Minority report

https://www.vox.com/2020/3/11/21173437/trump-judge-neomi-rao-mueller-grand-jury-dc-circuit

Does the dissenting opinion of this Trump-appointed judge put a lie to Chief Justice Roberts’ claim that there are …”no Obama Judges, or Trump judges, or Bush judges”….?

Judge Reo’s opinions don’t seem to hold up under the microscope of ruling on the Constitutionality of actions by the House.

“Rao, meanwhile, wrote a dissent arguing that the Constitution forbids Congress from investigating “illegal conduct by the President” unless that investigation takes place during an impeachment investigation.

As Tatel noted in the court’s majority opinion, “no case law supports the dissent.” Rather, the Supreme Court’s decisions establish that “Congress’s ‘authority … to require pertinent disclosures in aid of its own constitutional power is not abridged’ merely ‘because the information sought to be elicited may also be of use’ in criminal prosecutions.”

Her opinions appear protective of Trump and not of the Constitution.

24 thoughts on “Minority report

  1. Interesting post.

    To me it comes back to the Roy Cohn theory of American justice: “Who’s the judge?”

    This was clearly the legal standard for Trump’s 3500+ lawsuits. Some say that number is natural for anyone with far flung business ventures. Considering about 30 years at most of Papa Fred-free business (except for financial bailouts of bankruptcies), that is a lawsuit every 3 days year round. I would venture that a busy law practice would be thrilled with that volume of judicial activity.

    So Rao’s twisted dissents are, to me, evidence of serious partisan favoritism. Especially since the majority consisted of Clinton and Bush appointees whose opinions stood on solid Constitutional grounds.

    IMHO

    Liked by 2 people

  2. So, it is your contention that the Subpoena powers of Congress trump the 4th Amendment right to be secure in our personal papers and effects?

    What is the legislative purpose and is it disclosed in the subpoena?

    Grand Jury proceedings are secret for a reason. They are one sided and the defendant is not represented. The reasons they can be shared with other investigators are very limited and do not include opposition research for a coming election. There are no provisions for making them public. Yet everything that gets to Schiff’s committee gets to the press.

    Absent clear legislative purpose, not political purpose, the judge is absolutely correct.

    No Congress has ever done this before.

    Like

    1. “No Congress has ever done this before.” Because there has never been so questionable of a President before.

      Who are you to determine if there is a legislative purpose or not? 2 of 3 judges saw it as Constitutional. Only the Trump-appointed judge spun it to protect Trump.

      Liked by 1 person

        1. “everything that gets to Schiff’s committee gets to the press“

          Not remotely true.

          And NO legislative purpose needs to be “outlined”.

          You are WAY off your game lately…Trump defense fatigue???

          Liked by 1 person

        2. I would say, having not seen the actual subpoena, investigation for potential impeachment. new evidence that was not made available previously goes a long way and is justification enough.

          But you defense of Trump, who you support 99.99% of the time is noted. As is the hypocrisy.

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          1. That would be because 99.99% of the accusations are baseless or political.

            And if you don’t know the basis for the subpoena, then you can’t honestly assert they were valid. Grand Jury proceeding are secret except in very compelling circumstances, if Grand Jury secrecy is to be violated, it is your burden to establish the justification.

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          2. “That would be because 99.99% of the accusations are baseless or political.” If that is what you believe, fine. I disagree. As does the majority of the court.

            “And if you don’t know the basis for the subpoena, then you can’t honestly assert they were valid. ” And YOU cannot honestly say they are invalid.

            “Grand Jury proceeding are secret except in very compelling circumstances, if Grand Jury secrecy is to be violated, it is your burden to establish the justification.” Not mine, but the Committee. And in the eyes of the court, they have done so.

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    2. …” it is your contention that the Subpoena powers of Congress trump the 4th Amendment right to be secure in our personal papers and effects?” No, it is my contention that Mr. Trump gave up some of those rights when he was sworn in on Jan 21, 2017. As a public person, records that have to do with illicit or illegal acts are NOT protected. And in order to affirm the acts as illegal OR legal, the information is required. Those conducting the investigations should be entitled to that information to make the informed decision. If there is no there, there, then what is the problem?

      Remember Watergate. It wasn’t the crime; It was the cover-up. This reeks of attempting to cover Trumps 239 pound (ha!) backside. And now one of his own appointed judges is trying to assist, with zero Constitutional backing.

      Like

      1. No one,including the President, gives up their 4th Amendment rights.

        “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”

        Note that probable cause is required, and there must be a specified target of the search.

        The same applies to subpoenas, so where is the probable cause and what is being searched for?

        Simply wanting all of Trumps records hoping they will find something illegal or more likely, embarrassing, to use for campaign advantage is not adequate.

        Like

        1. There is more anecdotal evidence of Trump’s malfeasance then there is of Biden corruption in Ukraine, so stop trying to twist it so the Biden investigation is just fine, but investigating Trump is unconstitutional.

          You cannot have it both ways.

          Like

  3. RE: “Her opinions appear protective of Trump and not of the Constitution.”

    Vox clearly seeks to create that impression, but the allegation would be hard to prove. You’d have to show that Trump personally, and not the constitutional office of the presidency, is primary among Judge Rao’s concerns. Vox offers no evidence for that.

    Also, a lot depends on how you think the Constitution is supposed to work. Most people accept that the Constitution defines the roles and responsibilities of the three branches of the federal government, and specifies the actions each branch may commit. Judge Rao raises the question whether actions not so specified are permissible. As Vox put it:

    “Rao, meanwhile, wrote a dissent arguing that the Constitution forbids Congress from investigating ‘illegal conduct by the President’ unless that investigation takes place during an impeachment investigation.”

    This is a reasonable interpretation of the founding document. Congress’s main role, after all, is to enact legislation, not to oversee or investigate the Executive. To be prohibited from the latter is actually implied by the former.

    Like

    1. “This is a reasonable interpretation of the founding document. Congress’s main role, after all, is to enact legislation, not to oversee or investigate the Executive.”

      I disagree with your interpretation. As a co-equal branch of the government, the investigative duties of Congress have been ruled on repeatedly in the past. And there is precedent for her opinion.
      “As Tatel noted in the court’s majority opinion, “no case law supports the dissent.” Rather, the Supreme Court’s decisions establish that “Congress’s ‘authority … to require pertinent disclosures in aid of its own constitutional power is not abridged’ merely ‘because the information sought to be elicited may also be of use’ in criminal prosecutions.””

      Your cherry picking is noted.

      Liked by 1 person

    2. RE: “the investigative duties of Congress have been ruled on repeatedly in the past”

      The Constitution gives Congress no such “duties.” Its authority to conduct investigations is an implied power that comes into existance only in the pursuit of actions the Constitution specifically authorizes, such as legislation or impeachment.

      RE: “no case law supports the dissent”

      This is irrelevant. It means nothing.

      RE: “Your cherry picking is noted”

      What do you mean by this? What “cherry picking” are you accusing me of?

      Like

      1. Implied duties have been used for over 230 years. Now YOU want the rules changed to protect Trump. Gotcha.

        In the courts, precedence is never irrelevant

        You “cherry picked” the part of Reo’s argument while ignoring the MAJORITY opinion.

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      2. RE: “Implied duties have been used for over 230 years.”

        To emphasize, there are no such “duties,” only powers, and only powers which exist in a constrained form.

        RE: “In the courts, precedence is never irrelevant”

        In the courts, the lack of precedents is often irrelevant. Where this not true, the very first court case, and many to follow, could not even occur.

        RE: “You ‘cherry picked’ the part of Reo’s argument while ignoring the MAJORITY opinion.”

        The majority opinion isn’t relevant to the point I wrote about, for the reasons given here for the second time.

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        1. But the majority opinion is the only one that counts. The fact that the Honorable Reo took the time to compose a dissent so reeking of political payback does not change the fact that she is, in the eyes of the justice system, dead wrong.

          But your loyalty to Mr. Trump will never be repaid in any way, shape or form. But I give you credit for standing by it, no matter how baseless it is.

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  4. “ As the majority opinion explained in Mazars, Congress has broad authority to conduct investigations so long as those investigations have a “valid legislative purpose,” which includes any investigation that touches on a matter “on which legislation could be had.” Judge David Tatel’s majority opinion held that the House may investigate Trump’s financial records because those records could reveal whether stricter presidential ethics laws are needed.”

    Recall that such issues have been a concern with Trump for two reasons. First, he promised but reneged to reveal his tax returns by lying about an audit preventing such via IRS rules. Second, his far flung international business enterprises and dealings with countries and their oligarchs could reasonably be expected to affect his foreign policy decisions. That this is a new phenomenon is certainly reason enough to revise ethics legislation regarding presidential activities.

    That there may or may not be leaks is a different issue. If every criminal investigation were halted because of potential leaks, we would have no investigatory powers at all in law enforcement. Punish the leakers. But that does not necessarily exonerate the suspect.

    Liked by 1 person

    1. RE: “That this is a new phenomenon is certainly reason enough to revise ethics legislation regarding presidential activities.”

      It is not really a new phenomenon. George Washington also had significant international business dealings.

      Reasoning backward from a desire to investigate Trump is not a rational way to find justification for doing so.

      Like

  5. Sure, show me the list of those who have been punished for previous leaks from the Democrat Congress?

    The issue at hand was not Trump’s tax return, it was Grand Jury proceedings, which, being one sided, are not valid research for future ethics legislation. You don’t make law based on one side of an issue.

    This is a sham. It is purely political espionage with no legitimate legislative purpose. You just approve because it’s not your ox being gored.

    But of course, with the president set, someday it will be.

    Like

    1. Prove “leaks”. Release of information to the public of NONCLASSIFIED information is NOT illegal. And there was no release of CLASSIFIED information any time during the proceedings.

      Like

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