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Mazars + Congress Subpoenas + Trump = Appeal

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Posted on July 08 2019

 I am president and you’re not

 

so screw your subpoena 

 

By way of background, this May 2019  entry will help you better understand what the current state of play is regarding Trump’s Appeal. There are a few critical cases that  are repeatedly cited by parties. Because we are going to get in to some weighty judicial discussions...because you need to have a decent understanding of what and why the parties are arguing - otherwise 

 

McGrain v. Daugherty, 273 U.S. 135, 174 (1927) 

 

Question before SCOTUS:

Was the Senate committee out-of-bounds in issuing its contempt order since the purpose of the investigation had nothing to do with the committee's legislative purpose?

 

SCOTUS held:

...upheld Daugherty's contempt conviction, establishing a presumption that congressional investigations have a legislative purpose. This presumption was not overcome by showing that the committee also had another purpose, such as exposure of wrongdoing. This presumption would later restrict the Court's hand in clear cases of congressional overreaching while investigating communists after World War II.

 

I’ve previously written about this particular case, found here and here, and most recently found here 

The second case that is repeatedly cited is Watkins v. United States, 354 U.S. 178, 187 (1957)

 

Question before SCOTUS

 

Did the activities of the Un-American Activities Committee constitute an unconstitutional exercise of congressional power?

 

SCOTUS held:

...that the activities of the House Committee were beyond the scope of congressional power. The Court held that both the authorizing resolution of the Committee and the specific statements made by the Committee to Watkins failed to limit the Committee's power. The Court found that because Watkins had not been given sufficient information describing the pertinency of the questions to the subjects under inquiry, he had not been accorded a fair opportunity to determine whether he was within his rights in refusing to answer. The Due Process Clause of the Fifth Amendment thus invalidated Watkins' conviction.

Part I of Oral Arguments

One, official statements and reports of the Committee in the members of the Committee on official business that the Un-American Activities Committee asserts this right of exposure independent of any legislative purpose.

Secondly, that the questioning of petitioner and his colloquies with the Committee demonstrated this purpose of exposure.

Part II of Oral Arguments

 

J. Lee Rankin argued; 

I agree you couldn't do it in the abstract, Mr. Justice Black, but I do think that the power that you're dealing with here is with regard to a coequal branch of the Government.

And I think that just as you are very careful about declaring any congressional action to be unconstitutional when they legislate that even more so in this area, the Congress needs to have a recognition of the fact that it has to have knowledge, that it has to have information.

And here, you're dealing not with a particular law but with the power to conduct legislation -- legislative activity itself, and therefore, all of those considerations have to be taken into account when you're making the decision.

And the presumption if you are dealing with the activity of another court, lower court, would be that it would be a valid action, that the court was -- taken.

And it seems to be it should be a fortiori as to the Congress in a particular -- in a situation, so that -- and I do not think that you can disregard properly the rules that should apply to examine into this area of congressional action, and its -- and the needs of the Congress to be able to inquire and that there should be a presumption that when an inquiry is being made, that they are trying to do it in accordance with their duties and responsibilities.

And that you take along all of that laws in applying the -- or answering the question about your situation as we have here.

 

And the third case that you should read is Eastland v. U.S. Servicemen’s Fund 

 

Question before SCOTUS:

Did the actions of the Senate Subcommittee on Internal Security fall within the sphere of legitimate legislative activity and not violate the First Amendment?

 

SCOTUS held:

that the Senate Subcommittee's actions were legitimate and did not violate the Fund's First Amendment rights. Chief Justice Burger argued that the power to investigate, even through a compulsory mechanism like a subpoena, is "inherent in the power to make laws." Furthermore, the investigation was related to and aided in furthering a "legitimate task of Congress," namely, the investigation of the Internal Security Act. Burger disregarded the Fund's claim that the investigation was being conducted to expose its beliefs, many of which were "unorthodox or unpopular." He reasoned that the legitimacy of a congressional investigatory action is not derived from the motives of the members or by the information that the investigation uncovers.

 Oral Arguments

Chief Justice Warren Burger:

I don't know whether it's of any importance or not but since the question arose and you have undertaken to answer it about the subpoena, I have thought and I find that my memory was correct that on page 13 of the appendix there is an allegation, paragraph nine at the bottom that the Senate Committee, subcommittee caused to be served on the Chemical Bank of New York, the subpoena duces tecum?

 

What you will notice is Trump can not actual square his overt distain and abject intolerance of the two other co-Equal branches of Government. A reasonable person could infer that Trump has never been told “no”. And that tiny fact should be the single most disqualification of his “presidency”. Having spent (arguably against my will) observing and researching Trump - the very fact that he’s never had to answer to a real board of directors and no I do not count his family and that felonious foundation as an actual board of directors. A true board of directors have various tools that they can use rein in an out of control Executive. Granted this is speculative on my part but in my line of work there are various reasons articles of incorporation and board of directors have specific verbiage. The reality is Trump has never had to answer to a Board - as such Trump’s natural inclination towards authoritarianism really can not be ignored. To do so would be at the peril of our fragile democracy. 

 

 

For example ten days after Trump took the oath of office, which included the “take care clause” Trump decided to presumably reassure his supporters and possibly his handlers that he would: “reinstate the Rule of Law” that no one was more ethical or held as much respect as he did for our Constitution. All of that was a lie - yet 61+million of you voted for this conman. 

What many of you failed to understand is the moment Trump placed one hand on the Bible (I’m actually surprised the Bible didn’t spontaneously combust) and raised this other hand to orate his “oath of office” he had knowingly and willfully violated OUR constitution. Yes I am implicitly referring to the Domestic and Foreign Emoluments Clause. Fun fact that often gets overlooked less than 45 minutes after taking the oath of office  - Trump named the new GSA head. In fact the ptt.gov emails showed that Trump was so intent on naming his new GSA head that his transition team didn’t understand why he couldn’t name before his inauguration but then again it’s tiny details like this that consistently overlooked by the daily tsunami of “breaking news”.

This is the May 22, 2019 Trump Motion to  Expedite Trump’s Appeal (paywall) I’ve uploaded to my public Google Drive, found here.

 

 

Trump’s Appeal

 Trump’s Appeal Brief found here (paywall) which was filed on June 10, 2019 or you can access his Brief via my Google Drive, found here the reality is Trump offers zero meritorious arguments. In fact his strategy is: “replace President Trump” with a “Supreme Court Justice’s Name” and then we are in a untested constitutional crisis. I’ve read his brief three times and I can’t find any merit to his bullshit. It’s like Trump decided to wrap it in gold-leaf but it’s still BS

Moreover Trump’s other strategy is cherry picking Chief Justice Roberts circa 2011. But the “personalization” does not address the facts - specifically the domestic and Foreign Emoluments Clauses. That is Trump never asked or received approval from Congress to violate our Constitution. That’s not an opinion that’s an actual fact. Trump acts as if he’s above our laws and our constitution. He has repeatedly shown his distain for the two other coequal branches of Government and he will continue to usurp the power of the Legislative and Judicial Branch.

 

 

The USCA Case #19-5142 (paywall) - I’ve taken the liberty of uploading the U.S. House of Representatives Brief to a public google drive, link found here. Below I’ll discuss the arguments - although I’ve read their brief and I can’t find any weakness or formate ant reasonable counter argument.

 

 

 Rightfully so the US House of Representatives come out of the gate arguing the aforementioned cases. Hence why I thought it would be important to establish the predicate in a more fulsome manner as to what the House of Representatives argument’s foundation. There is no dispute that Congress has a constitutionally enshrined power and authority. I now refer you to page 1, second paragraph. There’s a subtly that might get overlooked. This isn’t me parsing words this is me reading and highlighting what I think is important. Trump has a tendency of arguing in the alternative but in a binary fashion. I want you to read what SCOTUS held in the McGrain

 

Applying the Supreme Court’s and this Court’s precedent, the district court correctly explained that, “[s]o long as Congress investigates on a subject matter on which ‘legislation could be had,’ Congress acts as contemplated by Article I of the Constitution.” JA269 (quoting McGrain, 273 U.S. at 177). The district court held that the subpoena issued to defendant Mazars USA, LLP (Mazars) by the intervenor Committee on Oversight and Reform of the U.S. House of Representatives (Oversight Committee) for financial statements, accounting records, and other
documents relating to plaintiffs-appellants President Donald J. Trump and related entities was valid and enforceable.

 

What I do find exceptionally gratifying is the White House’s default position that “the House of Representatives Rules” (and I’m paraphrasing here) do not apply to the Trump White House. When Trump first filed his complaint - I was challenged finding a plausible argument. Because even before the DC Judge rendered their Order - most should have known that the Congress votes on Rules that govern that particular Congress. Accordingly Judge Mehta’s echoed what some us knew he would. Not because that’s an Opinion, no those assertions were and are grounded in facts, coupled with a degree of understanding the Legislative and Judicial process. Case in point on May 20, 2019 I walked you through the original Order and specifically carved out the various House Rules, SCOTUS Rulings and other cases that unsuccessfully challenged Congress’ authority, as it relates to Subpoenas and conducting OverSight.

 

You can read the House of Representatives, U. S. HR 6 House Rules  and now this might give you the clearest indication of why current White House Counsel Pat Cipollone has repeatedly transmitted letters to Congress citing the House Rules are unavailing (not). This link will take you to the eight previous write ups where I explicitly stated Cipollone is categorically wrong as it relates to House Rule X...

 

From a purely practical and academic standpoint - this particular section of the House of Representatives’ brief literally says it all. And it should inoculate Trump’s feigned “presidential harassment” because let’s be clear - Congressional OverSight is not harassment. There’s also something a big breathtaking when you read the House OverSight Appeal Brief - their argument is, rightly so - founded in our Constitution and the Rules Adopted by the 116th Congress.

 

 

 You may want to bookmark the 116th Congress’ Rules - these were adopted, shortly after the new Congress was sworn in, the relevant subsection can be found of Page 8 - I 

 

 

The Oversight Committee is the House’s principal oversight body. Under House Rule X, the Oversight Committee’s jurisdiction includes certain enumerated matters, including “[f]ederal civil service . . . and the status of officers and employees of the United States, including their compensation,” “[g]overnment management and accounting measures generally,” and the “overall economy, efficiency, and management of government operations and activities, including Federal procurement.” House Rule X.1(n)(1), (4), (6)

 

What you might not know is in the 115th Congress versus 116th Rules, specifically Rule X - Clause 3 Special oversight function

(i) The Committee on Oversight and Reform shall review and study on a
continuing basis the operation of Government activities at all levels, including the Executive Office of the President.

 

To further complicate the Rules - each house Committee and/or subcommittee members are also bound by the adopted Committee Rules, see below, specifically page 7 which reaffirmed the General House Rules and Duties of the House OverSight and Reform Committee.

Rules of the Committee

Rules of the Committee for the 116th Congress

Rules of the Committee for the 115th Congress

Rules of the Committee for the 114th Congress

Rules of the Committee for the 113th Congress

 

What the Trump White House has repeatedly argued contradicts our Constitution and the codified Rules that Govern the 116th Congress and subsequent House Committees. In large part Trump’s defense is nonsensical both statutorily and constitutionally.

So it’s refreshing to see the House of Representatives holding fast to their power and refusing to abdicate their authority to be the “check and balance” of arguably an out of control Executive. The reality is the House OverSight Committee does have the authority - which is vested by both our Constitution and House Rules...meaning the OverSight Committee has jurisdiction to investigate whether any senior Executive Branch Employees, which includes president Trump might be violating the Ethics in Government Act of 1978 - in my opinion the House OverSight’s reference of the aforementioned Ethics Act is a multi-pronged argument.

https://legcounsel.house.gov/Comps/Ethics%20In%20Government%20Act%20Of%201978.pdf

Specifically I now refer you to pages 10 thru 14 - concerning “trust” and the fact that Trump did not (I doubt he ever intended) set up a true “blind trust” in the present form the Revocable Trump Trust - he can withdraw any funds at any time and is not obligated to disclose. Which one could argue is a violation of not just our constitution but several statues. Meaning the House’s arguments are with merit and substantive.

The reality is Trump can not produce any evidence that he or his business sought approval from Congress to accept both Domestic or Foreign Emoluments. Trump never created a true blind trust. As tax payers we have a right to know if Trump et al are making decisions in America’s best interest or for his personal (arguably) unjust enrichment, while violating our laws & constitution, it is really that simple.

More broadly Trump conflates who “owns” the financial records, you’ll notice in his brief he tangentially addresses the subject of ownership but the fact remains Congress has the law and legal precedent on their side. Meaning the financial records are owned by Mazars and NOT Trump. Accordingly the House OverSight Committee makes a strong showing of why they are Investigation. The GSA-OIG report and various emoluments issues discussed here. The House OverSight repeatedly references the January 2019 GSA-OIG Report

Because the House Democrats are right in focusing on the GSA Contract Award GS-LS-11-1307 in 2016 Ivanka Signed off 

 

 

 

And lastly just before the July4th holiday weekend the Court issued the following Order for Oral Arguments set for July 12, 2019 found here (paywall) or found on my google drive here 

 

 

 At any rate - as I explained late last week I’m completely swamped until July 12th so my blog entries will be spotty because I’m otherwise preoccupied with actual work. I mean how do you think I can afford to buy all those bonbons? I mean bean flicking and counting is truly exhausting work..-SpicyFiles Out

 

 

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1 comment

  • Marie G: July 11, 2019

    Having dealt with blind trusts (in the past and ongoing) I’m glad you’re pointing out the fact he hasn’t established a true blind trust. Then today came and I had to take a long break. I really need to know, AWFDY?

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