Regarding the McGahn situation, and perhaps the upcoming Hicks situation, we hear of the idea from TrumpWorld that His Greatness’s power to shut down the House’s getting their papers and testimony is a matter beyond that of “privilege,” but of an even higher power called “absolute immunity” from having to respect Congress’s investigatory power, at all. Some of the usual pundits we hear on TV have derided the idea of “immunity,” as something His Greatness’s brood just invented, and absurd. Nixonian “executive privilege,” on the other hand, is something more-or-less recognized by law, but with a power much narrower than what’s claimed by White House residents who have a lot to hide, and something you have to argue about that.
“Privilege” would apply to having to answer certain questions. But this “immunity” idea would mean the witness is such a super-special person (basically an adviser of some kind to the prez) that s/he, in his/her whole person, is someone no subpoena can stick to.
Angered by the unproductive yammering today about Mueller’s public verbalization, a lot revolving around the so-called “Justice Department” policy that a prez has sovereign immunity from accounting to criminal law, I got to wondering about these memoes by something called “Office of Legal Counsel,” which is what actually produced the so-called policy - - question remains whether it is a “Justice Department policy” - - or, first of all, what that term would mean.
This brought me to an OLC memo just written days ago, May 20, 2019, specific to the case of McGahn, but also to other Trump “advisers,” whatever that word means. It is a horror of anti-democracy, anti-republicanism, anti-Americanism. It has the stink of medieval, absolutist political theory, that we were told in grade school “we” freedom-loving Americans had smashed in 1775 – 1788. So does the 2000 sovereign immunity memo, which is here.
If you have a strong stomach, this week’s Trump-McGahn memo is here.
It’s couched in lawyer five-dollar words, to try to bowl people over with a “learned” look. But persevere. Awfully though, it does give references saying that this idea of “immunity” has been asserted by residents for decades. And lest anyone think that Dem prez’s have been above such garbage, there are references to Clinton/Reno products, and products under Obama. A lot of the foundational pseudo-“precedent” was gushed out by such pillars of democracy, while Asst. Attorneys General, as Scalia, and Nixon’s shill Rehnquist. But, did Truman really say this, as quoted on pp. 15? “((It is)) “just as important to the independence of the Executive that the actions of the President should not be subjected to the questioning by the Congress after he has completed his term of office as that his actions should not be questioned while he is serving as President.”
The point there was that Congress surely could not subpoena The Royal Person itself, therefore His advisers neither, who are Of One Divine Substance. So, it is no different if any of these deities are no longer employed by the people of the USA … (Barf.)
As you wade through this sewage, you soon notice that this “OLC” is mainly quoting itself, as well as other writings by associates of presidents. Its diktat is stentorian, and threatening, like when it notes the possibility of what is euphemistically called “inherent contempt” (Congress putting its own handcuffs on those who commit contempt of its subpoenas): “The constitutional separation of powers bars Congress from exercising its inherent contempt power in the face of a presidential assertion of executive privilege. An attempt to exercise inherent contempt powers in such a circumstance would be without precedent and ‘would immeasurably burden the President’s ability to assert the privilege and to carry out his constitutional functions.’” Basis for this? Itself.
They acknowledge one time where the question wound up in the courts, where this wild-ass, and totally unwritten (are you listening, haters of women’s abortion rights?) constitutional rule probably needs to get dealt with. It concerned Dubya’s Harriet Miers, who had McGahn’s job, and this May 20 memo acknowledged that this notion of “immunity” lost, in the district court. See p. 12. But it says that Dubya appealed, and the matter kind of went away by a settlement. So it somehow doesn’t matter that the one court decision was a loser for these monarchists. Back to quoting itself.
What is this “OLC”? What law says that its opinions are “binding” (meaning, the real, final law) against the USA, or anybody else? I know of no statute (thing passed by Congress) approving of such shenanigans. This short circuiting of Article V, which says how to amend the Constitution, such as to restore the Hanoverian monarchical “immunities” — — by writing memoes. And the only regulation I know of about its supposed general powers, by the Justice Department of which it is a creature, is the short, ambiguous Title 28, Code of Fed Regs sec. 0.25, here.
So what would Ben Franklin - - the maker of my title quote - - say about this OLC? “Go fly a kite, old man,” OLC would say to him.