DOCSLIB.ORG

Executive Privilege and Congressional Oversight

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Executive Privilege and Congressional Oversight EXECUTIVE PRIVILEGE AND CONGRESSIONAL OVERSIGHT HEARING BEFORE THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED SIXTEENTH CONGRESS FIRST SESSION MAY 15, 2019 Serial No. 116–20 Printed for the use of the Committee on the Judiciary ( Available http://judiciary.house.gov or www.govinfo.gov U.S. GOVERNMENT PUBLISHING OFFICE 37–502 WASHINGTON : 2019 VerDate Sep 11 2014 01:46 Oct 11, 2019 Jkt 037502 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 E:\HR\OC\A502.XXX A502 snicholson on DSK30NT082PROD with HEARING COMMITTEE ON THE JUDICIARY JERROLD NADLER, New York, Chairman ZOE LOFGREN, California DOUG COLLINS, Georgia, Ranking Member SHEILA JACKSON LEE, Texas F. JAMES SENSENBRENNER, JR., STEVE COHEN, Tennessee Wisconsin HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia STEVE CHABOT, Ohio THEODORE E. DEUTCH, Florida LOUIE GOHMERT, Texas KAREN BASS, California JIM JORDAN, Ohio CEDRIC L. RICHMOND, Louisiana KEN BUCK, Colorado HAKEEM S. JEFFRIES, New York JOHN RATCLIFFE, Texas DAVID N. CICILLINE, Rhode Island MARTHA ROBY, Alabama ERIC SWALWELL, California MATT GAETZ, Florida TED LIEU, California MIKE JOHNSON, Louisiana JAMIE RASKIN, Maryland ANDY BIGGS, Arizona PRAMILA JAYAPAL, Washington TOM MCCLINTOCK, California VAL BUTLER DEMINGS, Florida DEBBIE LESKO, Arizona J. LUIS CORREA, California GUY RESCHENTHALER, Pennsylvania MARY GAY SCANLON, Pennsylvania, BEN CLINE, Virginia Vice-Chair KELLY ARMSTRONG, North Dakota SYLVIA R. GARCIA, Texas W. GREGORY STEUBE, Florida JOE NEGUSE, Colorado LUCY MCBATH, Georgia GREG STANTON, Arizona MADELEINE DEAN, Pennsylvania DEBBIE MUCARSEL-POWELL, Florida VERONICA ESCOBAR, Texas PERRY APELBAUM, Majority Staff & Chief Counsel BRENDAN BELAIR, Minority Staff Director (II) VerDate Sep 11 2014 01:46 Oct 11, 2019 Jkt 037502 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 E:\HR\OC\A502.XXX A502 snicholson on DSK30NT082PROD with HEARING C O N T E N T S MAY 15, 2019 OPENING STATEMENTS Page The Honorable Jerrold Nadler, Chairman, Committee on the Judiciary ............ 1 The Honorable Doug Collins, Ranking Member, Committee on the Judiciary .. 20 WITNESS Kate Shaw, Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University Oral Testimony ................................................................................................. 30 Prepared Testimony ......................................................................................... 34 Paul Rosenzweig, Senior Fellow, National Security & Cybersecurity, R Street Institute Oral Testimony ................................................................................................. 47 Prepared Testimony ......................................................................................... 49 Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law, The George Washington University Law School Oral Testimony ................................................................................................. 66 Prepared Testimony ......................................................................................... 68 Neil Kinkopf, Professor of Law, Georgia State University College of Law Oral Testimony ................................................................................................. 97 Prepared Testimony ......................................................................................... 138 LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING A letter for the record submitted by the Honorable Jerrold Nadler, Chairman, Committee on the Judiciary ................................................................................ 4 A letter for the record submitted by the Honorable Jerrold Nadler, Chairman, Committee on the Judiciary ................................................................................ 17 A letter for the record submitted by the Honorable Doug Collins, Ranking Member, Committee on the Judiciary ................................................................ 23 Excerpts from a report by the Project in Government Oversight for the record submitted by the Honorable Jerrold Nadler, Chairman, Committee on the Judiciary ................................................................................................... 99 APPENDIX A Statement and articles for the record submitted by the Honorable Sheila Jackson Lee, a Member of Congress from the State of Texas, Committee on the Judiciary ................................................................................................... 188 A Statement for the record submitted by the Honorable Sylvia Garcia, a Member of Congress from the State of Texas, Committee on the Judiciary ... 210 A Statement for the record submitted by Caroline Fredrickson, President, American Constitution Society, and Noah Bookbinder, Executive Director, Citizens for Responsibility and Ethics in Washington, on behalf of the joint ACS/CREW Presidential Education Project .............................................. 213 (III) VerDate Sep 11 2014 01:46 Oct 11, 2019 Jkt 037502 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 E:\HR\OC\A502.XXX A502 snicholson on DSK30NT082PROD with HEARING VerDate Sep 11 2014 01:46 Oct 11, 2019 Jkt 037502 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 E:\HR\OC\A502.XXX A502 snicholson on DSK30NT082PROD with HEARING EXECUTIVE PRIVILEGE AND CONGRESSIONAL OVERSIGHT WEDNESDAY, MAY 15, 2019 HOUSE OF REPRESENTATIVES COMMITTEE ON THE JUDICIARY Washington, DC. The committee met, pursuant to call, at 10:11 a.m., in Room 2141, Rayburn Office Building, Hon. Jerrold Nadler [chairman of the committee] presiding. Present: Representatives Nadler, Lofgren, Jackson Lee, Johnson of Georgia, Deutch, Bass, Jeffries, Cicilline, Lieu, Raskin, Jayapal, Correa, Scanlon, Garcia, McBath, Stanton, Dean, Mucarsel-Powell, Collins, Chabot, Gohmert, Buck, Ratcliffe, Gaetz, Biggs, McClin- tock, Lesko, Reschenthaler, Cline, Armstrong, and Steube. Staff present: David Greengrass, Senior Counsel; John Doty, Senior Advisor; Lisette Morton, Director of Policy, Planning, and Member Services; Madeline Strasser, Chief Clerk; Moh Sharma, Member Services and Outreach Advisor; Susan Jensen, Parliamen- tarian/Senior Counsel; Sophie Brill, Counsel, Constitution Sub- committee; Will Emmons, Professional Staff Member, Constitution Subcommittee; Sarah Istel, Counsel; Matt Morgan, Counsel; Brendan Belair, Minority Chief of Staff; Robert Parmiter, Minority Deputy Staff Director and Chief Counsel; Jon Ferro, Minority Par- liamentarian; Paul Taylor, Minority Chief Counsel, Constitution Subcommittee; Carlton Davis, Minority Chief Oversight Counsel; Ashley Callen, Minority Senior Adviser and Oversight Counsel; and Erica Barker, Minority Clerk. Chairman NADLER. The Judiciary Committee will come to order. Without objection, the chair is authorized to declare recesses of the committee at any time. We welcome everyone to today’s hearing on executive privilege and congressional oversight. I will now recognize myself for an opening statement. For more than 200 years, Congress has exercised its power under Article I of the Constitution to conduct oversight of the executive branch. Congress’ power of inquiry, recognized by the Supreme Court in case after case for nearly a century, is essential to our constitutional order. Without it, Congress would have no way to ex- pose waste or misconduct, to inform itself for purposes of writing new legislation, or to ensure that public officials, including the President, remain accountable to the people they are supposed to serve. (1) VerDate Sep 11 2014 01:46 Oct 11, 2019 Jkt 037502 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 E:\HR\OC\A502.XXX A502 snicholson on DSK30NT082PROD with HEARING 2 Congress and the executive branch have fought over requests for information in the past. At times, this has included disagreement over the scope of executive privilege, the doctrine that holds that certain information may be withheld from Congress under limited circumstances to protect the President’s ability to seek candid ad- vice from his or her advisers. But while the courts have held that the President’s communications are entitled to some degree of con- fidentiality, they have consistently held that the privilege is not an absolute shield and can be overcome when the interest of justice re- quire it. Until recently, no President had ever stated that his plan across the board would to be fight any and all oversight from Congress. In declaring that he plans to ‘‘fight all the subpoenas,’’ President Trump has announced his hostility to our system of checks and bal- ances and is thereby seeking to hold himself above the law. The President’s statement was not just isolated rhetoric. It was an ad- mission of what this Administration has been doing and has really escalated since the start of the 116th Congress when it became clear the House of Representatives would carry out its duty and the will of the voters by engaging in constitutionally-necessary oversight of the executive branch. By this Administration’s command, the White House has at- tempted to impede over 20 congressional investigations, including by ignoring or failing to provide meaningful responses to dozens of letters requesting information on topics ranging from the Afford- able Care Act to the security of our elections to the policy of sepa- rating children from their parents at the border. Government wit- nesses have failed to appear for hearings and interviews. While in other administrations Congress issued subpoenas only as a last re- sort when negotiations failed, the Trump Administration has often been unwilling to engage with
Load more

Recommended publications
  • Reflections on Murder, Misdemeanors, and Madison Jonathan Turley
    Hofstra Law Review Volume 28 | Issue 2 Article 6 1999 Reflections on Murder, Misdemeanors, and Madison Jonathan Turley Follow this and additional works at: http://scholarlycommons.law.hofstra.edu/hlr Part of the Law Commons Recommended Citation Turley, Jonathan (1999) "Reflections on Murder, Misdemeanors, and Madison," Hofstra Law Review: Vol. 28: Iss. 2, Article 6. Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol28/iss2/6 This document is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Review by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. Turley: Reflections on Murder, Misdemeanors, and Madison REFLECTIONS ON MURDER, MISDEMEANORS, AND MADISON Jonathan Turley* I. INTRODUCTION Few crimes seem to concentrate the mind more than simple mur- der. Certainly, murder was on the minds of many of the academics testi- fying in the Clinton impeachment hearing While this offense was never seriously alleged during the scandal, it was very much a concern for academics advocating the "executive function theory. 2 Under this theory, a President could only be impeached for acts related to his of- fice, as opposed to purely personal acts.' Since the impeachment of President Clinton raised matters arguably related to his personal mis- conduct, various academics insisted that the allegations fell outside of * J.B. and Maurice C. Shapiro Professor of Public Interest Law at George Washington University of Law School. 1. See Background and History of Impeachment: Hearing Before the Subcomm. on the Constitutionof the House Comm.
    [Show full text]
  • Interrogation's Law
    THEYAEAW JOUNA WILLIAM RANNEY LEVI Interrogation's Law ABSTRACT. Conventional wisdom states that recent U.S. authorization of coercive interrogation techniques, and the legal decisions that sanctioned them, constitute a dramatic break with the past. This is false. U.S. interrogation policy well prior to 9/11 has allowed a great deal more flexibility than the high-minded legal prohibitions of coercive tactics would suggest: all interrogation methods allegedly authorized since 9/11, with the possible exception of waterboarding, have been authorized before. The conventional wisdom thus elides an intrinsic characteristic of all former and current laws on interrogation: they are vague and contestable, and thus, when context so demands, manipulable. A U TH O R. Yale Law School, J.D. expected 2oo; Stanford University, B.A. 2006. Three individuals were central to the development of this project. Jack L. Goldsmith offered invaluable guidance from the beginning; I could not ask for a better mentor. Owen M. Fiss graciously supported this project, providing thoughtful comments and helpful criticism. Harold H. Koh consulted and advised throughout; I am immensely grateful for his encouragement. I am thankful to Mariano-Florentino Cullar, Jeremy M. Licht, Martin S. Lederman, David F. Levi, and Benjamin Wittes. This Note was completed before the Justice Department released four additional memoranda on April 16, 2009. 1434 NOTE CONTENTS INTRODUCTION 1436 1. THE LAW'S LATITUDE: SEPTEMBER 11, 2001 TO THE PRESENT 1442 A. Law and Interrogation: The Central Intelligence Agency 1443 1. The Torture Statute 1444 2. The Fifth Amendment 1448 3. Hamdan v. Rumsfeld and the Military Commissions Act 1452 B.
    [Show full text]
  • The National Emergencies Act of 1976 Hearing Committee on the Judiciary House of Representatives
    THE NATIONAL EMERGENCIES ACT OF 1976 HEARING BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED SIXTEENTH CONGRESS FIRST SESSION FEBRUARY 28, 2019 Serial No. 116–5 Printed for the use of the Committee on the Judiciary ( Available http://judiciary.house.gov or www.govinfo.gov U.S. GOVERNMENT PUBLISHING OFFICE 37–840 WASHINGTON : 2019 VerDate Sep 11 2014 04:06 Oct 12, 2019 Jkt 037840 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 E:\HR\OC\B840.XXX B840 dlhill on DSKBBY8HB2PROD with HEARING COMMITTEE ON THE JUDICIARY JERROLD NADLER, New York, Chairman ZOE LOFGREN, California DOUG COLLINS, Georgia, SHEILA JACKSON LEE, Texas Ranking Member STEVE COHEN, Tennessee F. JAMES SENSENBRENNER, JR., HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia Wisconsin THEODORE E. DEUTCH, Florida STEVE CHABOT, Ohio KAREN BASS, California LOUIE GOHMERT, Texas CEDRIC L. RICHMOND, Louisiana JIM JORDAN, Ohio HAKEEM S. JEFFRIES, New York KEN BUCK, Colorado DAVID N. CICILLINE, Rhode Island JOHN RATCLIFFE, Texas ERIC SWALWELL, California MARTHA ROBY, Alabama TED LIEU, California MATT GAETZ, Florida JAMIE RASKIN, Maryland MIKE JOHNSON, Louisiana PRAMILA JAYAPAL, Washington ANDY BIGGS, Arizona VAL BUTLER DEMINGS, Florida TOM MCCLINTOCK, California J. LUIS CORREA, California DEBBIE LESKO, Arizona MARY GAY SCANLON, Pennsylvania, GUY RESCHENTHALER, Pennsylvania Vice-Chair BEN CLINE, Virginia SYLVIA R. GARCIA, Texas KELLY ARMSTRONG, North Dakota JOE NEGUSE, Colorado W. GREGORY STEUBE, Florida LUCY MCBATH, Georgia GREG STANTON, Arizona MADELEINE DEAN, Pennsylvania DEBBIE MUCARSEL-POWELL, Florida VERONICA ESCOBAR, Texas PERRY APELBAUM, Majority Staff Director & Chief Counsel BRENDAN BELAIR, Minority Staff Director SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES STEVE COHEN, Tennessee, Chair JAMIE RASKIN, Maryland MIKE JOHNSON, Louisiana, ERIC SWALWELL, California Ranking Member MARY GAY SCANLON, Pennsylvania LOUIE GOHMERT, Texas MADELEINE DEAN, Pennsylvania JIM JORDAN, Ohio SYLVIA R.
    [Show full text]
  • National Security and Statutory Interpretation
    SMU Law Review Volume 53 Issue 1 Article 9 2000 Through a Looking Glass Darkly: National Security and Statutory Interpretation Jonathan Turley Follow this and additional works at: https://scholar.smu.edu/smulr Recommended Citation Jonathan Turley, Through a Looking Glass Darkly: National Security and Statutory Interpretation, 53 SMU L. REV. 205 (2000) https://scholar.smu.edu/smulr/vol53/iss1/9 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. THROUGH A LOOKING GLASS DARKLY: NATIONAL SECURITY AND STATUTORY INTERPRETATION Jonathan Turley* TABLE OF CONTENTS I. INTRODUCTION ........................................ 206 II. AREA 51: A CASE STUDY OF THE GRAVITATIONAL EFFECT OF THE COMMON LAW ON STATUTORY INTERPRETATION IN THE NATIONAL SECURITY AREA ......................... 210 A. FACTUAL BACKGROUND .............................. 210 B. RELEVANT LEGAL ARGUMENTS AND JUDICIAL R ULINGS .............................................. 214 C. THE GRAVITATIONAL EFFECT OF THE COMMON LAW PRIVILEGE ON THE ANALYSIS IN KASZA AND FRosT ................................................. 219 III. THE INTERPLAY OF STATUTORY INTERPRETATION AND THE COMMON LAW IN THE AREA 51 LITIGATION ............................ 221 A. THEORIES OF STATUTORY INTERPRETATION IN THE COMPANY OF THE COMMON LAW ..................... 222 B. PREEMPTION AND JUDICIAL CHOICE: THE USE OF COMMON LAW AS AN OUTCOME-DETERMINATIVE ELEMENT IN THE FROST CASE ........................ 228 C. THE ADOPTION OF AN ABSOLUTE STATE SECRETS PRIVILEGE IN THE AREA 51 LITIGATION .............. 231 IV. THE LEGISPRUDENCE OF NATIONAL SECURITY AND THE COMMON LAW ............................. 237 A. THE DIALOGIC EFFECT OF THE COMMON LAW IN THE AREA OF STATUTORY INTERPRETATION ..............
    [Show full text]
  • Written Statement Jonathan Turley, Shapiro Professor of Public Interest
    Written Statement Jonathan Turley, Shapiro Professor of Public Interest Law George Washington University "The President's Constitutional Duty to Faithfully Execute the Laws" Committee on the Judiciary United States House of Representatives 2141 Rayburn House Office Building December 3, 2013 Chairman Goodlatte, Ranking Member Conyers, and members of the Judiciary Committee, my name is Jonathan Turley and I am a law professor at George Washington University where I hold the J.B. and Maurice C. Shapiro Chair of Public Interest Law. It is an honor to appear before you today to discuss the constitutional concerns raised by recent nonenforcement polices and the President’s duty to faithfully execute the law of the United States. The issue before the Committee is clearly a difficult one. It is often difficult to separate the merits of the underlying policies from the means used to achieve them. It so happens that I agree with many of the goals of the Administration in the various areas where the President has circumvented Congress. However, in the Madisonian system, it is often more important how you do things than what you do. We have long benefited from a system designed to channel and transform factional interests in the political system. When any branch encroaches upon the authority of another, it not only introduces instability into the system but leaves political issues raw and unresolved. However, to paraphrase one of Benjamin Franklin’s favorite sayings, the Constitution helps those branches that help themselves. Each branch is given the tools to defend itself and the Framers assumed that they would have the ambition and institutional self-interest to use them.
    [Show full text]
  • Senate Trials and Factional Disputes: Impeachment As a Madisonian Device
    TURLEY TO PRINTER 11/30/99 3:15 PM Duke Law Journal VOLUME 49 OCTOBER 1999 NUMBER 1 SENATE TRIALS AND FACTIONAL DISPUTES: IMPEACHMENT AS A MADISONIAN DEVICE JONATHAN TURLEY† ABSTRACT In this Article, Professor Turley addresses the use of impeachment, specifically the Senate trial, as a method of resolving factional disputes about an impeached official’s legitimacy to remain in office. While the Madisonian democracy was designed to regulate factional pressures, academics and legislators often discuss impeachments as relatively static events focused solely on removal. Alternatively, impeachment is sometimes viewed as an extreme countermajoritarian measure used to “reverse” or “nullify” the popular election of a President. This Article advances a more dynamic view of the Senate trial as a Madisonian device to resolve factional disputes. This Article first discusses the history of impeachment and demon- strates that it is largely a history of factional or partisan disputes over legitimacy. The Article then explores how impeachment was used historically as a check on the authority of the Crown and tended to be used most heavily during periods of political instability. English and colonial impeachments proved to be highly destabilizing in the ab- sence of an integrated political system. The postcolonial impeachment process was modified to convert it from a tool of factional dissension to a vehicle of factional resolution. This use of Senate trials as a Madisonian device allows for the public consideration of the full rec- † J.B. and Maurice C. Shapiro Professor of Public Interest Law at George Washington University. For Benjamin John Turley, who was born during the research and writing of this Article.
    [Show full text]
  • Anonymity, Obscurity, and Technology: Reconsidering Privacy in the Age of Biometrics
    ANONYMITY, OBSCURITY, AND TECHNOLOGY: RECONSIDERING PRIVACY IN THE AGE OF BIOMETRICS JONATHAN TURLEY ABSTRACT For decades, cinematic and literary works have explored worlds without privacy: fishbowl societies with continual, omnipresent surveillance. For those worried about a post-privacy world, facial recognition technology and other biometric technology could well be the expanding portal to that dystopia. These technologies are rapidly transforming a society predicated on privacy into a diaphanous society where identity and transparency are defining elements. Biometric technology is perfectly suited to evade current privacy protections and doctrines because it presents new challenges to the existing legal framework protecting privacy. The greatest threat of this technological shift is to democratic activities—the very reason that countries such as China have invested so heavily into biometric surveillance systems. This Article explores how our traditional privacy notions fit into a new age of biometrics. It seeks to frame the debate on what values society’s notions of privacy protect, and how to protect them. After exploring prior approaches and definitions to privacy, it proposes a shift from an emphasis on anonymity to a focus on obscurity. The truth is that we now live in a “nonymous” world where our movements and associations will be made increasingly transparent. This Article concludes by recommending a comprehensive approach to biometric technology that would obscure increasingly available images and data while recasting privacy protections to fit a new and unfolding biometric reality. This obscurity will allow participation in society to continue unimpeded by the chilling effects created by the new technology. Without it, our democratic society will never be the same.
    [Show full text]
  • Jonathan Turley on Trump Emolument Clause
    Jonathan Turley On Trump Emolument Clause Transferrable Stafford machinates some hugeousness and incurvate his doolies so bilingually! Inexpressive and knurliest Garcia grow her streps carpogoniums tours and chastens classically. Waine is gneissic and subsidizes collectively while tubbiest Dion overbuilding and reeving. Throughout both parties, turley on trump but we will be chaired this body would have Other hypos can be raised. Does this seems more information technology that remedy for business records obtained and consistently found, jonathan turley on trump emolument clause of jonathan turley told to! The investigations to the president trump, llp and tom paine said before the courts recognize such an impeachment inquiry, some of the. How on emoluments clause, emolument as a number of the ones. We on these funds to jonathan elliot, jonathan turley on trump emolument clause of law professor? In trump emoluments clause inspection of jonathan turley argued that the ones that it is not good of care act and his particular. Ambassador to external sites are monstrously evil cabal of jonathan turley on trump emolument clause and then went on biden always two primary allegations make scotus reject earlier following the ransom is nothing. Deposition on emoluments clause does turley about raising their liberty protected rights page features some good doctor degree to! Circuit court struck them the tire Air Interstate Rule that implemented a flutter and trade written for pollutants. Live on one! Supreme Court agreed to review cases presenting gay marriage issues. Lorem ipsum dolor sit amet, Ambassador Taylor asked to resemble with him privately. Dem candidate trump had with meaning and the financial services are provided sufficient reason, but it was explicit that body of state! Uk on trump executive branch from jonathan turley argued against trump extended an emolument clause would be our criminal.
    [Show full text]
  • The Clinton Administration and the Erosion of Executive Privilege Jonathan Turley
    Maryland Law Review Volume 60 | Issue 1 Article 11 Paradise Losts: the Clinton Administration and the Erosion of Executive Privilege Jonathan Turley Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlr Part of the President/Executive Department Commons Recommended Citation Jonathan Turley, Paradise Losts: the Clinton Administration and the Erosion of Executive Privilege, 60 Md. L. Rev. 205 (2001) Available at: http://digitalcommons.law.umaryland.edu/mlr/vol60/iss1/11 This Conference is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. PARADISE LOST: THE CLINTON ADMINISTRATION AND THE EROSION OF EXECUTIVE PRIVILEGE JONATHAN TuRLEY* INTRODUCTION In Paradise Lost, Milton once described a "Serbonian Bog ... [w]here Armies whole have sunk."' This illusion could have easily been taken from the immediate aftermath of the Clinton crisis. On a myriad of different fronts, the Clinton defense teams advanced sweep- ing executive privilege arguments, only to be defeated in a series of judicial opinions. This "Serbonian Bog" ultimately proved to be the greatest factor in undoing efforts to combat inquiries into the Presi- dent's conduct in the Lewinsky affair and the collateral scandals.2 More importantly, it proved to be the undoing of years of effort to protect executive privilege from risky assertions or judicial tests.' In the course of the Clinton litigation, courts imposed a series of new * J.B. & Maurice C.
    [Show full text]
  • In Re IMPEACHMENT of PRESIDENT DONALD J. TRUMP
    IN THE SENATE OF THE UNITED STATES Sitting as a Court of Impeachment In re IMPEACHMENT OF PRESIDENT DONALD J. TRUMP TRIAL MEMORANDUM OF THE UNITED STATES HOUSE OF REPRESENTATIVES IN THE IMPEACHMENT TRIAL OF PRESIDENT DONALD J. TRUMP United States House of Representatives Jamie Raskin Diana DeGette David Cicilline Joaquin Castro Eric Swalwell Ted Lieu Stacey Plaskett Madeleine Dean Joe Neguse U.S. House of Representatives Managers TABLE OF CONTENTS INTRODUCTION ............................................................................................................................................ 1 STATEMENT OF FACTS ............................................................................................................................... 5 A. President Trump Refuses to Accept the Results of the 2020 Election ................................ 5 B. President Trump Encourages His Followers to Come to Washington on January 6, 2021 and “Fight” to Overturn the Election Results ............................................................. 12 C. Vice President Pence Refuses to Overturn the Election Results ....................................... 18 D. President Trump Incites Insurrectionists to Attack the Capitol ........................................ 20 E. Insurrectionists Incited by President Trump Attack the Capitol ....................................... 22 F. President Trump’s Dereliction of Duty During the Attack ................................................ 29 G. The House Approves An Article of Impeachment with Bipartisan Support
    [Show full text]
  • Professor Jonathan Turley Is a Nationally Recognized Legal Scholar Who Has Written Extensively in Areas Ranging from Constitutional Law to Legal Theory to Tort Law
    Professor Jonathan Turley is a nationally recognized legal scholar who has written extensively in areas ranging from constitutional law to legal theory to tort law. He has written over three dozen academic articles that have appeared in a variety of leading law journals at Cornell, Duke, Georgetown, Harvard, Northwestern, University of Chicago, and other schools. One of this current projects if the new case book on Torts for exploring common law, constitutional, and statutory issues of civil liability. After a stint at Tulane Law School, Professor Turley joined the George Washington faculty in 1990 and, in 1998, was given the prestigious Shapiro Chair for Public Interest Law, the youngest chaired professor in the school’s history. In addition to his extensive publications, Professor Turley has served as counsel in some of the most notable cases in the last two decades including the representation of whistleblowers, military personnel, judges, members of Congress, and a wide range of other clients. He is also one of the few attorneys to successfully challenge both a federal and a state law — leading to courts striking down the federal Elizabeth Morgan law as well as the state criminalization of cohabitation. In 2010, Professor Turley represented Judge G. Thomas Porteous in his impeachment trial. After a trial before the Senate, Professor Turley (on December 7, 2010) argued both the motions and gave the final argument to all 100 U.S. Senators from the well of the Senate floor — only the 14th time in history of the country that such a trial of a judge has reached the Senate floor.
    [Show full text]
  • Written Statement Jonathan Turley, Shapiro
    Written Statement Jonathan Turley, Shapiro Professor of Public Interest Law The George Washington University Law School “The Impeachment Inquiry Into President Donald J. Trump: The Constitutional Basis For Presidential Impeachment” 1100 House Office Building United States House of Representatives Committee on the Judiciary December 4, 2019 I.INTRODUCTION Chairman Nadler, ranking member Collins, members of the Judiciary Committee, my name is Jonathan Turley, and I am a law professor at George Washington University where I hold the J.B. and Maurice C. Shapiro Chair of Public Interest Law.1It is an honor to appear before you today to discuss one of the most solemn and important constitutional functions bestowed on this House by the Framers of our Constitution: the impeachment of the President of the United States. Twenty-one years ago, I sat here before you, Chairman Nadler, and other members of the Judiciary Committee to testify on the history and meaning of the constitutional impeachment standard as part of the impeachment of President William Jefferson Clinton. I never thought that I would have to appear a second time to address the same question with regard to another sitting president. Yet, here we are. Some elements are strikingly similar. The intense rancor and rage of the public debate is the same. It was an atmosphere that the Framers anticipated. Alexander Hamilton warned that charges of impeachable conduct “will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused.”2 As with the Clinton impeachment, the Trump impeachment has again proven Hamilton’s words to be prophetic.
    [Show full text]