Teri Kanefield+ Your Authors @Teri_Kanefield Author, lawyer (UC Berkeley) My threads are here: terikanefield-blog.com/ NBC News Opinion contributor Impeachment notes: impeachment-trump.com/ Apr. 10, 2019 3 min read + Your Authors

(Thread) A Constitutional Showdown on the Horizon

ApexCat, it seems we’re pretty much in the same place we were when Barr published his “summary” of Mueller’s report.

Barr testified today that he will not give Congress an unredacted report

The constitutional issue is this:

1/ Who gets to decide whether a president is guilty?
Congress, or the Attorney General appointed by the president?

Article I, § 2, cl. 5 gives the House of Representatives “the sole power of impeachment.”  https://www.archives.gov/founding-docs/constitution-transcript 
So under the Constitution, Congress decides.

Nadler promises that if Barr doesn’t give an unredacted report to Congress, he'll issue a subpoena & fight it out in court.

Rep Schiff, too, requested the unredacted report, so the Dems are "fighting a two-front war.”

3/ If House Dems issue a subpoena, and Barr ignores it, the case will likely go to the Supreme Court, where one of two things may happen.

SCOTUS orders Barr to turn over an unredacted report.
SCOTUS says that Barr does not have to hand it over.

4/ I have a hard time imagining the second possibility because the Constitution is clear on who determines presidential guilt.

But weirder things have happened.

The Supreme Court has, in the past, issued some pretty terrible opinions.

5/ Tier one Terrible: Dred Scott v. Sandford, Plessy v. Ferguson
Tier two Terrible: Lochner v. New York, Bush v. Gore, Citizens United

So it wouldn’t be the first time the Supreme Court screws up.

Even in the case of a terrible SCOTUS decision, the House has options.

6/ They can call the people who wrote the report to testify. If the material is classified, they can testify behind closed doors.

Or Congress can try to get the unredacted report through a provision in the Patriot Act combined with the notification provisions . . .

7/ . . .in the National Security Act. For the procedure, see:  https://www.nytimes.com/2019/04/08/opinion/subpoena-mueller-report-intelligence-.html?smid=nytcore-ios-share 

Barr says his redacted report will be public within the week.
He also said his redactions will fall into 4 categories.
First category: Grand Jury material, which he says is secret by law.

8/ In fact, there are legal means to get Grand Jury material released. Moreover, much of what is often labelled "GJ" comes from different sources and is thus not subject to the secrecy rule. @delavegalaw has been covering this in her twitter feed.

9/ The other categories are:
2. Material that may reveal foreign intelligence sources or
3. Material that implicates on-going investigations or
4. Material that violates the privacy of “peripheral” players.

10/ If Barr redacts material damaging to Trump while pretending it falls into one of these categories, he’s taking a risk because one way or another, the House Dems will find out what’s behind the redactions.

That was the end of the thread. I'll answer questions.

CSHecht, there are strategic reasons to wait to see what Barr does. Once the House lawyers see the redactions, they'll have a better idea how to frame their arguments.
Someone asked . . .

. . . Nadler why he was waiting for Barr to release his report before issuing a subpoena and he said he wanted to show the courts that they "we're making every effort to accommodate" the Justice Department.


It looks like evidence has been handed off to other prosecution offices. We'll know more when we see the report.

I assume for the same reasons I feel confident. There are multiple ways for the House to learn what's behind the redactions.

Adding: Remember all those redactions in the court docs so far, particularly Manafort's court transcripts?

Those redactions were there because of on-going investigations. In due time, the unreacted docs can be made public.

Just another way to get to the truth.

In response to a few questions:
I don’t believe the Supreme Court would rule for Trump, even though the Court leans so far to the right. Roberts is concerned with Court's prestige, and has pushed back against Trump.
Moreover, right now the Court . . .

. . . has a lot of power, and the justices are safe from Trump's tantrums or mob-like orders.

If they rule that the AG can cover up for a president—including covering up serious crimes—what would stop Trump from entering a conspiracy to kill a SCOTUS justice he doesn't like?

All of my threads are now blog posts. You can view this one here:  https://terikanefield-blog.com/constitutional-showdown-on-the-horizon/ 

You can follow @Teri_Kanefield.


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