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The days of country over party are a relic of the past

Do you remember when President Obama left a letter of congratulations and encouragement for the incoming president, Donald Trump? Do you remember when it was likely that Vice President Al Gore had won the 2000 presidential election but he nevertheless conceded to George W. Bush to avoid a constitutional crisis? Do you remember when Democratic presidential candidate Hillary Clinton voluntarily testified before Congress for 11 grueling hours regarding the Benghazi investigation?

Kimberly Atkins Stohr is 100 percent correct in her Jan. 14 Opinion column, When it comes to subpoenas, Congress must use its power or lose it. The days of country over party and doing the right thing are a relic of the past, at least for now. A prime example is that former president Trump and his Republican colleagues have made it the norm to refuse to voluntarily appear before Congress and voluntarily produce documents.

The House committee investigating the Jan. 6, 2021, insurrection issued a fresh set of subpoenas Tuesday, including for Trump aide Rudy Giuliani. Congress must use its subpoena powers and the courts to the full extent to enforce its constitutional authority to pursue this investigation or risk permanently losing this fundamental constitutional check and balance. Given the nations dangerous shift toward authoritarianism, this is a particularly important step right now.

Gil Hoy

Brookline

There has to be a penalty to hold over those who refuse to testify

Kimberly Atkins Stohr warns, quite prudently, that we can lose congressional subpoena power if we dont use it. But she omitted one fundamental from her otherwise compelling column: namely, that Congress seems to have forgotten the literal meaning of the Latin sub poena: under penalty. That is, an individual summoned to testify at a hearing must do so under penalty of noncompliance. Until Congress can distinguish proactively between the power of a subpoena and a voluntary appearance, the discovery process for investigations of this sort will continue to stagnate.

Ira Braus

Pembroke

Hillary Clinton set the example for showing up

I am disgusted by the Republican toadies of former president Donald Trump, including aides and members of Congress (most of them male) who are refusing to testify before Congress. Its interesting that, as Kimberly Atkins Stohr notes, Hillary Clinton, then secretary of state, sat through nearly two years of political harassment by Republicans, and never once refused to testify. She has more mettle than all of these others.

Paul Miles-Matthias

Seekonk

House panel can issue an interim report while it keeps searching for truth

The article House panel unsure of pressuring Pence, GOP lawmakers (Page A4, Jan. 17) frames the question of issuing a subpoena to former vice president Mike Pence and others as a binary choice: Hold high-ranking officials accountable, or issue a prompt report. Its feasible to do both: Issue subpoenas and fight for them in court, while issuing an interim report while any legal challenges are being considered.

Further, while its not permitted in a criminal court to use an invocation of the Fifth Amendment as an indication of guilt, the House panel is not a court, and these potential witnesses havent asserted Fifth Amendment protection. Its therefore entirely appropriate to see a refusal to comply with a subpoena as exactly what it is: an attempt to continue the ongoing attacks on our democracy.

Peter Squires

Cambridge

Excerpt from:
Without subpoena push, Jan. 6 investigation is going nowhere fast - The Boston Globe

A 21-year-old Chicago man accused of stealing several items from a Thorntons Gas Station was charged with resisting arrest after refusing to comply with a police officer early on the morning of Dec. 16.

Forest Park police were directed to the alleged thief who was walking away from the gas station in the 600 block of Harlem Avenue just before 2 a.m. The suspect was taken to the ground by officers after allegedly ignoring multiple commands to stop.

Once he was handcuffed, the man was combative. When asked for his name and date of birth, the man replied Fifth Amendment numerous times. None of the items allegedly stolen from the gas station were located in the mans possession.

A fingerprint analysis at the Forest Park Police Department revealed the mans identity. He was charged with resisting a police officer.

This information was obtained from police reports filed by the Forest Park Police Department. Unless otherwise indicated, anybody named in these reports has only been charged with a crime. These cases have not been adjudicated.

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Alleged thief tries 'Fifth Amendment' with cops - Forest Park Review

Tom Blong letter| Abilene

This letter is in response to the op-ed piece by John Powell (Reporter-News, Dec. 4).

More: 'Because we can' doesn't make it right

The argument for abortion is very similar to the argument for slavery.

The U.S. Supreme Court in the Dred Scott case of 1859 ruled that slaves were property and, under the Fifth Amendment, had no legal rights and their owners could do with them as they wanted.

The argument in Roe v.Wade uses a similar argument that the unborn child is property of the mother, who has the right to do whatever she wishes to it.

If you equate the womb to a plantation, you can see the similarities.

As a believer, it is my belief that life of a person starts at conception and, therefore, taking of this life is murder, as much as hanging of a slave is murder.

The John Powells of this world would have applauded the ruling of 1859.

Tom Blong, Abilene

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Tom Blong letter: Similarities of abortion and slavery - Abilene Reporter-News

In the face of record-breaking inflation, another COVID surge, a disastrous Afghanistan withdrawal, rising crime, and supply scarcity, the Democrat Party has decided to make a few hours of rioting at the U.S. Capitol its entire campaign platform, while ignoring months of riots that sent cities and small businesses up in flames from coast to coast.

Rioting in all its forms should be condemned, but the lefts bald willingness to overlook its own while targeting private citizens for peaceful protests that occurred independently from the events on Capitol Hill last January just makes its hysteria over Jan. 6 look desperate. Breaking into the Capitol was wrong, but it was not 9/11, the people involved are still entitled to the Fifth Amendment, and screaming threat to democracy! is not enough to rescue fumbling Democrats in the 2022 midterms.

If you dont think Democrats in government and the media are exaggerating when they call the unrest at the Capitol the biggest threat to democracy ever, here are five other things they insisted would bring down our system of governance.

When an elected majority in the U.S. Senate, including West Virginia Sen. Joe Manchin, determined not to pass President Joe Bidens Build Back Bankrupt plan, the left erupted in cries that this act of democratic governance was, in fact, threatening democracy itself.

Manchin is killing the Biden legislative agenda, and perhaps the future of American democracy too, tweeted MSNBCs Mehdi Hasan.

If Manchin is no on both BBB and voting, Biden is done. Democracy is hanging by a thread, observed Jennifer Rubin of the Washington Post. The Daily Beasts Wajahat Ali pined that Manchins decision not to vote for Bidens agenda reflects the need for massive structural reform and change. In its absence were a shell of a democracy.

The GOP Is a Grave Threat to American Democracy, ran a serious headline at The Atlantic in April.

Americans must get serious about fighting the Republican threat to our democracy, blared another headline in the Chicago Sun-Times, adding the party has become a corrupt force spouting violent rhetoric and plotting to overthrow our democracy.

Its not your grandfathers Republican Party now, unless your grandfather was a fascist, the pretentious subhead warns. The GOP is dangerous, and we must take action to make sure our children live in a free country.

The GOP has proven to be an even greater threat to US democracy than Trump in 2021, experts warn, said a headline from Insider, as if the allusion to experts blessed the piece with scientific objectivity.

We all know about the letter from the National School Boards Association to Attorney General Merrick Garlands Department of Justice smearing concerned parents of schoolchildren as domestic terrorists. The NSBA letter begged the DOJ to use domestic terrorism laws to go after parents who showed up to school board meetings to protest critical race theory, masking kids, and even rape in school bathrooms.

In response, Garland issued a directive to federal law enforcement and attorneys to address a disturbing spike in harassment, intimidation, and threats of violence against school administrators, board members, teachers, and staff who participate in the vital work of running our nations public schools.

An op-ed in the Mercury News said it even more bluntly: Attacks on school boards are a threat to democracy.

New York Magazines Eric Levitz threatened last month that If the Courts right-wing majority finds that it can continually push the boundaries of conservative judicial activism without undermining its own popular legitimacy, then the consequences for progressivism and popular democracy could be dire.

Two-thirds of the justices have now been appointed by a party thats won the most votes just once in the last eight presidential elections. The very existence of a court thats both so powerful and so far out of step with public opinion undermines the democratic values on which our system rests, added Brennan Center fellow Zachary Roth.

The bicameral design of our legislative branch, set up in Article I, Section 3 of the U.S. Constitution to ensure that Americans were represented based on both population size and state interests, is a threat, according to some unhinged predictions from the left.

The Electoral College, another institution hated by the left when it contradicts their desires, poses a smaller long-term threat to American democracy than the Senate, urged a Vox article, because the Senate undermines principles of equal democratic representation.

The Senate will continue to give small states, which tend to be rural and conservative, far more clout than their size deserves. Thats not just a problem for democracy in the abstract, the Brennan Centers Roth continues.

He goes on to indicate his real, politically-motivated problem with the founders design: Because these states are more likely to support Republicans, it gives the GOP a built-in advantage, and makes it all but impossible to achieve large-scale progressive outcomes in Washington, even those that are popular. Nevermind the fact that the 17th Amendment, ratified in 1913, already gave popular voters more control over the election of senators compared to the founders intended design.

So next time you hear a politician or pundit try to tell you that a few inexcusable hours of unruly behavior comprised the biggest threat to democracy in the nations history, remember theyre using similar language to condemn parents, political parties, our judicial branch of government, one of our two houses of Congress, and the very system in which an elected majority votes on proposed legislation. If you think the Jan. 6 rioters are the only target they want to destroy, you havent been paying attention.

Elle Reynolds is an assistant editor at The Federalist, and received her B.A. in government from Patrick Henry College with a minor in journalism. You can follow her work on Twitter at @_etreynolds.

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5 Things The Left Also Called A 'Threat To Democracy,' Such As Voting - The Federalist

The House select committee investigating the Jan. 6 Capitol insurrection which occurred a year ago this week is reportedly planning televised hearings in the coming months to share what its learned from the over 300 witnesses and tens of thousands of documents consulted thus far. Rep. Liz CheneyElizabeth (Liz) Lynn CheneyMyPillow CEO Mike Lindell sues Jan. 6 panel over subpoena for phone records Overnight Defense & National Security Nation marks 1 year since Capitol riot GOP attempts balancing act: Condemn Jan. 6, but not Trump MORE (R-Wyo.) herself an experienced lawyer and vice chair of the committee has signaled that evidence is mounting that former President Donald TrumpDonald TrumpPelosi on eve of Jan. 6: Capitol rioters 'lost' bid to stop peaceful transfer of power MyPillow CEO Mike Lindell sues Jan. 6 panel over subpoena for phone records Bipartisan Senate group holds call on elections amid reform chatter MORE might be guilty of obstruction of an official proceeding, which is a federal felony that can trigger up to 20 years in prison.

Theres no established legal or historical path from a congressional investigation to a criminal trial of a former president and for good reason. Presidents are special, and they enjoy numerous special privileges of the office. During the Trump years, debate swirled around the concept of executive privilege, and whether his status as president would immunize him from liability for actions taken both before and during his presidency. As the work of the select committee heats up, executive privilege could again loom large as has already been the case with the snubbing of subpoenas by former Trump adviser Steve BannonStephen (Steve) Kevin BannonGarland vows prosecutions 'at any level' over Jan. 6 Trump adviser Navarro: Rioters on Jan. 6 hurt plan to challenge election result Jan. 6: Five reasons Trump cannot hide behind executive privilege MORE and chief of staff Mark MeadowsMark MeadowsMyPillow CEO Mike Lindell sues Jan. 6 panel over subpoena for phone records Garland vows prosecutions 'at any level' over Jan. 6 Gorka sues Jan. 6 committee over phone records subpoena MORE.

Here are five reasons why an attempt by Trump to hide behind executive privilege regarding Jan. 6 should probably fail.

1. President Joe BidenJoe BidenPelosi on eve of Jan. 6: Capitol rioters 'lost' bid to stop peaceful transfer of power MyPillow CEO Mike Lindell sues Jan. 6 panel over subpoena for phone records Overnight Defense & National Security Nation marks 1 year since Capitol riot MOREs decision not to invoke executive privilege on Trumps behalf is likely fatal to any competing claim by Trump. With respect to the protection of military and state secrets, the U.S. Supreme Court in 1953 stated in United States v. Reynolds that the privilege belongs to the Government, and must be asserted by it; it can neither be claimed nor waived by a private party (which is Trumps status now). It is not to be lightly invoked, the court explained. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. No such formal claim has been lodged by Biden or Trump, for that matter in connection with Jan. 6.

Trump did initiate litigation over whether his assertion of executive privilege would supersede Bidens contrary decision under the Presidential Records Act for purposes of determining whether the select committee sees archived White House documents. But Trump roundly lost that bid in the U.S. Court of Appeals for the D.C. Circuit. Even if he succeeds in persuading the Supreme Court to take and reverse that case, a favorable ruling regarding archived records under the language of the Presidential Records Act would not necessarily protect Trump from a congressional or judicial subpoena for testimony. Theres only one president at a time under the Constitution, and in this moment, its Biden.

2. Executive privilege does not offer blanket immunity from legal process. Like the attorney-client privilege, executive privilege does not operate to immunize an individual from having to provide any and all testimony or records pursuant to a lawful subpoena. It only allows a recipients lawyer, during an interview, to lodge objections question-by-question and direct the witness not to answer those questions that call for privileged information. Former President Bill ClintonWilliam (Bill) Jefferson ClintonJan. 6: Five reasons Trump cannot hide behind executive privilege To save America, we need a council of presidents Jan. 6 is the GOP's fault line MORE testified in the Monica Lewinsky investigation under Independent Counsel Kenneth Starr, for example, even though he was the sitting president of the United States.

In this way, executive privilege is not unlike the much weightier Fifth Amendment ban on self-incrimination, which likewise anticipates that witnesses will show up for testimony and answer certain questions by invoking the Fifth rather than authorizing a blanket refusal to appear altogether. This is precisely why the Justice Department saw fit to indict Steve Bannon for contempt of Congress. He refused even to appear before the committee on grounds of executive privilege, which was not his right even if it had been formally invoked by the president.

3. Executive privilege did not protect President Richard Nixon from having to produce his Oval Office tapes in response to a subpoena on the theory that the public interest in knowing the truth outweighed his interest in secrecy. Information bearing on a bloody insurrection hardly warrants greater protection than the Watergate tapes that led to the untimely end of Nixons term in office. In United States v. Nixon, a unanimous Supreme Court explained in 1974: Neither the doctrine of separation of powers nor the generalized need for confidentiality at high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.

In short, executive privilege can be outweighed by other public interests and Congresss interest in investigating Jan. 6 may be one of them.

Indeed, in its 2020 decision in Trump v. Mazars, even the modern conservative-leaning court refused to extend executive privilege beyond its existing boundaries to protect Trumps private financial records from disclosure to a grand jury. This round, Trump shouldnt get greater protections than Nixon did, either.

4. Even if executive privilege applied to Trumps communications around Jan. 6, it may have already been waived. There arent a lot of cases discussing executive privilege. But there is a lot of law applying the related concept of attorney-client privilege. The rationale behind both is similar: Its good for presidents to have confidential communications regarding issues of national importance and for clients to have confidential communications with their lawyers about legal issues. If such communications were easily made public, people wouldnt have them to begin with, and the quality of the privilege holders decision-making would suffer.

But if a client allows a friend to listen in on a conversation with a lawyer, theres no reason to keep it confidential anymore. The inclusion of a third party is known as a waiver. In some jurisdictions, a waiver extends to the entire subject matter of the communication not just the actual statements overheard. Its been reported that Meadows already put some of what he discussed with Trump that day in his forthcoming book. If thats true, a court might deem any privilege around those conversations waived.

5. The attorney-client privilege has an exception for communications made in furtherance of a crime or fraud. So stoking an insurrection to interfere with the peaceful transfer of presidential power should qualify for purposes of executive privilege, too. A client cant obtain a lawyers advice on where to bury a body and then hide behind the attorney-client privilege if asked about that conversation. The need for airing of evidence of a crime outweighs the clients need for confidentiality. The same exception should extend to communications with a president regarding an attempted overthrow of a legitimate election.

What many people dont seem to understand about executive privilege is that its not an insurmountable barrier to the publics right to know about presidential communications. Its merely a policy gloss on presidential prerogatives that appears nowhere in the actual Constitution. It is accordingly fickle. It is not a right, but a privilege that courts have extended to presidents out of respect for the office. Presidents who fail to show reciprocal respect for the office arguably forfeit access to its privileges.

Kimberly Wehleis a professor at the University of Baltimore School of Law and author of How to Read the Constitution and Why, as well as What You Need to Know About Voting and WhyandHow to Think Like a Lawyer and Why (forthcoming February 2022). Follow her on Twitter:@kimwehle

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Jan. 6: Five reasons Trump cannot hide behind executive privilege | TheHill - The Hill