Donald Trump is inventing new Constitutional powers out of thin air

Welcome to another edition of What Fresh Hell?, Raw Story’s roundup of news items that might have become controversies under another regime, but got buried – or were at least under-appreciated – due to the daily firehose of political pratfalls, unhinged tweet storms and other sundry embarrassments coming out of the current White House.

This week, Trump told an adoring crowd of conservatives, “I have an Article 2, where I have the right to do whatever I want as president." This sent the guys who wrote the Constitution and were fearful of the executive branch developing into a monarchy spinning in their graves.

Also this week, one of Donald Trump’s lawyers argued that if the president* shot someone on Fifth Avenue, not only would he be immune to prosecution, the police wouldn’t even have the authority to investigate the crime until after he left office.

As Ian Milhiser noted for Vox, it’s a ridiculous claim that runs counter to settled law and which was explicitly rejected by the Supreme Court during Bill Clinton’s presidency.

We can’t say how the appeals court will rule on that one, but this week another federal judge shredded the regime’s central justification for obstructing the House impeachment inquiry. Chief Judge Beryl Howell of the Federal District Court ruled that the House was not required to hold a vote authorizing the probe by either the Constitution or by House rules.

“The White House’s stated policy of noncooperation with the impeachment inquiry weighs heavily in favor of disclosure” of Grand Jury material from the Mueller investigation, she wrote. “Congress’s need to access grand jury material relevant to potential impeachable conduct by a president is heightened when the executive branch willfully obstructs channels for accessing other relevant evidence.”

She went a step further, according to The New York Times…

And in a rebuke to the Trump administration, she wrote that the White House strategy to stonewall the House had actually strengthened lawmakers’ case. She cited Mr. Trump’s vow to fight “all” congressional subpoenas and an extraordinary directive by his White House counsel, Pat A. Cipollone, that executive branch officials should not provide testimony or documents to impeachment investigators.

Howell made one other important point on that issue in her ruling, noting that the White House had not attempted to work with Congressional investigators in good faith to resolve the central conflict between a president’s right to have private deliberations with his or her advisors and Congress’s right to check the executive branch.

That matters because the Trump regime is claiming that his senior advisers enjoy something they’re calling “Constitutional immunity” from Congressional oversight. The Times described “Constitutional immunity” as “executive privilege on steroids.” According to the White House’s lawyers, Trump doesn’t need to invoke executive privilege to protect specific information, his top advisers can simply refuse to show up if they get a subpoena from Congress. And while that claim of unqualified immunity clearly contradicts key Supreme Court four key rulings from the Nixon era, in more recent cases, the courts have ruled that it was improper for the judicial branch to intervene in standoffs over executive privilege claims “unless the branches have made a good faith effort at compromise without result.”

In her ruling, Howell made it clear that the White House hasn't acted in good faith and their cockamamie claims of absolute immunity are therefore judicable.

And that’s important because a senior White House official sued both Trump and Congress this week, arguing that he was caught between a House subpoena requiring his testimony and his boss’s order to tell Congress to go pound sand. Charles Kupperman, who served as Trump’s deputy national security adviser, asked the court for a speedy ruling, which will impact other potential witnesses, including John Bolton, who is represented by the same attorney as Kupperman.

Keep in mind that this fight is not only about Trump and his comportment in office, but also the separation of powers itself. While there is no historical precedent for Trump’s impeachment, there are judicial precedents to consider. And these rulings will become precedent that guides the courts in future disputes between the executive and legislative branches.

And with that, let’s move onto this week’s roundup…

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This guy isn’t bothering to assert any kind of executive privilege, he just doesn’t want to talk about his work separating families at the border given that he’s about to leave office anyway…

Kevin McAleenan, the acting Homeland Security secretary, is challenging a subpoena to appear before a congressional committee to discuss terrorism threats to the U.S. on the day before he’s set to leave office. [via the AP]

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Meanwhile, nobody knows who might replace him, according to The NYT…

Nearly a year before the 2020 election, President Trump is running out of options in his search for a leader for the Department of Homeland Security who could win Senate confirmation or even serve in an acting capacity — and still carry out the president’s immigration crackdown.

The White House’s top personnel official advised Mr. Trump on Monday that two potential choices to lead the department, Kenneth T. Cuccinelli II, the acting director of the agency overseeing legal immigration, and Mark Morgan, the acting commissioner of Customs and Border Protection, are both ineligible for the position of acting homeland security secretary under [] federal law…

No biggie—just the agency charged with keeping Americans safe.

The agency has been left riddled with vacancies and marred by instability as Mr. Trump has turned it into the mechanism of his signature campaign issue — a crackdown on illegal immigration — and ignored more mundane procedures attached to immigration policy.

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Some DHS work appears to be unaffected by the staffing issues, according to WaPo. “The American Civil Liberties Union said Thursday that the Trump administration separated 1,556 more immigrant children from their parents at the U.S.-Mexico border than has previously been disclosed to the public,” reported Maria Sacchetti.

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Your Manbaby-in-Chief…

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Nobody gets rolled like Mr. Art of the Deal…

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Rudy Giuliani is trying to make a scandal out of Hunter Biden helping a Romanian businessman navigate charges of corruption. The problem, according to Ken Vogel of The NYT: “Mr. Giuliani participated in an effort that would have helped the same executive, and was in fact recruited to do so by Louis J. Freeh, a former F.B.I. director who had been brought onto the matter by Hunter Biden.”

While Hunter and Rudy were “on the same team,” their efforts “stood in contrast to efforts by the United States, including Vice President Biden while he was in office, to encourage anti-corruption efforts in Romania.”

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Fighting corruption overseas was a priority of the previous administration.

“The Trump administration has sought repeatedly to cut foreign aid programs tasked with combating corruption in Ukraine and elsewhere overseas, White House budget documents show, despite recent claims from President Trump and his administration that they have been singularly concerned with fighting corruption in Ukraine,” according to Erica Werner at the WaPo.

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It’s all so embarrassing…

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This nomination appears to be on hold after Sen. Susan Collins (R-ME) said she would not vote to confirm Menashi.

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Compare and contrast:

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On Tuesday, the Senate confirmed anti-choice zealot Andrew Bremberg to serve as U.S. ambassador to the UN and other international fora in Geneva. Bremberg helped draft the global gag rule that bars organizations that receive US funding from even discussing abortion.

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David Dunlap, a former chemicals expert for Koch Industries, said that he had voluntarily recused himself from any discussion about taking formaldehyde off of a list of potentially dangerous chemicals to avoid a conflict of interest. But CREW found that Dunlap had “participated in email discussions related to a formaldehyde assessment at least twice after he had informed EPA ethics officials that he intended to steer clear of the issue.”

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“A federal judge has fined U.S. Education Secretary Betsy DeVos for contempt of court for failing to stop collecting loans from former students of a now-defunct chain of for-profit colleges,” according to NPR.

DeVos has been fighting for for-profit institutions’ right to rip off kids relentlessly since buying her way into office.

“The court ruling orders the Education Department to pay a $100,000 fine. The judge said Devos had violated an order to stop collecting loans owed by students who had been defrauded by Corinthian Colleges.”