THE STRATEGIC ERROR

We all have our opinions and we are entitled to them. One of mine is that the two House committees did not issue subpoenas and force the administration to ignore or move to quash them. It is the pall over today’s obstruction presentation. I liken it to arguing to a judge that I need a continuance because I don’t have enough information to proceed to trial and have no answer about why I didn’t issue discovery requests to the other side.

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58 thoughts on “THE STRATEGIC ERROR”

  1. Pogo

    I agree but liken it to knowing the court actions would consume months and they wanted to get at least the attempt to convict before the election.  Should he still win they can always impeach him again next year.  

  2. in re Bloomberg 

    IMpotus is railing against the guy he calls “mini mike” for his mega mike ads airing currently in strategic states.  this is much like the bull who roars in pain, snorts and charges at the picador  at the beginning of the bullfight before the matador struts his stuff.

  3. I hope they address senators and fear. Their fear and watch “V for Vendetta” for inspiration and a cautionary tale. Congress fearing the Trumpster is ridiculous. Heading toward totalitarianism is BAD. “He promised you order, he promised you peace, and all he demanded in return was your SILENT OBEDIENT CONSENTt.”
    “People should not be afraid of their government, government should be afraid of their people.”
    “Our story begins, as these stories often do, with a young, up-and-coming politician. He’s a deeply religious man and a member of the Conservative Party. He’s completely single-minded and has no regard for the political process. The more power he attains, the more obvious his zealotry and the more aggressive his supporters become. Eventually, his party launches a special project in the name of “national security”….Fueled by the media, fear and panic spread quickly, fracturing and dividing the country until, at last, the true goal comes into view….But the end result, the true genius of the plan, was the fear. Fear became the ultimate tool of this government, and through it, our politician was ultimately appointed to the newly-created position of high chancellor. The rest, as they say, is history.”
     
    I wonder how many like, Collins, Graham, Moscow Mitch and others are on the Kremlin’s payroll?  I’d hope that someone asks them.

  4. We might have to give up Twitter for the weekend.   Tomorrow begins the Year of the Rat

    “People should avoid using words that may carry some bad, negative image,” he says. “What you should do, or should say, on Chinese New Year (is use) good words. Words, for instance, that could bring good fortune to your new year.” 

     

  5. Australia commemorates the lives of three American firefighters who died near Cooma this past Wednesday

    Captain Ian McBeth

    First Officer Paul Hudson

    Flight Engineer Rick DeMorgan, Jr

  6. John Roberts comes face to face with the mess he made

     
    Dana Milbank 
    “ystem. As representatives of all three branches of government attend this unhappy family reunion, the living consequences of the Roberts Court’s decisions, and their corrosive effect on democracy, are plain to see.

    Ten years to the day before Trump’s impeachment trial began, the Supreme Court released its Citizens United decision, plunging the country into the era of super PACs and unlimited, unregulated, secret campaign money from billionaires and foreign interests. Citizens United, and the resulting rise of the super PAC, led directly to this impeachment. The two Rudy Giuliani associates engaged in key abuses — the ouster of the U.S. ambassador to Ukraine, the attempts to force Ukraine’s president to announce investigations into Trump’s political opponents — gained access to Trump by funneling money from a Ukrainian oligarch to the president’s super PAC.”  Etc.  Good article.

  7. We watched Adam Schiff’s speech last night…  we both agreed that it was very powerful… but most likely falling on deaf ears on the gop side.
     
    Can’t wait to see what defense the gop comes up with…  well, I can…  I like to keep my lunch and dinner in my stomach.

  8. The bone-spur king hit yet another new low when he called percussion head wounds by something worse than an IED a “headache”.  A concussion or a TBI, traumatic brain injury, or a closed head injury are more than a headache. Did I read where someone put a bounty on his head?

  9. …still confused why Collins is considered a moderate- she must have voted with Dems one time (besides on Tuesday on the least consequential amendment)?
     
    Lamar Alexander verbally-voted to table the Schumer amendments so stinking fast, he would say “aye” before the clerk even finished calling his name, and he is one of the “persuadable” GOP Senators?
     
    So if the myth of the persuadable, open-minded, moderate Republican Senator is indeed a devious device from the wicked mind of Mitch McConnell, then yes, it was well-played by him, if one wishes to analyze the proceedings and the governance of all of us as a cynical game.

  10. Sorry, had to meet with a client and attend a hearing this morning so I wasn’t around to weigh in. 
    Let me ‘splain how this works in my world and why I posted what I posted.  First – in my haste to get something posted I misspoke.  To my knowledge there were subpoenas issued (and I frankly did not recall the one to the WH).  The first was for Kupperman, who went to court to block it (and the House subsequently withdrew it).  There were also subpoenas for McGahn (that one is awaiting decision I believe), the White House, Giuliani and the Pentagon, all of which were issued in October (I believe) and all of which the various targets refused to comply with.  They followed Nancy Reagan’s  drug war directive and just said no.  In Nancy’s world just saying no didn’t work, in this instance it did. Regardless, the House did not pursue the refusal of the targets to answer the subpoenas in Federal District Court, which is the enforcement mechanism available to them.  There are plenty of good reasons that have been posited explaining why they did not pursue the failure of the various people and entities to comply, but the decisions not to pursue the enforcement mechanisms left the House in the position of not having tried beyond issuing the subpoenas to get the information that they now claim prove the abuse of power case beyond the witness testimony and redacted documents they have shown in their presentations.  I think they do have a good argument that the failure of the WH to respond is obstruction per se writ large and in plain sight, but there is a counter argument that failure to ask a court to enforce the subpoenas was the House’s negligence in gathering the facts it needed.  
     
    Jamie, re: your 8:13 comment, clearly that is what their thought process was, and if SFB wins the election in November and the House remains in Dem control I’d expect it.  
     
    Poobah, could they have pursued the subpoena enforcement through court and impeached as well?  Yes.  Had the House pursued the enforcement of the subpoenas in Federal Court, they would either (a) have the information they sought or (b) would have had all or part of it withheld under a court order after the various privilege claims were considered.  Worst case (c) they would be without the information sought and a bad precedent would be set.  Best case, the WH would have been ordered to turn some or all of the information relevant to the investigation.  They decided to go with what they had.  Complaining that the system is too slow and cumbersome to force compliance with subpoenas as an excuse for not using the system that is available would not excuse that failure in a dog bite case, much less in an impeachment case.  The system you have is the system you have, and if you don’t use it that is at your peril and jeopardizes your ability to prove your case. I think the remedy would have been to let the court cases percolate while the investigations continued.  (Just my opinion, mind you).Whether they decided to go ahead and impeach SFB or not, I would not have abandoned the Court route re: the subpoenas.
     
     

  11. Senate has “sole power” to try the case under the Constitution.  No need for Court rulings on subpoenas.

    Chief Justice is right there, can rule on these questions. 

  12. I don’t disagree with your analysis Pogo for conventional court proceedings, but no party in regular court is given “sole power” by the Constitution as the House and Senate are given. To my eyes and ears sole power leaves the judicial branch out of the equation. If subpoenas are defied lock them up.

  13. I think the House was correct to dismiss going to court because the Constitution dismissed a judicial branch role in impeachment proceedings. “Sole power” means exclusive authority, full stop. 

  14. Also worth noting the Constitution gave the Judicial Branch no power of review over legislative action. The Court assumed that power in Marbury vs. Madison, which was arguably unconstitutional. 

  15. Poobah,
     
    Here’s the problem.  Let’s say the question of witnesses and documents is raised with Roberts and glory be, he says yep, they need to come and the House’s failure to pursue them does not act as a bar to their request in the Senate – tell them to turn the documents over and show up to testify as subpoenaed.  Lindsey graham rises, and is recognized, moves for a vote on the CJ’s ruling.  Senate votes 53-47 to overrule the CJ’s ruling and bar additional witnesses and document production.  Where do we go from here? I frankly don’t know of any avenue of redress available were this issue to play out that way.

  16. Yep Pogo, ultimately the Senate has the power, and if they vote against subpoenas or the Chief Justice so be it. But they shouldn’t hide behind worrying about the courts. They have sole power. And the voters in November get the final say. 

  17. I hear ya, poobah.  That circular argument is exactly what you can expect to hear beginning tomorrow. 
    But if that is the case – that the Courts have no role in enforcing congressional subpoenas in impeachment proceedings – there is virtually no prospect of impeachment and removal where there is no mechanism to enforce subpoenas when the House majority party (not the party of the president) is the Senate minority party if, say, the Senate majority (party of the president) decides that it will support the President and oppose the House managers’ request for witnesses and documents that weren’t secured in the House proceedings.    That is where we will be if at the end of opening arguments 4 Republicans do not cross over and vote to have witnesses and exhibits AND there is no way to compel the attendance of the witnesses and production of documents.  I do not believe that was the intent of the founders when they put impeachment into Article II.  And while Marbury v. Madison is arguably unconstitutional, after 217 years I think it would be applied rather than overturned (or maybe I misunderstand your reference to it).  A different question is whether the impeachment rules would even be subject to judicial review under MvM.

  18. Our banter is crossing in the mail.  My last was in response to your 1:13.  WRT your 1:20, you are right.  That, though leads back to my earlier position – I would have pursued those House subpoenas in Court.  They were (in part) already there and I didn’t hear anything about a subject matter Jurisdiction challenge to the Courts entertaining the motion to quash.  In fact, Kupperman arguably waived such a challenge (although in BGWV subject matter J/D is never waived and can be raised at any stage – but I’ve never seen even our idiotic Supreme Court of Appeals dismiss on that basis on the motion of the moving party.  The McGahn suit is worth considering – the House filed it to force McGahn to testify, and DoJ, representing him, SFB and itself tried to block Judge Brown from ruling, including that the Courts lack subject matter jurisdiction over congressional subpoenas generally, and over those issued to executive branch officials.  To quote Sir Paul, “The judge did not agree and [s]he told them so, oh, oh, oh.” She rejected that and ruled that McGahn had to testify.  It’s under appeal and we continue to wait for the ruling.  And check this out – from CNN. This is a developing story.  MvM will inevitably be reviewed before this mess is concluded.
     
    The good news – the issue regarding McGahn is based upon ongoing investigation by the House.  Hello, shall we do this impeachment dance again?

  19. Republicans are already too pot-committed to ever allow witnesses- imagine how damning Rudy Giuliani testifying under-oath would be to all of them, especially since Trump’s “personal lawyer” can’t credibly claim executive privilege.
     
    Republicans aren’t pensively trying to decide whether or not to sell their souls to Trump- that transaction has already been completed.

  20. Rudy would try to claim attorney-client privilege.  It would not ultimately be successful IMHO regardless of his (ludicrous) claim that he was a lawyer acting in that capacity to gather evidence to defend his client.  Ah, who was it that said there are 3 ways a president can insure his impeachment, the third being to hire Rudy?  I hate not having a memory worth a damn.

  21. Poobah,in McGahn the House took the opposite position.  Judge Brown examined the jurisdictional issue at length beginning on page 33 of her opinion.  Worth a read.  I still don’t see the enforcement mechanism.

  22. Your arguments are fascinating. I do believe that in the event Marbury v Madison is reviewed, the SCOTUS will find unanimity in supporting Judicial Review. 
     
    Just as a practical matter, erasing MvM would call into question the legitimacy of many of the most basic institutions of modern life : poll taxes, school prayer, integration, the property rights of women, public sanitation, eminent domain, government secrecy, legislative redistricting, poor laws, forced sterilization, gun  control, Roe v Wade and capital punishment, just to name a few.

  23. For a blue dog, Schiff is an awesome courtroom performer.  In criminal courts I have seen, judges and justices tend to frown on fine oratory.  They want the arguments, plain, simple, unemotional and “hurry up, counsel, there is a great pile of cases to be read in my chamber.”

  24. I’ve been told to “get to the point” and it’s not because I was presenting fine oration.  Probably just to the contrary.
     
    Schiff does a fine job of speaking in a setting such as the well of the SEnate – I expect he was an effective litigator.

  25. Of course, xrepub, the court would find unanimity in supporting Judicial Review, putting the lie to strict construction justices. A question I always wanted to ask Scalia: how can a strict reading of the Constitution justify a judicial power that isn’t there? 

  26. Poobah, LOL – let’s do a seance so we can hear Scalia lecture us again.  We can invite RBG – she liked him.

  27. Xrepub, you cite many good things judicial review gave us but it also gave us the Dred Scott decision upholding slavery. And now that we face a Judiciary branch populated by Trump appointees we ought not expect better. 

  28. Mr C, Yes, either way, we have to take the okay with the lousy. However, tossing out judicial review would mean starting all over from the beginning. That’d please clarence, especially if we tossed out stare decisis also. Not so sure that anyone else would be happy.

  29. Ok, bang a gong, get it on, wrap it up, it’s the weekend…
     
    Good job, House impeachment managers👍

  30. I threw up a pic for tomorrow, but please feel free, should there be a more salient post, to pre-empt the humpback.

  31. Hey- once again: great job, House impeachment managers, you proved your case: Trump is a treasonous criminal that needs to be removed from office.👍👍👍🇺🇸🇺🇸🇺🇸

  32. hey- you wouldn’t have your barber change your oil, and you wouldn’t have your mechanic cut your hair, so why would you have a game-show-host run your country???

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