Monday, November 04, 2019

Message Sent


The appeal went up on October 7, 2019.

Less than a month later.....

But wait, it's the internet:  of course there's more!

The President has not persuasively explained why, if executive privilege did not preclude enforcement of the subpoena issued in Nixon, the Mazars subpoena must be enjoined despite seeking no privileged information and bearing no relation to the President’s performance of his official functions.
Oops.  And the rest of that paragraph pretty much shreds the new claim of "absolute immunity" that Trump is bruiting about:

The Nixon Court explained that even the President’s weighty interest in candid and confidential conversations with his advisers could not justify a blanket privilege that would “cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts.” Id. at 712. 
And for good measure:

Tellingly, although Nixon asserted both a claim of executive privilege and of presidential immunity from judicial process, the Court’s analysis focused almost entirely on privilege. That the Court felt it unnecessary to devote extended discussion to the latter argument strongly suggests that the President may not resist compliance with an otherwise valid subpoena for private and non‐privileged materials simply because he is the President.  

And oh by the way, in a footnote:

12 We note that the past six presidents, dating back to President Carter, all voluntarily released their tax returns to the public. While we do not place dispositive weight on this fact, it reinforces our conclusion that the disclosure of personal financial information, standing alone, is unlikely to impair the President in performing the duties of his office.
And to make sure everyone gets the point:

It is true that the President “occupies a unique position in the constitutional scheme,” Fitzgerald, 457 U.S. at 749, and we are mindful of the Supreme Court’s admonition that a court should not “proceed against the president as against an ordinary individual,” Nixon, 418 U.S. at 708 (quoting Burr, 25 F. Cas. at 192). For example, historical practice suggests that a court may not compel the President to personally attend trial or give live testimony in open court. See Clinton, 520 U.S. at 692 n.14. In the context of a subpoena, the “timing and scope” of any production from the President must be informed by “[t]he high respect that is owed to the office of the Chief Executive.” Id. at 707. And in holding that a former president was entitled to “absolute immunity from damages liability predicated on his official acts,” the Supreme Court quoted with approval Justice Story’s conclusion that the President is not “liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office.” Fitzgerald, 457 U.S. at 749 (quoting 3 J. Story, Commentaries on the Constitution of the United States § 1563, pp. 418–19 (1st ed. 1833)).

But we are not faced, in this case, with the President’s arrest or imprisonment, or with an order compelling him to attend court at a particular time or place, or, indeed, with an order that compels the President himself to do anything. The subpoena at issue is directed not to the President, but to his accountants; compliance does not require the President to do anything at all. 

And by the way:  don't emulate your client and tell lies in public:

14 At oral argument, the President suggested that Nixon either did not think to, or deliberately chose not to, raise an argument of presidential privilege. That is not accurate. See Nixon, 418 U.S. at 706 (noting that “[t]he second ground asserted by the President’s counsel in support of the claim of absolute privilege” is “that the independence of the Executive Branch . . . insulates a President from a judicial subpoena in an ongoing criminal prosecution”); see also Sirica, 487 F.2d at 708 (“Counsel argue, first, that, so long as he remains in office, the President is absolutely immune from the compulsory process of a court . . . .”).
Yeah, that's called "getting poured out," as in "poured out like water."  Nothing Trump's lawyers said had any sway with the Court (well, the Younger abstention issue went against the trial court's opinion, but was not dispositive of issues in the case, so....)
 

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