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In Donald Trump’s White House, Oversight By Democrats Lacks Legitimacy

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An empty chair stands where Attorney General William Barr was set to sit on May 1, when he had been set to testify before the House Judiciary Committee

WASHINGTON, May 7, 2019 — Whether it’s a lawful request for President Trump’s tax returns from the House Ways and Means Committee chair, a Judiciary Committee subpoena for a former White House official, or a routine request to have a cabinet secretary testify at a routine Appropriations Committee hearing, the Trump administration has had a consistent message for oversight-minded members of Nancy Pelosi’s caucus: You have no authority because you’re Democrats.

Since Trump took office in January 2017, his administration has routinely instructed agencies to not respond to document requests and inquiries from Democrats, who then made up a minority in both the House and Senate. Though unprecedented, the White House characterized the move at the time as being consistent with how past administrations dealt with the minority party in Congress.

And while Democrats might have expected this to change when they took control of the House of Representatives on January 3rd, President Trump and his administration appear to have rejected the very legitimacy of oversight by a body controlled by members of opposing political party.

Instead of recognizing Congress as a co-equal branch of government with legitimate oversight authority, Trump has frequently railed against what he calls “Presidential harassment” and ordered administration officials not to turn over documents or give testimony on all sorts of matters that would normally fall under the Legislative Branch’s purview.

As a result, Democratic committee chairs have been stymied in their efforts to obtain even the most mundane information about agencies they are supposed to oversee, leaving House Oversight Committee Chairman Elijah Cummings, D-Md., to reveal that as of earlier this year, the Trump administration had not turned over “a single piece of paper” in response to requests from the Democratic majority.

Tax request rejection puts Mnuchin opposite law

On Monday, Treasury Secretary Steven Mnuchin became the latest Trump official to reject the idea that a Democratic committee chairman had the authority to make a request of him, even one specifically provided for by statute.

In a letter to House Ways and Means Committee Chairman Richard Neal, D-Mass., Mnuchin declared that he would not obey a century-old provision in the Internal Revenue Code requiring the IRS to honor Neal’s request for six years of President Trump’s tax returns, because the request “lacks a legitimate legislative purpose.”

While Mnuchin’s denial of Neal’s request stands out because it is in violation of a clear provision in existing law, his reason for denying Neal’s request is consistent with language used to justify previous refusals to comply with both routine document requests and subpoenas issued by committee chairs.

Cummings, for instance, received a letter last week from the office White House Counsel Pat Cipollone, informing him that in Cipollone’s determination, the Oversight Committee’s request for documents related to President Trump’s decision to override career officials by ordering that his family members be given Top Secret security clearances despite their extensive foreign ties “fall[s] well outside the realm of legitimate congressional information requests.”

Cipollone had previously derided the Oversight Committee’s probe into how Ivanka Trump and her husband, Jared Kushner, were granted Top Secret clearances as an “improper” investigation which “has no valid legislative purpose, and clearly is a mere pretext to harass and intimidate dedicated public servants.”

Official says Dems’ oversight authority doesn’t allow looking back

One senior administration official BeltwayBreakfast spoke with explained that the Trump administration views a request with a “legitimate legislative purpose” as one that is solely “prospective in nature,” which seeks “information or documents that you are gathering in order to write a new law or change existing law.”

But when asked if the White House had deemed any Democratic oversight request legitimate enough to warrant a response, the official could only point to a briefing on security clearance procedures which the White House held for House Oversight Committee staff.

That briefing, which did not include any information on how Ivanka Trump and Jared Kushner had received their clearances, was later cited by the White House as a reason to deny Democrats’ requests for documents.

The official denied that political considerations have played any role in the administration’s refusal to comply with Democratic document requests or subpoenas, and instead characterized the White House’s response as “pursuant to a longstanding tradition of accommodation where there’s a back-and-forth negotiation over a what exactly, the committees are doing oversight on.”

But other White House officials — including the President himself — have repeatedly attacked Democrats’ oversight efforts as unnecessary acts of partisan overreach, serving no purpose except to dig up dirt with which to damage a Republican chief executive.

On matters pertaining to Special Counsel Robert S. Mueller III’s investigation, the White House has argued that because Mueller received countless documents from the White House and Trump campaign, as well as testimony from numerous administration officials, there is no need for the White House to subject any current officials — or even former ones, in the case of McGahn, who returned to private practice at Jones Day last year — to what both Trump and advisers like Counselor to the President Kellyanne Conway have characterized as a “partisan” investigation.

In a recent interview with the Washington Post, Trump even went so far as to characterize a Democratic-led House as an arm of a political party instead of one half of the Article I branch of government.

“I don’t want people testifying to a party, because that is what they’re doing if they do this,” he said.

GOP disdain for Dem voters key, historian says

Geoffrey Kabaservice, a historian and author who has written extensively about the Republican party, told BeltwayBreakfast that he attributes the Trump administration’s attitude towards Democrats’ oversight efforts to a worldview held by those “on the far-right fringes” of the GOP, who see the Democratic party as inherently illegitimate because of their reliance on voters in urban areas, many of whom are not white.

“The feeling is, you know, that the Democrats represent only that part of country [living] in the cities, which is unrepresentative of the country. And they rely on the votes of immigrants and many people who voted illegally, and therefore they do not actually represent the majority of the country and…should not be pursuing this kind of investigation,” said Kabaservice, who is currently director of political studies at the Niskanen Center.

Experts call White House posture ‘ridiculous,’ ‘absurd,’ ‘bizzare’

As for the White House’s contention that the only legitimate exercise of oversight authority is prospective, longtime Senate aide Jim Manley had only ridicule for such a notion.

“Based on my years of experience, I have no idea what that senior White House official was suggesting,” said Manley, who spent four decades working for a succession of senior Democratic senators, including Harry Reid, D-Nev., Ted Kennedy, D-Mass., and George Mitchell, D-Maine.

Manley stressed that Congress’ oversight responsibilities include both prospective oversight towards writing new legislation, and retrospective oversight of past events. He noted that there had been several prominent examples of retrospective oversight while the House was under Republican control, pointing to investigations GOP chairmen conducted into the Obama-era Justice Department’s “Operation Fast and Furious” and the 2012 deaths of American foreign service members in Benghazi, Libya.

To think otherwise is “so ridiculous,” he said. “There’s not much else to say.”

While some Democrats have called Trump’s stonewalling Nixonian, Former Watergate Assistant Special Prosecutor Nick Akerman told BeltwayBreakfast that the Trump administration’s blanket refusal to submit to oversight by House Democrats as “bizarre,” “ridiculous,” and more extreme than even the Nixon administration’s periodic intransigence in the face of various Watergate investigations.

He noted that while Nixon tried to shield some documents — most notably the tapes of his Oval Office conversations — from Congress, officials from his administration frequently appeared before both the House and Senate Judiciary committees.

“This goes far beyond anything [Richard] Nixon did,” said Akerman, now a partner at the law firm of Dorsey and Whitney. Even Nixon, he said, never rejected the authority of Congress because it was controlled by the opposing party.

One member of both the House Judiciary and Oversight committees, Rep. Jamie Raskin, D-Md., called the administration’s position was “absurd.”

“The House is either going to be in the hands of both Republicans and Democrats, and the same goes for the White House. It can’t be that our constitutional oversight power only exists when the same party is in power in both the House and the presidency,” said Raskin, who joined the House after 26 years teaching constitutional law at American University’s Washington College of Law.

“We have a constitutional oversight power regardless of who is in the majority in Congress and who is in the White House, and the Supreme Court has been very clear that the power of inquiry and investigation is essential to the legislative function.”

Raskin, who represents first and second-year House members on Speaker Nancy Pelosi’s leadership team, added that the reasoning behind the White House’s rejection of House Democrats’ oversight requests by Trump and his advisors “makes as much sense as saying the President cannot veto legislation passed by a Democratic Congress.”

“The President is acting with complete defiance and contempt of Congressional power under the constitution,” he said.

Another Democrat with oversight expertise, former House Judiciary Chief Counsel Elliot Mincberg, echoed Raskin’s comments in a phone interview with BeltwayBreakfast, calling the Trump administration’s blanket rejection of oversight by Democrats “an outrageous position” that he has not seen from any prior administration of either party.

“I’ve never seen an administration, Democratic or Republican, take that view,” said Mincberg, now a senior fellow with People for the American Way.

Mincberg explained that some of the legal papers Trump’s personal lawyers have filed to try and block Democratic subpoenas cite court cases from 1870s which have not been good law in over a century.

“The courts have recognized since the 1920s that Congress has a crucial oversight role to play for a number of reasons,” he said, adding that oversight becomes even more important when control of government is divided.

While administration officials have characterized their rejections of various Democratic oversight requests as consistent with longstanding principles governing separation of powers, Mincberg noted that what the Trump White House is doing goes far beyond the usual disputes between branches of government controlled by opposing parties.

“President Obama criticized Republicans for the amount of oversight they did when he was President, and [George W.] Bush and [Richard] Nixon criticized Democrats for the oversight that they did, but never have we seen this kind of apparent refusal to cooperate,” he said.

“Trump has taken it to an extreme that we haven’t seen even among Republicans previously. These actions are way more extreme.”

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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.

White House

Despite Efforts To Calm Americans’ Fears, Trump’s Coronavirus Approval Drops

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Vice President Mike Pence greets sailors on the hospital ship USNS Comfort

President Donald Trump’s response to the novel coronavirus outbreak in the United States is leaving Americans less than impressed.

A Morning Consult poll released Tuesday shows less than half of voters surveyed — 49 percent — approve of the president’s approach to dealing with the threat posed by the virus’ spread in the US.

The results of that poll, taken from February 28 to March 1, showed a marked drop from the 56 percent of voters who said they approved of Trump’s actions when surveyed from February 24 to February 26th, a decline caused by a 9-point drop in independents approving of his performance, as well as a 7-point drop among Democrats.

The same February 28-March 1 poll showed the number of voters who disapprove rising to 37 percent, which leaves the president’s net approval on the coronavirus issue at 12 points. That’s less than one third of what it was three weeks ago.

The president’s declining approval numbers on coronavirus come despite his attempts to project calm during two press conferences last week, during which he attacked Democrats for supposedly politicizing the issue.

Trump also tried to stem discontent in the financial markets by putting Vice President Mike Pence in charge of coordinating his administration’s response to the outbreak.

But Pence has a checkered history when it comes to public health matters. As governor of Indiana in 2015, the future Vice President presided over an outbreak of HIV — the virus that causes AIDS — among intravenous drug users that saw over 200 people infected.

Although Pence was advised by public health experts to declare a public health emergency and issue emergency regulations to allow needle exchanges to operate in Indiana (which bans them).

Citing his own belief that needle exchange programs encourage drug use (a belief which is contradicted by most public health experts), Pence refused to allow any such emergency measures until roughly two months after the outbreak peaked, when he approved an exchange which would operate for 30 days.

In 2018, Yale University epidemiologists found that the outbreak could have been stemmed had Pence and other state officials acted faster.

“Our findings suggest that with earlier action the actual number of infections recorded in Scott County — 215 — might have been brought down to fewer than 56, if the state had acted in 2013, or to fewer than 10 infections, if they had responded to the [hepatitis C] outbreak in 2010-2011,” the study’s lead author, Forrest W. Crawford, said at the time. “Instead, they cut funding for the last HIV testing provider in the county.”

Another of the paper’s authors, Yale University’s Gregg Gonsalves, tweeted on Wednesday that Trump’s decision to place Pence in charge of coronavirus response ““speaks to a lack of seriousness by the White House.”

When asked on Saturday whether he and Pence would pledge that politics and ideology would play no role in determining how the Trump administration responds to a coronavirus outbreak, Trump refused to do so.

Speaking in his own defense, Pence downplayed the seriousness of the 2015 outbreak, which he said occurred “in a very small town.”

“I think my experience as a governor, dealing with two different infectious diseases and seeing the vital role that local healthcare providers play, that federal officials play, it has really informed me,” he said.

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Trump’s Attempt To Delay Bolton Book Unlikely To Pass Muster With Courts, Experts Say

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President Trump is personally seeking to block publication of his former national security adviser’s book by asserting that any conversation with him is by its very nature classified.

The heretofore unprecedented theory would prevent Ambassador John Bolton, who served as Trump’s national security adviser until last fall, from publishing his book, “The Room Where It Happened,” until either Trump relents and allows it or a judge intervenes after litigation that would undoubtedly delay the book’s publication until well past its announced March 7 release date.

According to The Washington Post, Trump has told aides that he will endeavor to block the book’s publication on the grounds that his conversations with Bolton are classified in their entirety, no matter the topic.

While the president has broad authority to declare information classified — or to declassify it — an assertion that all conversations between him and his national security advisor are classified would contradict the posture taken by the career National Security Council staff tasked with reviewing the manuscript prior to publication.

In a letter sent last month to Bolton attorney Charles Cooper, NSC records office senior director Ellen Knight warned that Bolton’s book “appear[ed] to contain significant amounts of classified information” which had been deemed top secret, but also maintained that the NSC would assist with revisions to excise that information so as to “move forward as expeditiously as possible.”

Knight, a career official whose role places her in charge of the prepublication review process, told Cooper that NSC staff would “do our best to work with you to ensure your client’s ability to tell his story in a manner that protects U.S. national security.”

Joshua Geltzer, a Georgetown University Law Center visiting professor who served as the NSC’s Senior Director for Counterterrorism from 2015-2017, said an assertion that any conversations between Bolton and the president are per se classified was unlikely to pass legal muster.

“At best, that’s mushing classification together with executive privilege,” he said. “Sometimes people think of [classification] as a form of privilege, but it’s not the same as the privilege that attaches to the communications between the President and his closest advisor.”

Geltzer said he would hope that the career NSC officials who’d normally review Bolton’s book would do their jobs “as they understand them to be best and correctly done,” but conceded that Trump could, in theory, overrule them.

If the President wants to overrule them, he definitely has that authority in many, many areas. But I would hope that their instinct is still to do the job correctly, rather than to do it incorrectly.”

Steven Aftergood, a physicist who heads the Federation of American Scientists’ Project on Government Secrecy, said claiming any conversation with the president is classified would be an “unusually aggressive and expansive view of classification,” but said such an assertion would not necessarily pass legal muster because the White House would need to indicate to Bolton what information in the book is classified “with a degree of specificity.”

Knight, Aftergood said, would most likely not tolerate such an abuse of the prepublication review process because she is “a career professional who has spent decades distinguishing carefully between what is classified and what is not.”

If Bolton is forced to file suit to ensure publication of his manuscript, Geltzer said judges might not take kindly to such a sweeping declaration of classification in the post-Snowden era.

A judge, he said, could ask for the government to submit an ex parte affidavit — one that is submitted to the court without a copy being seen by the other side — explaining why certain information has been deemed classified at a level that disclosure would cause “grave harm” to national security.

But forcing Bolton to take the White House to court could backfire, he explained.

“Are they really going to claim that John Bolton, a hard, right conservative, is trying to jeopardize national security by disclosing classified information? Who is really going to believe that?” he asked.

“Everyone will understand what what game is being played right now if publication is is blocked, or significantly deferred,” he said. If his book is is delayed for months or longer, everyone will understand that it’s not because of national security reasons, but because of political ones.”

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Party-Line Votes Stop Schumer’s Subpoena Push

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The Senate has rejected a succession of amendments to the rules governing President Trump’s impeachment trial which would direct Chief Justice John Roberts to issue subpoenas to the White House and several executive branch agencies which refused to honor subpoenas issued during the House’s impeachment inquiry.

Senators voted along party lines, 53-47 to table a series of amendments offered to the proposed Republican-authored trial rules by Senate Minority Leader Chuck Schumer, D-New York, which would have compelled the White House, the State Department, and the Office of Management and Budget to produce documents for the Senate to consider as evidence when deciding whether to remove Trump from office for abuse of power and obstruction of Congress.

Senator Ted Cruz, R-Texas, condemned Democrats for objecting to the “very reasonable proposal” of using a process similar to that used to try President Bill Clinton in 1999.

“This seems to be a time for Adam Schiff and the house managers to attack the president and lecture the American people,” he said.

While speaking to reporters during a break in the trial, Minnesota Democrat Amy Klobuchar hit back against White House Counsel Pat Cipollone, who during part of his arguments on Tuesday remarked that “some of you” (referring to senators who are currently running for the Democratic presidential nomination) “should be in Iowa” rather than sitting in the Senate chamber.

“I’ve made clear from the very beginning that I’ve got to do my constitutional duty,” she said.

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