Friday, February 28, 2020

More Winning? WH Counsel And DNI Version

Two developments late today. CTH has pretty good coverage of both, but I'd like to offer a few additional comments.

First, President Trump got a nice victory in court. A three judge panel of the DC Circuit--the most influential in the country--held 2-1 that former White House Counsel Don McGahn did not have to testify for the Impeachment Theater. It's true that the Dem House can appeal to the full Circuit as a next step. I found the panel ruling to be pretty much a no-brainer, and so I regard further appeals as ultimately more losing for Nadler, Pelosi, and Schiff. I just don't see the federal judiciary as about to put the House in charge of the US Government--which would be the strong tendency if the courts should rule in favor of the Dem House's various legal initiatives. As I've said before, Pelosi has openly stated that her Dem House is superior to the Senate, and it doesn't take a legal genius to figure out that she also thinks her Dem House is superior to the Executive Branch and the Judicial Branch.

The opinion notes some of those raminfications--from Politico:

Friday's majority opinion, written by GOP appointee Thomas Griffith, goes to the heart of long-running battles over the power balance between Congress and the White House that have played out during Trump’s tenure. 
Echoing arguments Justice Department attorneys had made in the case, Griffith warned that allowing the House to use the courts to enforce the subpoena against McGahn would lead to a flood of hard-to-resolve suits pitting congressional imperatives against executive branch interests. 
“The walk from the Capitol to our courthouse is a short one, and if we resolve this case today, we can expect Congress’s lawyers to make the trip often,” wrote Griffith, an appointee of President George W. Bush. 
Griffith said opening the courts to that kind of litigation would also discourage lawmakers and the executive branch from the more traditional method of resolving such subpoena fights: negotiation. Congress has long used several tools — cutting off funding, holding up presidential nominees, even impeachment — to help persuade the executive branch. 
Adjudicating these disputes would displace this flexible system of negotiation, accommodation, and (sometimes) political retaliation with a zero-sum game decided by judicial diktat,” Griffith wrote.

Even the original lower court "defeat" for Trump wasn't such a big deal to begin with. The judge at that level explicitly recognized that McGahn could assert executive privilege.

Commenter Forbes is fond of saying that "news" is now mostly entertainment.  If that's your view, then Politico's "reporting" has a distinctly humorous element:

Democrats are expected to appeal and could seek a fast-track Supreme Court review, though the prospects of a final decision before the November election seem remote.

If anyone can offer any reason why the SCOTUS would grant such a goofy request for a fast track review, please let me know. The mere notion testifies to the fanaticism of the Left and their blindness to reality.

The second development today is President Trump's renomination of John Ratcliffe as Director of National Intelligence (DNI). I agree with sundance that this could be a very important appointment if it goes through--if anyone knows better than Durham where all the Russia Hoax bodies are buried, it would be Ratcliffe. As DNI he'd be well situated to take important steps, especially in personnel matters.

Sundance maintains that this is likely a bit of political quid pro quo or even judo on Trump's part. The original Ratcliffe nomination had been opposed by Mitch McConnell, but now McConnell is getting significant pushback on FISA reauthorization the way he wants it, and could use some help from President Trump. Trump, for his part, can recognize a deal when one stares him in the face: Ratcliffe for "clean" FISA reauthorization, and then hopefully AG Barr can do some "reforming" of FISA via guidelines. Also like sundance, I think this is a deal worth doing, since FISA is likely with us for a long time to come.

Adding a bit of credibility to this speculation is that Trump appears to have originally been on board with a clean reauthorization until this week, when he began making negative noises. The switch was probably opportunistic--and why not?


  1. Wanna bet that even all Trump has been through he has some trusted advisers telling him FISA is a greater good?

  2. I'd say the Ratcliffe development is a sign that Trump really does know how to play the WDC game. I don't care if he had to learn on the job--with all the resistance, investigations, virtual insurrection by the FBI/DOJ/CIA, he's gone back to the well with a nominee previously turned away! Talk about a dealmaker.

    That is a foretaste of what the second term could be. Talk about energy is the executive. And look at the fun he is having at his rallies...

    PS: Mark--I may call it entertainment, but I never said it was "good" entertainment. YMMV.

  3. Maybe get both Ratcliffe and FISA reauthorized, but also codify into law real protections for Americans? That would be some real winning!