The Morning Jolt

White House

Our Constitution Is Clear on Powers, and We Really Should Read It

President Donald Trump speaks about the House impeachment investigation at the White House in Washington, D.C., October 7, 2019. (Kevin Lamarque/Reuters)

Making the click-through worthwhile: a full-throated defense of the powers and authorities of those in elected office, as set under the U.S. Constitution, and how that stance proved inconvenient to many in the political realm in recent years; ESPN suddenly loses its voice when it comes to covering the NBA’s dispute with China.

The Powers of an Office Don’t Change Depending on Whether You Like the Officeholder

The powers and authority of an elected office do not change depending upon whether you like or agree with the person in that office.

This means that when the House of Representatives or one of its committees requests documents or testimony or issues a subpoena, an administration can’t simply ignore the request — or send an eight-page letter from lawyers that amounts to a middle finger.

It doesn’t matter if the administration officials insist there’s nothing important in the requested documents, or if the administration says the demand for the documents is just a “blatant partisan maneuver to discredit the White House in an election year.”

In the coming days, you’re going to hear members of Congress outraged at the White House defiance of a coequal branch of government. They will argue that the refusal to comply with demands amounts to a coverup of a crime, a violation of the Constitution, and that resisting officials like the attorney general “knows the answers are there because he’s the one who has the documents that contain the answers we’re looking for. He’s the gatekeeper here, and if he won’t give us the information this institution needs to do our duty, our constitutional duty, then we will use every legal and constitutional tool that we have to get to it.”

You’re going to hear members of the president’s party declare that “this is a witch hunt, pure and simple, Mr. Speaker, and it has no place in this House.” They will howl that the fight “is about politics” and the opposition “doing whatever it takes to attack the administration, no matter the issue, no matter the cost.”

Members of the president’s party will contend that perhaps the fight is the point, that the outcome matters less to the House majority leaders than assuring their base that they’re fighting the president with everything they’ve got: “Under this majority, everything has to be a fight — everything. Everything has to be a confrontation. Everything has to be a showdown. And I get the politics. I understand this is an election year. But this goes way, way too far. It is just wrong.” The president and his allies will argue that the opposition party’s base voters never recognized the preceding election’s results, and furious grassroots activists believe that the president isn’t really legitimate, and that thus they cannot possibly honor a request driven by such unhinged and extreme motives.

And in the end, it will all result in the House finding Eric Holder in contempt.

Oh, I was talking about former attorney general Eric Holder’s refusal to turn over documents to Congress about Fast and Furious back in 2012; what did you think I was talking about?

The thing is, back then a lot of folks seemed to think Holder had the right to refuse to turn over those documents, and that the subpoenas were somehow illegitimate or unlawful because of what they claimed was blatant partisanship and bad faith demonstrated by the Congressional majority. (The fact that 17 House Democrats agreed with the GOP majority was conveniently ignored.)

The Atlantic’s David Graham declared, “There is a strong whiff of election-year fishing to this case.” The New York Times editorial board denounced the GOP for “shamelessly turning what should be a routine matter into a pointless constitutional confrontation.” Washington Post columnist Eugene Robinson thundered the contempt vote against Holder was “a partisan witch hunt by House Republicans,” “without legitimate cause,” and that Darrell Issa was trying to “manufacture something that can be portrayed as a high-level Obama administration cover-up.”

Rep. Jerry Nadler didn’t vote on the contempt charge; he walked out during the vote, calling the effort “shameful” and “politically motivated.” More than 100 Democrats joined him in refusing to vote. Nancy Pelosi also called the contempt vote “shameful” and contended that it was really designed to suppress Democratic turnout in 2012: “These very same people who are holding him in contempt are part of a nationwide scheme to suppress the vote. They’re closely allied with those who are suffocating the system: unlimited special interest secret money.” To Pelosi, it was simply unthinkable that House Republicans could have wanted to see Department of Justice documents relating to Fast and Furious for any legitimate reason.

Just to be clear, back in 2012, a lot of people thought it was just fine if an administration and its officials refused to turn over documents because they thought the members of Congress investigating them were a bunch of partisan hacks.

When Holder defied Congress, a lot of people cheered. When Congress held him in contempt, a lot of people thought Holder should wear it as a badge of pride.

A Wired headline declared, “Holder Held in Contempt of Congress, Which Means Almost Nothing.” Admittedly, a big reason for the lack of consequence was the fact that the executive branch official in charge of enforcing contempt of Congress against Attorney General Eric Holder was . . . Attorney General Eric Holder. (“Officer! Arrest that man looking at you in mirror!”)

Back then, we could have had a broad bipartisan consensus that even the biggest, dumbest partisan hack is entitled to the full powers and authorities of the office. We could have all agreed that even if a committee chairman has a bigger axe to grind than Paul Bunyan, that didn’t make compliance with requests for documents, subpoenas, or testimony optional. We could have agreed that congressional oversight of the executive branch was an important tool against bad decisions, corruption, and coverups, and that because of its importance, oversight by a lawmaker we thought was too partisan was still better than brazen disregard and defiance of that oversight.

But congressional Democrats and their allies in the media didn’t make that choice. They established the argument that some defiance of Congressional subpoenas is okay, as long as the executive branch believes that the Congressional investigators are being unfair. And now, here we are.

No, the president of the United States and his administration should not refuse to cooperate with a House impeachment effort in any way, shape or form. But we didn’t get here overnight. The power and authority of an elected office do not change depending upon whether you like or agree with the person in that office — and that applies to the current president, too.

If you want an imperial presidency when your guy is in charge, you have to live with the consequences of an imperial presidency when the other guy is in charge. From the founding of the United States legal system to 1963, there were no judicially imposed nationwide injunctions against any federal policy. During the eight years of the Obama administration, judges imposed 20 national injunctions. In the less than three years from the start of Trump’s presidency to September 2019, judges have imposed 40 national injunctions, including ones blocking administration changes to the DACA program, the question about citizenship on the national census, and changes to the temporary protected status of immigrants.

The good news for the administration is that sometimes some superior court will look at the national injunction and rule it unjustified. As the Republican Policy Committee notes:

. . . on July 26 the Supreme Court stayed an injunction from a California federal district court that would have prevented the Trump administration from repurposing appropriated funds to build a border wall. Second, on September 11 the Supreme Court stayed a nationwide injunction against the Trump administration’s new rule requiring asylum seekers who cross the U.S.-Mexico border to apply for asylum in Mexico or another third country before applying in the United States. These decisions did not resolve the underlying lawsuits, but did allow the federal government to move forward with its policies. In addition, on June 26, 2018, the Supreme Court stayed a district court injunction against the Trump administration’s travel ban against people from several nations, which allowed that policy to continue.

There’s this really great document under glass at the National Archives that spells out what the powers of Congress and what the powers of the executive branch are. Some folks in Washington should check it out sometime, they would learn a lot.

ESPN: The Worldwide Leader in Not Saying Anything That Could Offend the Chinese Government

Of course: “Chuck Salituro, the senior news director of ESPN, sent a memo to shows mandating that any discussion of the [Houston Rockets general manager] Daryl Morey story avoid any political discussions about China and Hong Kong, and instead focus on the related basketball issues. The memo, obtained by Deadspin, explicitly discouraged any political discussion about China and Hong Kong. Multiple ESPN sources confirmed to Deadspin that network higher-ups were keeping a close eye on how the topic was discussed on ESPN’s airwaves.”

Someone asked whether my grumbling about ESPN’s reluctance to discuss the controversy that started China’s sudden fury at the NBA amounts to the position of, “Stick to sports, unless I deem your sports-related political stance worthy.”

Obviously, I’m never wrong. First, as the Deadspin article above makes clear, you end up with sports-focused talking heads referring to “the issue” or “the controversy” without ever saying what the issue or controversy is. Sure, most ESPN watchers probably have at least a vague sense that people in Hong Kong are protesting something, but this is just bad journalism, to deliberately speak around what set off the controversy. This turns the protests in Hong Kong into Voldemort, the conflict-which-must-not-be-named.

Secondly, is there a demographic of American sports-watchers or ESPN viewers who would be offended, bothered, or outraged by discussion of protests in Hong Kong, or concentration camps, or brutal crackdowns?

Because there are demographics of American sports-watchers and ESPN viewers who are offended, bothered, or outraged by discussion of Caitlyn Jenner being a new icon of womanhood and courage, or Bob Costas telling us we need stricter gun-control laws at halftime, or that Colin Kaepernick is the new Rosa Parks, or highly-charged political topics like that. Maybe those discussions are important enough to be worth offending some viewers. If they are, then the NBA’s relationship with a regime running concentration camps would certainly be an important enough topic.

There are demographics that are offended, bothered, or outraged by discussion of protests in Hong Kong, or concentration camps, or brutal crackdown, but those demographics are the Chinese government and the Disney executives who want to make billions of dollars in China but who need the continued approval of those Chinese government. Who is ESPN designed to serve? Its viewers, or the leagues that it covers?

In other words, there’s “sticking to sports” because your viewers want it, and don’t want to watch political debates that they can get on any news channel. And then there’s “sticking to sports” because your corporate parent company’s financial concerns.

ADDENDA: Yesterday I wrote that we were not exporting our values to China, but that instead we were importing their authoritarian values to the United States of America.

Last night, two fans with pro-Hong Kong signs were removed from a preseason NBA game and ejected from the arena.

In Philadelphia.


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