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Saturday, May 26, 2018

Contempt and the recalcitrant President

Paul Rosenzweig at The Atlantic games out what would happen if Robert Mueller subpoenas the President and the President refuses to comply.*

[*] TL/DR: A stalemate in which nothing can happen legally and the only hope is a political solution. This is where Trump's attacks, and GOP buy-in on those attacks, on Mueller and on the courts matter. Neither Mueller nor the courts have any credibility, so Congressional Republicans will not see disobedience as a crisis; they will see it as a heroic stand against an overweening prosecutor and judge.

But in considering the first step of civil contempt, Rosenzweig jumps right to the prospect of jail and the impossibility of pulling that off (because the Secret Service would never allow the U.S. Marshal to arrest the President, at worst resulting in a gun fight between officers of the two agencies). But the court has discretion to enforce contempt--to attempt to compel compliance--by other means short of jailing. One is monetary fines. So could the court impose a series of escalating fines against Trump? Could those be collected without having to go through and past the Secret Service, as by by attaching some assets? Would the threat to his wallet compel the President to comply? Or to do something really stupid?

Posted by Howard Wasserman on May 26, 2018 at 02:32 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


The US Marshalls, just like the Secret Service, are part of the executive branch and report to the president and would not have any independent authority to arrest him no matter what the courts ordered, if he ordered them to stand down. So there is no possibility of a gunfight or anything like that. There is a possibility of Trump thumbing his nose at the court, which would create a constitutional crisis. The question is: Why would Mueller force such a crisis?

Posted by: Douglas Levene | May 27, 2018 12:14:34 PM

Interesting link or article . Many "movies " here ( by the way , he wrote that he is not really serious with that scene of gunfight with the secret service ) .

But first he writes , that :

" Trump receives a subpoena and fights it to the supreme court …."

Later he writes , that he may disobey it . So :

In sum , once Trump disobey such order or subpoena , he would become simply an illegitimate president . That is to say , that the executive branch or agents and agencies therein , may disobey him simply . Otherwise , how and why to seek at first place a refuge or remedy at the supreme court ?? Why would he do it ??

Moreover :

He writes that the court , has no way to force him to testify . Yet , the court according to him , can send Marshals service to arrest him .So , that is a hell of a way to enforce appearance before the court . For , no one is above the law . This is the meaning of the rule of law . And what is the law or how to comply with it , this is up to the courts . They have the last say on it . So , if courts decide so , we don't have any issue . It is hard to understand , how can one reach such contradiction in terms ??

Finally , according to him all opinions support that sitting president , can't be indicted , but in sum there are 4 . And , 3 deny such possibility , and one supports it . Here I quote very good article in " The Atlantic " by Garrett epps I have read yesterday , summing it so I quote :

Start with the memos—one issued by the Justice Department’s Office of Legal Counsel (OLC) during the waning days of the Nixon presidency; a contemporaneous memo by the late Robert Bork, then solicitor general, advising a district court that a vice president could be indicted; a 2000 opinion by the OLC reaffirming the 1973 opinion; and, finally, a 1998 opinion by a lawyer in Kenneth Starr’s Office of the Independent Counsel investigating President Bill Clinton.The results are: three “no indictment” opinions, and one “yes indictment” opinion. Perhaps by coincidence, the three “no indictment” opinions were issued by executive-branch lawyers (who work for presidents), while the “yes” opinion came out of the Starr probe, which pursued Clinton with a passion and finally got him impeached.

Here :



Posted by: El roam | May 26, 2018 3:39:22 PM

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