RSN: Charles Pierce | Trump's Lawyers Have Gone to Some Dark and Unexpected Places to Keep Don McGahn From Testifying

30 April 20

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Charles Pierce | Trump's Lawyers Have Gone to Some Dark and Unexpected Places to Keep Don McGahn From Testifying

Charles Pierce, Esquire
Pierce writes: "The Democrats in the House of Representatives would like very much to get McGahn under oath to talk about the president*'s efforts to bury the story of Russian ratfcking."

Justice Department attorneys told a federal court that only the president* can enforce a congressional subpoena.

ack in the Before Times, folks were intent on finding out how thoroughly the Volga Bagmen had ratfcked the 2016 election on behalf of the president*’s campaign. (Answer: a metric fckton.) Critical to these inquiries was Don McGahn, who used to be the White House counsel. The Democrats in the House of Representatives would like very much to get McGahn under oath to talk about the president*’s efforts to bury the story of Russian ratfcking. The White House, through its house counsels in the Department of Justice, has been fighting those subpoenas. 

On Tuesday, the matter came before an unusual en banc hearing of the District of Columbia’s federal circuit appeals court. The smart money says that the House will prevail and that the White House will then appeal that ruling to the Supreme Court. But the arguments on Tuesday went into some dark and unexpected places. From Politico:

A lawyer representing the Trump administration offered a sweeping argument that Congress has no authority to take legal action to enforce its subpoenas because that power lies solely with the president. Rather, lawmakers must rely on a set of political tools — from choking off funding to blocking presidential nominations to impeachment — to bend a stonewalling president to the Congressional will.

The DOJ is arguing here that the Congress can draft subpoenas against the administration*. It can serve subpoenas on the administration*. But only the president* can enforce Congressional subpoenas, including those directed at himself. The law, indeed, can be an ass, but it doesn’t often bray, kick, and bite a kid in the front row of the Big Top. This argument prompted some serious musings from the bench, and some welcome evidence that these judges recognize what a sui generis ball of sleaze this administration* is.

“How is Congress to conduct its constitutional duty of oversight in the face of the type of utter disregard this administration has shown for that oversight?” the George W. Bush appointee asked Mooppan. “Hasn’t this administration eschewed the traditional norms of compromise and negotiations that you rely on in your arguments so heavily?” The judge who joined with Griffith in that opinion, fellow Bush appointee Karen Henderson, was on the call Tuesday but passed up the chance to question the lawyers or discuss her own views on the disputes. ...

Most of the nine judges who joined in the rare en banc session Tuesday seemed receptive to the House’s concerns, with one judge musing the Trump administration was so intent on sidelining the courts that the public would be left only with "revolution" as an alternative.

Have I mentioned recently that electing a reality-show host whose business career was built on grift was not a good idea?

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Volunteers disinfecting the Qintai Grand Theater in Wuhan, the Chinese city where the Coronavirus outbreak began. (photo: Aly Song/Reuters)

ALSO SEE: Intelligence Community: COVID-19 'Not Man Made
or Genetically Modified'

Trump Officials Are Said to Press Spies to Link Virus and Wuhan Labs
Mark Mazzetti, Julian E. Barnes, Edward Wong and Adam Goldman, The New York Times
Excerpt: "Senior Trump administration officials have pushed American spy agencies to hunt for evidence to support an unsubstantiated theory that a government laboratory in Wuhan, China, was the origin of the coronavirus outbreak, according to current and former American officials."
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Rep. G. K. Butterfield, left, and Rep. Emanuel Cleaver, wear face masks as they talk on the steps of the U.S. Capitol. (photo: Bill Clark/Getty)

Lee Fang | Congress Quietly Boosts Spending on Lawmakers' Exclusive Concierge Health Clinic
Lee Fang, The Intercept
Fang writes: "In the first weeks of the pandemic, few had access to the same rapid Covid-19 testing that was made available to lawmakers through the clinic."

n mid-March, Rep. Mario Diaz-Balart, R-Fla., became one of the first lawmakers to announce he had Covid-19, after testing positive for the disease caused by the novel coronavirus.

He received his diagnosis promptly from congressional doctors employed by the Office of the Attending Physician, and recovered by early April. Coronavirus testing was made available early and often for members of Congress, who enjoy concierge medical services courtesy of a world-class government health clinic.

Diaz-Balart, like many other voices on Capitol Hill, has denounced increased public spending on health services as a dangerous “government takeover of healthcare.” But like every lawmaker, he enjoys gold-plated medical care from OAP, which provides on-call services at taxpayer expense — and recently got a boost in funding.

Just months before the pandemic, lawmakers hiked funding for the OAP clinic, a move that has not been previously reported. The last congressional appropriations bill, passed in December, increased the budget for the office to $3,868,000 this year. Then, in March, the CARES Act, the sweeping $2.2 trillion bailout legislation, included a special provision that appropriated an additional $400,000 to the OAP clinic as part of a package of special funds to prepare the capital for coronavirus response and hygiene.

All together, the OAP budget has increased more than 25 percent over the last decade. The move to secure the health and safety of lawmakers contrasts sharply with the policy focus of Congress, which has largely faced a stalemate over the expansion of low-cost health care services over the last decade. In the first weeks of the pandemic, few had access to the same rapid Covid-19 testing that was made available to lawmakers through the clinic.

The OAP has been described as “some of the country’s best and most efficient government-run health care.”

Lawmakers are only charged around $600 in annual fees, which covers a small fraction of the costs for OAP operations. The vast majority of the budget comes from money delegated by the federal government. Even the low flat rate isn’t necessarily required. Some lawmakers who have declined to pay the nominal fee are not turned away from the clinic, according to previous reports.

The clinic, managed by Dr. Brian Monahan, a rear admiral in the Navy, employs three doctors, a pharmacist, and over a dozen nurses and medical technicians. The clinic not only provides coronavirus testing, but routine flu vaccines, lab work, physicals, and a range of emergency treatments. Lawmakers have claimed that they use the OAP office as their primary care physician. It also also treats some medical emergencies among tourists.

Members of Congress also receive regular physical therapy care at the clinic. An on-site radiology suite provides X-rays. Specialty doctors from military hospitals routinely visit the OAP at no extra charge, while lawmakers are often referred for free outpatient care at Walter Reed Army Medical Center and the Bethesda Naval Medical Center.

In recent weeks, the OAP has played a critical role in helping lawmakers respond to the rapid spread of coronavirus. Sen. Rand Paul, R-Ky., and other lawmakers who tested positive have consulted closely with doctors from the OAP on ways in which to quarantine themselves and recover.

The office has taken the lead on producing public health policies for congressional operations during the coronavirus pandemic. A recent congressional guidance issued by OAP advises the proper use of face masks in the capital and the use of the gallery space above the House of Representatives to facilitate social distancing.

The CARES Act also provided $12 million for the Capitol Police and an additional $25 million for capital construction crews to prepare sanitation supplies for the administration of congressional buildings.

Dale Fountain, the chair of Enact Universal Healthcare for California, a single payer advocacy group, said he was disappointed to learn about Congress moving to shore up its own taxpayer-funded health care.

“Speaker Pelosi has been adamant in her rejection of single payer for everyone,” said Fountain, noting that the omnibus spending bill in December repealed three tax provisions of the Affordable Care Act while boosting the OAP.

“It has been obvious for awhile that when it comes to her own healthcare and her own projects, ‘how will we pay for it?’ was never a concern,” he added.

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'Survival': Tenants, Landlords Brace for Largest Rent Strike in Decades
Dartunorro Clark, NBC News
Clark writes: "Alcocer is one of tens of thousands across the country who will join one of the largest coordinated rent strikes in decades Friday, affecting three of America's largest cities - Los Angeles, New York and Philadelphia. Others have already begun."
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Supreme Court building. (photo: Will Dunham/Reuters)

The Supreme Court May Soon Give Trump More Power to Fire Anyone He Wants
Leah Litman, Slate
Litman writes: "Its actions underscore the dangers of increasing presidential control over an administrative state that could otherwise be guided by expertise and facts: Autocratic presidents can use the personnel power to suppress facts and mislead the American people."

And Congress would be powerless to stop him.

t a coronavirus task force briefing last week, President Donald Trump floated the possibility of injecting bleach as a cure for the coronavirus. Soon after, the Centers for Disease Control and Prevention warned on Twitter that disinfectants can cause health problems and should be used only according to their instructions. The apparent clash raised the question: What if the president threatens to fire officials who refuse to echo his dangerous speculations? 

The Trump administration has been using the president’s power over personnel (the power to hire and fire federal workers) to prevent government officials from sharing facts about the coronavirus that are inconsistent with the administration’s preferred message. Its actions underscore the dangers of increasing presidential control over an administrative state that could otherwise be guided by expertise and facts: Autocratic presidents can use the personnel power to suppress facts and mislead the American people. Notwithstanding that threat, the Supreme Court appears poised to give the president more power over personnel, not less—and prevent Congress from protecting federal officials in the future. 

It’s not hard to see how the president’s use of the personnel power runs the risk of confusing and harming Americans. On April 21, the Washington Post reported that CDC Director Robert Redfield had warned that a subsequent wave of the virus “next winter will actually be even more difficult than the one we just went through.” That warning is inconsistent with the president’s preferred message that things are getting better. Thus, at the next day’s coronavirus task force briefing, Donald Trump trotted out the CDC director to cast doubt on the story. (The director maintained that while the quote was accurate, “the headline [of the story] was inappropriate.” The headline stated, “CDC director warns second wave of coronavirus is likely to be even more devastating,” rather than “more difficult.”) The White House press secretary subsequently suggested Redfield was merely talking about the need for flu shots. 

Also on April 22, the official who led the federal agency involved in developing a vaccine, Dr. Rick Bright, claimed that his superiors had removed him from his post after he questioned the viability of hydroxychloroquine as a treatment for the coronavirus. A recent study by Veterans Affairs hospitals found more deaths among coronavirus patients who were treated with hydroxychloroquine than those who were treated with other care. But the president had previously described the drug as a “game-changer” and expressed hope that the drug would be used more broadly. 

These examples illustrate some of the troubling consequences of the president’s power over personnel—or at least this president’s power over personnel. Presidents can exercise the power to hire and fire federal officials in ways that both obscure facts and endanger lives—such as by minimizing the looming specter of another major coronavirus outbreak in the coming fall or winter or by touting bleach as a cure for the virus. Presidents can put their employees to the choice of staying on message or losing their jobs. 

What if Congress wanted to do something about that—and tried to protect expert health officials from a president who is allergic to the facts? 

More than 75 years ago, the Supreme Court allowed Congress to insulate federal officials from presidential removal. In Humphrey’s Executor v. United States, the court said that Congress could prevent presidents from removing Federal Trade Commissioners except for “inefficiency, neglect of duty, or malfeasance in office.” These restrictions are sometimes called “for cause” removal restrictions because they prohibit presidents from removing an official for mere policy disagreements. (Indeed, no head of any agency has ever been removed for cause.) In Humphrey’s Executor, the court reasoned that being “independent of executive authority” was necessary for officials “to exercise the trained judgment of a body of experts,” rather than being subject to political whim. 

But Congress might not be able to rely on that decision for much longer. Conservative judges, including one of Trump’s nominees to the Supreme Court, have started to question the wisdom and correctness of Humphrey’s Executor. They have maintained that the Constitution requires the president to exercise unfettered discretion over the power to fire high-level executive officers. When Justice Brett Kavanaugh was a judge on the U.S. Court of Appeals for the D.C. Circuit, he claimed that agencies led by officers protected by for-cause removal were an anomaly—and questioned whether Humphrey’s Executor was correctly decided. 

They have maintained that Article 2 of the Constitution vests all executive power in the president and that the executive power includes the ability to fire the heads of administrative agencies. (My colleague Julian Mortenson has debunked this interpretation of Article 2 in a series of papers.) 

This term, the full Supreme Court may very well agree with Kavanaugh’s aggressive interpretation of Article 2. The court is poised to decide a case about the constitutionality of the structure of the Consumer Financial Protection Bureau. In the course of urging the court to find the bureau unconstitutional (the bureau is led by a single director who is removable for cause), the Trump administration is asking the court to either overturn Humphrey’s Executor or to limit the decision to its facts. Either route would ensure that presidents, including this one, have the authority to remove, for any reason, the heads of any agencies that are exactly the same as the FTC. 

That would mean that Congress could not insulate agencies or departments—including a new office of pandemics—headed by single individuals from presidential removal. A decision along those lines could also limit Congress’ ability to protect existing offices and office heads from presidential control. 

Critics of the administrative state like to say that increasing presidential control over agencies would be good for the health of our democracy and the rule of law. But as the coronavirus has made clear, there are costs to increasing presidential control as well: What if the president can simply fire every official who says that injecting bleach could kill you? 

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The Cuban flag flies in front of the country's embassy in Washington, D.C. (photo: Douliery Olivier/AP)

Gunman Opens Fire on Cuban Embassy in Washington DC
teleSUR
Excerpt: "Cuba's Embassy in the United States was attacked in the early hours on Thursday, after an unknown individual opened fire on the facade of the building."

EXCERPTS:

It is an obligation of states to adopt all necessary measures to protect a diplomatic mission.

Cuban diplomats in the country were not injured, and are safe and protected. 

Material damage was reported after the projectiles hit the facade, the official website of the Cuba's Ministry of Foreign Affairs explained in a statement.

The aggressor was arrested by the local authorities from where he opened fire, and is currently in custody. The Cuban government has no information on the identity of the individual.

"There was no damage to mission personnel, who are safe and secure, but there was material damage to the building resulting from the impact of the shots." 

"Cuban authorities are waiting for the corresponding investigation by the United States government. The U.S. State Department is aware of the incident," the statement said.

The Cuban diplomatic mission, located in Washington, D.C., has a protection and security system in place to deal with any threat against its personnel and facilities.

It is an obligation of states to adopt all necessary measures to protect the premises of a diplomatic mission accredited to their country.

It is their responsibility to prevent any intrusion or damage. It must ensure that the tranquillity of the mission is not disturbed and that its dignity is not violated, the Foreign Ministry said.

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Greta Thunberg has said it is 'likely' she contracted the new Coronavirus. (photo: AFP)

Greta Thunberg Donates $100,000 Prize Money to Support Children During Covid-19 Pandemic
Agence France-Presse
Excerpt: "Swedish climate activist Greta Thunberg has donated a $100,000 prize she won from a Danish foundation to the United Nations Children's Fund (UNICEF) for use against the COVID-19 pandemic, the world body said Thursday."
READ MORE

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