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Monday, April 22, 2019

President Trump meets the Speech or Debate Clause

With this complaint seeking to enjoin a subpoena directed towards the Trump Organization's accounting firm. The pleading tries to argue that there is no legitimate legislative purpose behind the subpoena, because "oversight" is not, in the vacuum, legitimate legislative activity. I cannot believe a court would be anything but highly deferential of a congressional committee's determination of what is within its legislative jurisdiction. Plus, Trump's argument basically amounts to "this subpoena is not legitimate because there are too many subpoenas," such that Congress loses the power of oversight when the President engages in too much misconduct.

Posted by Howard Wasserman on April 22, 2019 at 01:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


just to illustrate the issue of proportionality and measurement, especially when dealing with acting president:

" A New York federal judge has appointed an independent official in a criminal inquiry against US President Donald Trump's personal lawyer Michael Cohen.The so-called special master, an independent court-appointed official, was named as ex-judge Barbara Jones.She will review documents seized from Mr Cohen by the FBI to determine if they include confidential communications with his legal clients. "

End of quotation:

So, such special master, is taking care of not harming unnecessarily confidential documents of the president.




Posted by: El roam | Apr 24, 2019 12:52:14 PM

And Wasserman, don't forget one " negligible " issue. And it is that one of " proportionality " and " measurement ".It is one thing to subpoena information or documents, concerning one well defined issue or case, and narrowly so. Another, to subpoena, whatsoever, everything including everything, and harming unnecessarily parties( let alone third parties).

If the same goal or end, can be achieved with lesser offending and harming means, why to issue overwhelming requests ?? And if indeed, how a person shall be redeemed ?? He must address the court for remedy. Fixing, narrowing, redacting, focusing, everything for:

Proportionality and measurement. The same end, with lesser offending means(as indeed discussed in Eastland).


Posted by: El roam | Apr 24, 2019 11:06:19 AM

Wasserman, but the immunity, can be held, only as long as it is within the proper scope of legitimate legislative / investigative power of Congress. For that, the court, must observe and scrutinize the subpoena itself and confirm that it is so. In the case of Eastlnad V. US servicesmen's fund, the Supreme court, held that indeed, it is within such scope. Not to forget:

The district court held against the immunity, and there is also a dissenting opinion of justice Douglas, here I quote:

I would affirm the judgment below.

The basic issues in this case were canvassed by me in Tenney v. Brandhove, 341 U.S. 367, 381 -383 (1951) (dissenting opinion), and by the Court in Dombrowski v. Eastland, 387 U.S. 82 (1967), in an opinion which I joined. Under our federal regime that delegates, by the Constitution and Acts of Congress, awesome powers to individuals, those powers may not be used to deprive people of their First Amendment or other constitutional rights. It is my view that no official, no matter how high or majestic his or her office, who is within the reach of judicial process, may invoke immunity for his actions for which wrongdoers normally suffer. There may be few occasions when, on the merits, it would be appropriate to invoke such a remedy. But no regime of law that can rightfully claim that name may make trustees of these vast powers immune from actions brought by people who have been wronged by official action. See Watkins v. United States, 354 U.S. 178, 198 (1957).

End of quotation:

So, the Supreme court already held that the power of Congress is not unlimited. If unjust injury is proven, remedy must be available. In those cases where the power of Congress is not unlimited ( as alleged in the current case of Trump here ) courts must intervene.

And here, not only that court should observe the case first ( for it is not procedural immunity, but, substantive one, otherwise, the courts, would " in limine " reject it ) but:

It is an acting president, and criminal investigation concerning him personally.So, here we deal with different animal.Let's wait and see. What counts, is that the court shall have to deal with it finally, and concretely, notwithstanding final result.And even the Supreme court held that, I quote:

" The immunities of the Speech and Debate clause were not written into the constitution simply for the personal or private benefit of Members of Congress ....

End of quotation:

And,an arbitrary and capricious acts,are outside the scope,here I quote from Gravel v. United states ( within Eastland ):

"[N]o prior case has held that Members of Congress would be immune if they executed an invalid resolution by themselves carrying out an illegal arrest, or if, in order to secure information for a hearing, themselves seized the property or invaded [421 U.S. 491, 508]   the privacy of a citizen. Neither they nor their aides should be immune from liability or questioning in such circumstances."From this respondents argue that the subpoena works an invasion of their privacy, and thus cannot be immune from judicial questioning. The conclusion is unwarranted. The quoted language from Gravel referred to actions which were not "essential to legislating."

End of quotation:

So, let's first observe , whether it is within or out of such scope.But for that, the court will have to deal with is first of course.


Posted by: El roam | Apr 24, 2019 9:26:09 AM

But again: You can't sue Congress or a member of Congress to get there. That is why this lawsuit will be dismissed and it will be dismissed on Speech-or-Debate grounds. And that is the difference between Watkins, where the Court overturned a conviction, and Eastland, where the Court dismissed the lawsuit--an action to enjoin a congressional subpoena as violating the First Amendment--on immunity grounds without even considering the possibility that the subpoena infringed on First Amendment rights.

Posted by: Howard Wasserman | Apr 24, 2019 7:43:44 AM

And in accordance, what the complaint asks the court among others, is, I quote:

a. A declaratory judgment that Chairman Cummings’ subpoena is invalid and unenforceable;

b. A permanent injunction quashing Chairman Cummings’ subpoena;

c. A permanent injunction prohibiting Chairman Cummings and Mr. Kenny from taking any actions to enforce the subpoena, from imposing sanctions for noncompliance with the subpoena, and from inspecting, using, maintaining, or disclosing any information obtained as a result of the subpoena;

End of quotation:

And all that, results, in clear interference, with debate and speech of Congress. This is the inherent duty of courts.


Posted by: El roam | Apr 23, 2019 11:59:03 AM

Wasserman, what you write is irrelevant. What is relevant, is that Congress is subjected to judicial review. And as in our case, the judicial review, should direct the Congress, how to conduct investigation or what is the constitutional and legal scope of it. So, what they do in their investigation, and as related to speech and debate clause, doesn't bar the court, from directing them and barring them if needed from their speech and debate rights.

I shall quote from the ruling (Watkins, from the syllabus) here:

(r) Due process requires that a witness before a congressional investigating committee should not be compelled to decide, at peril of criminal prosecution, whether to answer questions propounded to him without first knowing the "question under inquiry" with the same degree of explicitness and clarity that the Due Process Clause requires in the expression of any element of a criminal offense. Sinclair v. United States, 279 U.S. 263. Pp. 208-209.

End of quotation:

That is to say, that the court, intervenes, in the debate and speech of the Congress, and dictates and reviews the appropriate manners for conducting investigation ( if for example , due process is abused).Even if it is not arrest, or testimony in court, the court intervenes, and directing and dictating the Congress about it.


Posted by: El roam | Apr 23, 2019 11:48:10 AM

But you can't sue Congress or a member of Congress to get there. The accountant could ignore the subpoena and challenge its validity as 1) a defense to a Contempt of Congress charge (which is what happened in Watkins--he was prosecuted for refusing to answer) or 2) as a defense in an action to enforce the subpoena initiated by the US Attorney at Congress' request. That is the entire point of Eastland.

Posted by: Howard Wasserman | Apr 23, 2019 10:55:13 AM

And not to forget. This is a criminal investigation ( or alike ). What members of Congress here are doing , is to explore (although preliminary)potential criminal conduct of the president. Now , this is not a game. Conducting such investigation, demands skills and knowledge and practicality (See Muller). If not,the results,would be overwhelming subpoenas for whatever information.Finally,it can result in:

Harming constitutional rights of third parties.Exposing unnecessarily private affairs.Problems of admissibility in court.Civil action for torts.

Criminal affairs typically,are not handled by laymen,even not Congress members.This is a problem.

Courts,must do some order here.This is an acting president.Can't be harassed at random here.Everything must be focused and proportionate and well founded.


Posted by: El roam | Apr 23, 2019 9:22:23 AM

Here I quote from:

Watkins v. United states(Supreme court):

We start with several basic premises on which there is general agreement. The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste.


But, broad as is this power of inquiry, it is not unlimited. There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress.

End of quotation :

So, we can clearly read : the power of the Congress is limited. The courts can direct and review the activity of the Congress ( so, speech and debate is irrelevant as such).And:

As in that current case of Trump,the Congress wants a third party, private entity ( accounting firm of Trump ) to reveal and disclose information.We have an issue here. And court shall decide in light of the given circumstances.That's it!!

Here to the ruling:



Posted by: El roam | Apr 23, 2019 8:56:54 AM

If that's is what you want to believe, go for it. The rest of us will understand that the point of the Clause is that members of Congress cannot be held to answer anywhere other than Congress (such as in a court) for engaging in conduct that is "legislative" in any respect, regardless of motive. That means a member can read classified information on the floor of the Senate; can subpoena someone even when that subpoena might violate the person's constitutional rights or be done for a personal or otherwise vindictive purpose; or can defame someone.

You are right that this turns on what is legislative. But the courts are going to be highly deferential. And investigating and overseeing the other branches is legislative. And motive does not matter.

Posted by: Howard Wasserman | Apr 23, 2019 8:49:31 AM

Absolutely not Wasserman. This is a court. And that's it. And a court, can review anything whatsoever, for this is the meaning of the ruling of law : having judicial review. Even members of Congress, can't do what ever they wish. They must act within their power limit. If not, the court shall intervene, as in many other cases. And the issue, presented in that complaint, is precisely this one:

Whether, such investigative activity, is legislative one. This is a problem here. Not so clear legally and constitutionally ( differentiated from explicit impeachment of course ).Too complicated right now.

I shall maybe illustrate latter....


Posted by: El roam | Apr 23, 2019 8:39:06 AM

This is all about Speech or Debate--"for any Speech or Debate in either House, they shall not be questioned in any other place." This means members of Congress cannot be sued (and this lawsuit must be dismissed) for performing legislative functions, defined to reach anything within the jurisdiction of the legislature, including investigation and oversight of other branches, regardless of the motive behind those functions.

Posted by: Howard Wasserman | Apr 23, 2019 8:19:19 AM

Interesting, but the speech and debate clause, has nothing to do here, for the complaint, asks the court for remedy against the house or members of the house. If it is the court, it is legal whatsoever. It is the inherent duty of the court, to review the house or the legality of its activity.

However, the house has investigative powers of course. For, there is no debate, that it can start the process of impeachment ( Article I : "...shall have the sole Power of Impeachment ). And how impeachment, without investigation, testimonies, information and so forth... ?? They can't vote blindly !

In accordance, the House, can't engage in " fishing expedition " here. Must prove, linkage, between subpoenas, and impeachment at the end of the road.If what is claimed in this complaint is factually correct, we have here severe suspicion, that it is indeed a " fishing expedition " politically motivated as such.Just to quote some democrat members :

" We're going to have to build an air traffic control tower to keep track of all the subpoenas flying from here to White house"

Or :

" turn Trump's life upside down " or " make Trump's life living hell ".

They can by the way, even ask for information prior to his presidency, provided, that there is strict linkage, with impeachment at the end of the road, and based upon, reasonable basis or suspicion, for it would serve, or shed light on the purpose of current conduct ( or recent conduct ) of the president. But, the accuracy of financial reports of Trump, whatsoever, asked from his accounting firm, with no strict focus on certain precise investigation. That is by all means, overwhelming and senseless with all due respect.


Posted by: El roam | Apr 22, 2019 3:11:13 PM

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