Will any Democratic politician or leader ever see outside the box? Today's topic is the core constitutional crisis - far more urgent than Impeachment - in which Republican-appointed judges are canceling the very notion of Congressional oversight and Presidential accountability.
"A three-judge panel of the federal appeals court for the District of Columbia ruled at the end of February that it lacked the power to order former White House counsel Donald McGahn to testify before the House Judiciary Committee.... The majority, made up of two Republican appointees, ruled that this was not the sort of dispute that federal courts were authorized to resolve: Congress and the White House should negotiate." It appears that centuries of precedent count for less than GOP fears that hearings might reveal an ocean of turpitude.
Standard methods for dealing with executive misbehavior — e.g. Congressional investigations — have been stymied by unprecedented stonewalling. Traditional, Constitutionally explicit oversight prerogatives that go back two centuries are now flouted as the White House moons every check or balance. Moreover, we’ve learned it’s futile to sue the Trump Administration in GOP-suborned courts.
Only what’s fascinating — opening a huge window of opportunity — is how the Roberts Court has rationalized abetting this executive putsch. There’s a potentially powerful silver lining, one that’s amazing.
First, I am not the only one suggesting that House Democrats bypass the courts. In this article, Josh Chafetz, a professor of law at Cornell Law School, asserts that Congress already has tools and powers. And he is right that, in theory:
"For one thing, it can arrest people who refuse to testify and hold them until their contempt is purged (that is, until they comply with the subpoena). Although neither house of Congress has used this power in decades, it used to frequently, and there’s no reason that it could not be revived, given the political will. For another thing, it can use its power of the purse and prohibit the expenditure of funds on, say, the White House Counsel’s Office, until McGahn comes around. Of course, the Senate might refuse to go along with such an appropriations rider, or the president might threaten to veto the appropriations bill containing it."
Only what’s fascinating — opening a huge window of opportunity — is how the Roberts Court has rationalized abetting this executive putsch. There’s a potentially powerful silver lining, one that’s amazing.
First, I am not the only one suggesting that House Democrats bypass the courts. In this article, Josh Chafetz, a professor of law at Cornell Law School, asserts that Congress already has tools and powers. And he is right that, in theory:
"For one thing, it can arrest people who refuse to testify and hold them until their contempt is purged (that is, until they comply with the subpoena). Although neither house of Congress has used this power in decades, it used to frequently, and there’s no reason that it could not be revived, given the political will. For another thing, it can use its power of the purse and prohibit the expenditure of funds on, say, the White House Counsel’s Office, until McGahn comes around. Of course, the Senate might refuse to go along with such an appropriations rider, or the president might threaten to veto the appropriations bill containing it."
While I respect Professor Chafetz - and he is aiming in positive directions - alas, he just doesn't get it. Schiff & Nadler do not have to send Capitol Police out to do gun battles with the Secret Service or William Barr's praetorian guards on the streets of Washington. There is a better way, and it will work - simply work - without the slightest drama.
== Can you follow this logic? ==
Okay, now pay attention.
In order to evade going on record regarding the merits of any case, or openly declaring void 250 years of Congressional oversight power, Chief Justice John Roberts and his Republican majority have instead repeatedly ruled against plaintiffs on the narrow basis of “standing,” nitpicking some technicality that renders - say - House Democrats ‘unqualified’ to file concerning subpoena enforcement, or emoluments or demands for documents.
Or else - and now we get to the really creative part - they declare these issues “non-justiciable” matters that courts inherently cannot act upon, because doing so would infringe upon “the prerogatives of another independent branch.” (It's how they managed to leave in place cheats like gerrymandering, despite rising citizen abhorrence of the crime.) This consistent squirm excuse is accompanied with chiding admonitions for Congress and the Executive to “settle it among yourselves...”
...with the convenient outcome that this always benefits Trumpian faits accompli.
...with the convenient outcome that this always benefits Trumpian faits accompli.
== Turning their trick into a trap! ==
Now think about that… as not a single Democratic politician, or independent scholar, consultant or pundit seems to have done.
In fact, Roberts and his co-conspirators have painted themselves into a corner! One in which the advantage would veer to Congressional oversight committees. Further, having stepped away, Roberts will be unable to step back in, to interfere when that stone wall collapses.
Both here and in Polemical Judo I have made clear there is a way to accomplish that. For Congressional Democrats to sidestep suborned courts altogether! The method is bold, but totally justified under the Roberts Doctrine, a judo flip that would work.
In fact, there is no conceivable way it would *not* work!
And if any of you knows anyone who might know someone who can get the ear of Chairmen Schiff or Nadler… I could explain it in two minutes.
Oh, don’t ask me to explain it here. While the method does not depend utterly on surprise, an element of surprise could make its first use especially effective. So I’ll not blab except to someone with access.
Yes, sure, it’s already in my book. But there are so many notions there… more than 100 under-used or never-used tactics that could help in this fight… that I’m not worried about losing that first surprise. Anyone who reads Polemical Judo looking for it will find something else to get excited about, before chapter four.
Now think about that… as not a single Democratic politician, or independent scholar, consultant or pundit seems to have done.
In fact, Roberts and his co-conspirators have painted themselves into a corner! One in which the advantage would veer to Congressional oversight committees. Further, having stepped away, Roberts will be unable to step back in, to interfere when that stone wall collapses.
Both here and in Polemical Judo I have made clear there is a way to accomplish that. For Congressional Democrats to sidestep suborned courts altogether! The method is bold, but totally justified under the Roberts Doctrine, a judo flip that would work.
In fact, there is no conceivable way it would *not* work!
And if any of you knows anyone who might know someone who can get the ear of Chairmen Schiff or Nadler… I could explain it in two minutes.
Oh, don’t ask me to explain it here. While the method does not depend utterly on surprise, an element of surprise could make its first use especially effective. So I’ll not blab except to someone with access.
Yes, sure, it’s already in my book. But there are so many notions there… more than 100 under-used or never-used tactics that could help in this fight… that I’m not worried about losing that first surprise. Anyone who reads Polemical Judo looking for it will find something else to get excited about, before chapter four.
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