Democrats Creep from Collusion to Obstruction

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In a cart before the horse scenario, Rep. Jerrold Nadler (D-NY), chairman of the House Judiciary Committee, stated with certainty that he believes President Donald Trump is guilty of obstruction of justice. Nadler declared this as his committee initiated an investigation to ostensibly determine whether or not the president obstructed justice.

Nadler’s panel sent out 81 document requests and subpoenas as part of an unprecedented partisan probe launched at a time it is widely believed that Special Counsel Robert Mueller is wrapping up his investigation and issuing a report.

Nadler, who has evidently come to a conclusion prior to his committee’s investigatory work, has also moved past the Mueller report, apparently amid concerns that it will contain no evidence of the supposed Russian collusion, which the Democrat Party and its allies in the left-leaning media have been obsessing over for more than two years.

Politico has cautioned those who are eagerly anticipating the special counsel’s report to “prepare for disappointment.”

Despite denials from certain members of the party, Nadler and his ilk are on an endless search for a rationale that they will be able to sell to the public so that impeachment of the president can be pursued and the 2016 election can be reversed.

“I think Congressman Nadler decided to impeach the president the day the president won the election,” House Minority Leader Kevin McCarthy (R-Calif.) said. “Show me where the president did anything to be impeached…Nadler is setting the framework now that the Democrats are not to believe the Mueller report.”

Nadler opined that the president is guilty of obstruction of justice, citing the “1,100 times he referred to the Mueller investigation as a ‘witch hunt.’” He additionally pointed to President Trump’s 2017 firing of then-FBI director James Comey.

“It’s very clear that the president obstructed justice,” Nadler stated.

Nadler’s determination prior to the investigation begs the question: Can a case be made against President Trump for obstruction of justice?

There are two serious impediments facing Nadler and other Democrats who are looking to impeach a sitting president using an obstruction of justice charge. The first impediment is the law and the second involves politics.

An analysis of the current facts results in a finding that there is no viable case for obstruction of justice. A sitting president who exercises legitimate constitutional power cannot be guilty of obstructing justice for merely acting on such power.

In this case, President Trump carried out tasks in which he is fully authorized to engage, using powers inherent to the office of the presidency and granted by the Constitution. These powers grant to the president the ability to hire and fire officials under his charge, including FBI Director Comey.

Even if the president had suggested a de-escalation of an investigation, as Comey alleged, this would not constitute obstruction, since the Chief Executive is, in fact, in charge of the executive branch of government.

Immediately after the president relieved Comey from his position, the former FBI director leaked copies of memos to the New York Times in which Comey had written that President Trump asked him to drop the investigation into then-National Security Advisor Michael Flynn.

The Comey firing was explicitly recommended via a memo from Deputy Attorney General Rosenstein to then-Attorney General Jeff Sessions, which stated, “Almost everyone agrees that the Director made serious mistakes; it is one of the few issues that unites people of diverse perspectives. The way the Director handled the conclusion of the email investigation was wrong. As a result, the FBI is unlikely to regain public and congressional trust until it has a Director who understands the gravity of the mistakes and pledges never to repeat them. Having refused to admit his errors, the Director cannot be expected to implement the necessary corrective actions.”

Obstruction of justice additionally requires a showing that the party who is obstructing possessed corrupt intent to interfere with, or had attempted to interfere with, the proceeding or investigation.

This means that the intentional aim of the interference is for self-interest.

Decisions made by a president that have arguable benefits for the people that the president serves are difficult for prosecutors to characterize as having the requisite corrupt intent.

President Trump’s decisions were arguably made to benefit the nation that his executive branch serves.

With regard to the tweets, presidents have a First Amendment right to express opinions. Moreover, the chief executive must freely express points of view as the leader of the executive branch.

President Trump’s tweets are not orders to those subject to his authority. They are instead expressions of ideas, thoughts, beliefs, and proposals to the people.

If President Trump had desired to interfere with the Mueller probe, he could have ordered it to be defunded, minimized, or terminated. Instead he chose to express opinions using his Twitter account.

Prior to taking the office of attorney general, William Barr penned a memorandum indicating that a president should not be prosecuted over conduct that is less than clearly serious criminality.

Does this mean that a sitting president cannot commit obstruction of justice? Of course not.

However, to commit a prosecutable offense, the occupant of the oval office would have to do something outside the scope of his constitutional authority, such as bribing a witness, threatening a judge, or destroying evidence.

Politically speaking, obstruction of justice, if used as a hedge for the lack of evidence of collusion, will likely result in a public perception that a significant gap had occurred between the original purpose of the investigation and the endgame.

President Trump’s Emergency Declaration Will Survive Lawsuits

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According to Rep. Adam Smith (D-Wash.), the new Chairman of the House Armed Services Committee, President Donald Trump possesses the lawful authority to use emergency powers to fund and build a barrier at the border.

In response to an interview question about the legality of the president’s recent emergency declaration, Smith told host of ABC’s “This Week” George Stephanopoulos, “Unfortunately, the short answer is yes. There is a provision in law that says the president can declare an emergency. It’s been done a number of times…” The congressman added that the president would be the recipient of a court challenge.

The lawsuit avalanche has just begun. More than a dozen states are filing suits challenging the emergency declaration. A case in point is the recent one declared by California Attorney General Xavier Becerra.

It is simply a fact that under existing law the suits should eventually lose when the U.S. Supreme Court ultimately gets the case.

Even Democrats such as Smith and various liberal legal commentators have admitted that President Trump has the statutory authority to declare the border crisis to be a national emergency, and he will therefore be able to adequately fund a border barrier.

The declaration by a president of a national emergency is nothing new. There have been 58 national emergencies declared since the National Emergencies Act of 1976 (NEA) was signed into law. Currently, there are 31 active national emergencies in effect. President Bill Clinton declared 17, and President Barack Obama declared 13 of them.

National emergencies exist today in remote places such as Yemen, Lebanon, Zimbabwe, Sierra Leone, Burundi, Myanmar, and Somalia. The current national emergency declared by President Trump deals with a crisis occurring on the U.S. Southern border.

The NEA was originally passed to rein in the authority of the president to use emergency power. The law requires the occupant of the Oval Office to renew declarations of emergencies annually, and it gives Congress the potential ability to terminate a state of emergency. Congress has routinely renewed most past declared emergencies without raising meaningful objections or litigation.

In order to terminate President Trump’s recent declaration of emergency, Congress must pass a joint resolution and submit it to the president for his signature. If the president were to veto the resolution, as President Trump would most certainly be expected to do, Congress would have to come up with a veto-proof supermajority to end the state of the emergency.

When Congress, via the NEA, granted the president the power to declare a national emergency, it did not define the meaning of the phrase. The power of any president to declare a national emergency ends up being very broad.

President Trump’s authority to do so does not arise solely from the NEA, though, but also from the presidential power to protect the nation and control the orderly process of entry into the United States.

Supreme Court precedent recognizes the power of the executive branch to control the admission and exclusion of foreign nationals and generally views this authority as mostly unsusceptible to interference by courts.

The funding for a border barrier has already been given the blessing of Congress via enacted legislation that was signed into law. The law of the land, as stated in the Secure Fence Act of 2006, is that a border barrier shall be built along the U.S. Southern border.

Democrats are alleging that President Trump’s emergency declaration is seeking to use an emergency as a means to obtain what Congress had refused to authorize. However, Democrats are evidently more than willing to have the judicial branch step in to end a declared emergency, rather than follow a law that specifically states how Congress is mandated to carry out the process of overriding an emergency declaration.

There was no mass rush to file lawsuits and no cries of abuse of power on the part of Democrats when President Obama, after stating that he did not possess the legal authority to do so, proceeded to bypass Congress after it refused to pass immigration reform. He simply created with a stroke of his pen a program that fundamentally altered immigration laws.

The former president additionally funded some significant parts of the Affordable Care Act, after Congress had denied him such funding. And he also funded the undeclared war in Libya, after Congress had turned down his funding request.

In is clearly apparent that Democrats are not concerned with the law, but rather they are in opposition to any kind of border barrier of which President Trump might be in favor. This is simply due to the fact that President Trump made the wall a centerpiece promise during his 2016 presidential campaign. Democrats have been relishing in anything they believe might harm him politically, and they continue to do so.

The ugly reality is that the primary reason Democrats are seeking to stop the construction of any type of border barrier is that barriers work, and they do not want anything to be implemented that might curb the mass migration of their would-be voters.