Congress and the President

Congress and the President

 Our Democratic system is based on three co-equal branches of government whose roles are described and circumscribed by the US Constitution and by respect for the laws they enact and the court decisions they render. Even as we may disagree on policies and politics of these three branches, we need now more than ever the support and leadership of individuals who value each of the pillars of American democracy.

The President of the United States takes an oath of office prescribed by the US Constitution as follows: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Each elected Congressperson takes the following oath. “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”

Each appointed and confirmed judge or justice takes the following oath of office: “I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.”

Cabinet members and all other appointed officials, including the military, take the following oath of office: “I, ---, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

These solemn oaths of office are due to the nation’s founding principles when we revolted and broke away from King George and British rule. At the time, there was great fear of an unchecked, imperial executive and an equally strong fear of foreign interference (at that time Britain and France). Later on we experienced the long, bloody national trauma of the Civil War; thus domestic treason by the Confederacy and its supporters was a major concern underlying the evolution and wording of these oaths of office.

Contrary to the President’s expectations, the federal government employees and officials and cabinet members do not owe personal loyalty to him, but rather to the Constitution and the duly enacted laws of the nation. That includes court decisions and precedents, duly enacted laws and regulations and the Constitution itself. The Congressional Democrats are not the enemy, but rather an essential part of Constitutional scheme. Reporters and newspapers are not the enemy, but rather a fundamental component of our nation’s founders Constitutional famework.

Our Constitution prescribes an independent judiciary (Article 3), an independent law making Congress (Article 1), an elected President who faithfully executes and implements the laws passed by Congress (Article 2), and the rights of a free press and individual freedom of expression (First Amendment).  We are not an autocracy, but rather a nation that adheres to the rule of law.

Under our Constitution, the President signs (or vetoes) the Acts of Congress; he does not write the laws; that is the exclusive role of Congress. US Constitution, Article 1, Section 1. The oversight role of Congress to see that its laws are being faithfully executed by the Executive and to assess what policy changes are needed is long standing. https://history.house.gov/Institution/Origins-Development/Investigations-Oversight/

Under the US Constitution, Article 2 governs our President. His roles are to faithfully execute the laws passed by Congress, serve as Commander in Chief, grant Pardons and Reprieves, make treaties and appoint officers and judges of the US with the advice and consent of the Senate. “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

This constitutionally divided governance of checks and balances among the executive, legislative and judicial branches has been difficult for all Presidents and Congresses to negotiate, but it has been particularly challenging for President Trump possibly due to his lengthy business tenure running his own company with few or no internal checks or balances and possibly to his lack of political and governmental experience and the requisite temperament in dealing with the co-equal branches of government in Congress and the Courts. Successful governance in the US requires, at a minimum, respect for the three independent branches of government as delineated in the US Constitution.

During and after the Presidential campaign, there was a serious concern by the intelligence agencies that Candidate and President Trump was aligned with the Russian government, a US adversary on many fronts both militarily and diplomatically, that President Trump “hoped” to convert into a strategic ally. Special Counsel Robert Mueller was appointed to investigate two criminal issues: first, the relationship between Russia’s interference in the US Presidential election of 2016 and the Trump campaign, and second, whether the President obstructed justice in impeding the investigation of Russian interference as highlighted in his firing of FBI Director Mueller. The Mueller report found that the Russians interfered extensively in the 2016 Presidential election with the goal to defeat Secretary Clinton and elect President Trump. Mueller Report, vol. 1, p. 1. It did not find sufficient evidence to charge a criminal conspiracy between the Russians and the Trump campaign. Mueller Report, vol. 1, p. 2. It did however find numerous linkages between members of Trump campaign and the Russians, and it documented unsuccessful efforts by each to reach out to the other (e.g. the meeting of Donald Trump Jr. Paul Manafort and Jared Kushner with the Russians did not produce any actual “dirt” on Secretary Clinton; the Russians tried but could not find the Clinton personal e-mails requested by Candidate Trump). Mueller Report, vol. 1, p. 2. It successfully prosecuted a number of Trump campaign staff and attorneys, including Papadopolous, Flynn, Manafort, Gates, and Cohen, who lied to the FBI about their Russian connections.

The Mueller report investigated at least ten separate instances of obstruction or attempted obstruction of justice by President Trump about the events in question. Mueller Report, vol. 2, pp. 3-6. These ranged from witness tampering, efforts to impact jury and judicial deliberations and efforts to fire or remove Special Counsel Mueller and his investigative team. The Mueller report did not exonerate the President, but rather it found the facts and then left the hot potato in Congress’ lap to decide what if any steps to take on obstruction of justice. Mueller Report, vol. 2, p. 8. Attorney General Barr separately concluded that the evidence compiled by Special Counsel Mueller on these matters was not legally sufficient to criminally charge the President with obstruction of justice. His reasoning was that the President’s campaign team had not committed an underlying crime, and the President’s efforts to interfere with the investigation and prosecutions were for the most part highly public, rather than secretive. https://www.reuters.com/article/us-usa-trump-russia-summary/letter-from-attorney-general-to-congress-on-mueller-report-idUSKCN1R50SV I’m not sure either one of these is a valid legal defense to an obstruction of justice charge.

At the moment, Congress and the Trump Administration are fighting about whether the relevant Congresspersons can view the redacted portions of the Mueller report. The redactions in question involve matters of national security, pending judicial prosecutions and witnesses’ grand jury testimony. From the materials preceding and following the redactions, they appear to involve Campaign Manager Manafort who allegedly continued to lie to the Special Counsel about his Russian connections and actions, and Trump consigliere Roger Stone who has been charged but not yet been tried for lying about his role in Wikileaks’ publishing the DNC and Podesta emails stolen by the Russians. It is unclear what other important or unimportant matters and information have been redacted.

The other areas of Congressional inquiry include the President’s finances, foreign emoluments, and tax returns. The financial issues are the President’s loans from and payment history with Deutsche Bank when no other bank would finance him due to his poor credit history, litigiousness, and financial losses; some of the questions about this financing raise issues of favors, fraud, foreign influence and corruption. https://www.npr.org/2019/05/09/721723204/deutsche-bank-is-the-rosetta-stone-to-unlock-trump-finances-journalist-says The foreign gifts and emoluments issues are whether the Saudis and UAE and others have been financing the President and his son in law’s business ventures in the expectation of receiving the diplomatic and military favors, which they have now garnered. https://www.cnn.com/2019/05/03/politics/emoluments-clause-definition-trump/index.html The tax return issues revolve around the President’s compliance with federal tax laws and potentially fraudulent tax evasions and other murkier financial dealings with foreign interests.  https://www.vox.com/policy-and-politics/2019/5/10/18537282/trump-tax-returns-congress-irs Congressional authority to review an individual’s tax returns date back to the Harding Administration’s widespread scandals and corruption. It is unclear how much if at all President Trump has been using his candidacy and his Presidency to enrich his corporation, his family and himself. The use of Trump Tower, Mar a Lago, Bedminster and his Washington hotel are matters of concern as well as his directives to federal agencies to take actions for the benefit of his campaign contributors and friends; he has declined to cleanly separate his personal and business affairs from his position and decisions as President. Other issues involve the issuance of top security clearances to individuals close to the President, overriding the recommendations of the intelligence agencies. At the moment, we are in standoff where Congressional investigators and Trump Administration defenders appear to be locked in at a Constitutional “Ground Zero”.

Prepared by: Lucien Wulsin

Dated: 5/13/19

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