeachment inquiry wasn't authorized until eight months after John Dean's and Alex Butterfield's explosive testimony and four months after the Saturday Night Massacre, the first impeachment hearings didn't occur until three months after the House authorization, and thereafter, the hearings were conducted almost entirely in secret. I assume - but don't know for sure - that the long gap between authorization of the inquiry and the opening of the hearings was for the purpose of the House Judiciary Committee preparing for the hearings. (One can only imagine how people would react today if this House authorized hearings and they didn't begin until several months afterward!) But it's important to know that impeachment in Watergate didn't move as quickly as (or in the sequence) some people now assume.

I hope this is helpful.

Posted by StarfishSaver | Sat May 18, 2019, 11:22 AM (13 replies)
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