May 10, 2019


How Nancy Pelosi Can Expose Trump and Barr's Extraordinary Power Grab (HEIDI LI FELDMAN, MAY 09, 2019, Slate)

The practice of congressional investigation and exacting of witness testimony dates back to at least 1792. Congress' power to subpoena witnesses and documents has been fully articulated and entrenched in U.S. constitutional law since 1927, when the Supreme Court decided McGrain v. Daugherty, a case that itself pitted the U.S. attorney general against a Senate committee investigating him for misconduct. The decision in McGrain firmly established the principle that inherent in the Constitution's grant of legislative powers to Congress is the power to investigate and obtain information necessary to legislate, including by means of subpoena. Subsequent decisions strengthened and enhanced this proposition.

Existing Supreme Court precedent on executive privilege, meanwhile, is sparse and arises from factual and legal circumstances entirely different from those posed by a congressional inquiry into presidential misconduct. The main cases date from the Nixon era. In one, U.S. v. Nixon, the Supreme Court squarely acknowledged a presidential interest in confidentiality in communications between executive branch officials. But the court actually held that, in the circumstances, the president's interest in confidential communications with executive aides was outweighed by the needs of justice in criminal adjudication. Nixon had to hand over the tapes that eventually brought down his presidency.

Posted by at May 10, 2019 12:02 AM