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Going Ballistic: What the Democrats' 'Subpoena Cannon' Means for Trump

December 10, 2018 in Economics

By Ilya Shapiro

Ilya Shapiro

With Democrats seizing the House and Republicans keeping the
Senate, bills beyond the proverbial post-office-naming will be
hard-pressed to make it out of both chambers in the next Congress.
The threat President Trump faces from Democrats, then, isn’t
legislative obstruction, but the ready-aim-fire of the
opposition’s “subpoena cannon.”

That’s the term one senior Democratic source used last
month in describing to Axios the opposition’s main anti-Trump
weapon. Not all of the investigatory weapon’s payload will be
fired at once, but the appetite for “resistance” is
strong and will tie up significant White House and agency
resources. (Full disclosure: My wife is a lawyer in the House
general counsel’s office, but hasn’t participated in
any discussions regarding the Democrats’ plans.)

In and of itself, there’s nothing wrong with spending time
on congressional oversight. Indeed it’s a salutary check,
flowing from the “legislative powers” that Article I
grants Congress. The Framers assumed Congress would follow the lead
of the British House of Commons in questioning executive action.
James Wilson, a delegate to the Constitutional Convention and
future Supreme Court justice, had written that members of
parliament were considered “grand inquisitors of the realm.
The proudest ministers of the proudest monarchs have trembled at
their censures.” Accordingly, George Mason argued at the
Convention that members of Congress “must meet frequently to
inspect the Conduct of the public offices.”

When the first Congress convened in 1789, the House established
a select committee to investigate the country’s accounts
during the American Revolution, to clear Robert Morris, the
superintendent of finances. In 1792, the House authorized a special
committee to investigate the military defeat of General Arthur St.
Clair. President George Washington ultimately agreed on rules of
disclosure that formed the early basis of what we now know as
“executive privilege.”

And so it went, with the Supreme Court eventually determining
that it was constitutionally kosher for Congress to seek
information when crafting or reviewing laws and overseeing federal
programs — but that Congress must confine itself to
“legislative purposes” and avoid purely private
matters.

Congressional authority here ultimately boils down to the
subpoena power: compelling the production of documents or
appearance of witnesses, on pain of contempt and referral to
federal prosecutors. In practice, few subpoenas actually issue
— and even fewer are enforced through legal process —
because committee staff and the target’s lawyers negotiate
some sort of resolution that narrows the scope of information or
questioning sought. For example, former FBI director James Comey
just this week withdrew his motion to quash a House deposition
subpoena because he “reached an acceptable
accommodation” for voluntary testimony, with a public
transcript to be made available within 24 hours.

Which brings us to the “cannon.” Axios counted
“at …read more

Source: OP-EDS

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