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Constitutional Crisis

Trump Lawyers Now Say Congress Has No Power To Investigate Him Or His Administration

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White House Counsel Pat Cipollone

WASHINGTON, May 15, 2019 — Lawyers representing President Donald Trump, his family, and his administration say the Democratic-led House Judiciary Committee has no right to investigate his conduct as President, his campaign or his finances.

In a letter sent Wednesday to House Judiciary Committee Chairman Jerrold Nadler, White House Counsel Pat Cipollone said the Democratic majority he leads “has not articulated any proper legislative purpose for pursuing inquiries that duplicate matters that were the subject of the Special Counsel’s inquiry.”

“Congressional investigations are intended to obtain information to aid in evaluating potential legislation, not to harass political opponents or to pursue an unauthorized ‘do-over’ of exhaustive law enforcement investigations conducted by the Department of Justice,” he wrote.

Cipollone added that that the Judiciary Committee appeared to be conducting what he called “a pseudo law enforcement investigation on matters that were already the subject of the Special Counsel’s long-running investigation and are outside the constitutional authority of the legislative branch.”

“The only purpose for this duplication seems to be harassing and seeking to embarrass political opponents after an exhaustive two-year investigation by the Department of Justice did not reach the conclusion that some members of the Committee apparently would have preferred.”

Not only has Cipollone rejected Democrats’ effort as duplicative, but both the White House and Justice Department have denied their requests to view an unreacted version of Mueller’s report and the underlying evidence used to compile it as outside the scope of their authority.

Last week, Nadler’s committee voted to hold Attorney General William Barr in contempt after he responded to a subpoena for the report and the evidence it was based on by advising the President to invoke executive privilege over both.

In his letter, Cipollone blasted Democrats for being taking “drastic actions” by citing Barr for contempt “without making any reasonable attempt to engage in the constitutionally mandated accommodation process to narrow its requests.”

The Judiciary Committee, he wrote, “rushed to vote on contempt for failing to provide 100% and immediate compliance with a subpoena that seeks millions of pages of documents from a prosecutor’s files.

“Moreover, the Committee-for the first time in American history-has voted to recommend that the Attorney General be held in contempt because he refused to violate the law by turning over grand-jury materials that he may not lawfully disclose.”

Cipollone is not the only lawyer who is arguing that a Congressional investigation into whether Trump or his associates violated the law is outside the legislative branch’s authority.

The arguments in his letter to Nadler are almost identical those made by one of Trump’s personal lawyers, William S. Consovoy, in an attempt to persuade a judge to block a subpoena seeking financial records from Trump’s accounting firm.

During a court hearing on Tuesday, Consovoy told U.S. District Judge Amit P. Mehta that Democrats were “assuming the powers of the Department of Justice” for a partisan investigation.

“This is about the House being dissatisfied with the president and wanting to prove by any means possible that he has done things wrong,” Consovoy said.

When Judge Mehta asked Consovoy if he was arguing that Congress would not have the power to investigate presidential corruption or a violation of the emoluments clause of the constitution, he replied in the affirmative and suggested that such an investigation was “pure law enforcement function” rather than a matter for Congress.

He also argued that Congress could not conduct an investigation of the President in support of writing new anti-corruption legislation because such an investigation would interfere with the President’s execution of his constitutional duties.

Under further questioning from Mehta, an Obama appointee who the Senate confirmed to the bench in 2014, Consovoy suggested that previous investigations into presidential misconduct — including the probe into the Nixon-era Watergate scandal — had been unlawful.

During a briefing for reporters late Wednesday, a senior administration official struggled to differentiate between the differentiate between Cipollone’s argument and the argument made by Trump’s personal lawyers.

Nor could the official justify how the White House could simultaneously reject Democrats’ oversight efforts as a “do-over” of Mueller’s investigation while denying their requests for access to the fruits of that investigation, other than to suggested that to compare the two denials was akin to comparing apples and oranges due to the presence of grand jury materials in the Mueller report.

The official did, however, find a commonality between the two requests — both exceeded Congress’ authority and were based on a “twisted” view of the Judiciary Committee’s oversight role.

“The Judiciary Committee is really supposed to be conducting oversight of the Department of Justice, but it’s been twisted somehow in recent months that it’s proper to conduct ongoing in detail, lengthy and onerous oversight of the White House itself,” he said.

On the other end of Pennsylvania Avenue, the White House’s arguments got a chilly reception from the executive privilege experts Nadler had assembled for a hearing on subject.

One witness, veteran Republican prosecutor Paul Rosenzweig, told House Judiciary Committee members that the view articulated by the Trump administration and his private lawyers was without merit.

“Mr. Consovoy’s statement is…not just wrong, but frivolously wrong,” said in response to a question from Rep. Jamie Raskin, D-Md.

Rosenzweig, who helped investigate President Bill Clinton while serving as a deputy to then-Independent Counsel Kenneth Starr. said that to suggest that Congress has no authority to investigate the President “would be contrary to more than 220 years of congressional precedent dating back to the first investigation of a military disaster under President George Washington.”

Another witness, Georgia State University Law Professor Neil Kinkopf, told Raskin that the argument articulated by Trump’s attorneys was “preposterous.”

“There aren’t words for what a frivolous assertion that was,” Kinkopf said.

“It ignores the necessary and proper clause fundamentally, which gives this body the authority to enact all laws that are necessary and proper for carrying into execution all of the powers of the government, including those that are invested exclusively in the president. “

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Andrew Feinberg covers the White House, Capitol Hill, and anywhere else news happens for BeltwayBreakfast.com and BroadbandBreakfast.com. He has reported on policy and politics in the nation's capital since 2007, and his writing has appeared in publications like The Hill, Politico, Communications Daily, Silicon Angle, and Washington Business Journal. He has also appeared on both daytime and prime radio and television news programs on NPR, Sirius-XM, CNN, MSNBC, ABC (Australia), Al Jazeera, NBC Digital, Voice of America, TV Rain (Russia) and CBS News. Andrew wishes he could say he lives in Washington, DC with his dog, but unfortunately, he lives in a no-dogs building in suburban Maryland.

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