9 ms·

What's the legal reasoning (if there's any) to keep her locked up and ruin her financially while not being able to swing the same punishment at all those people

by cfv 7y ago

What's the legal reasoning (if there's any) to keep her locked up and ruin her financially while not being able to swing the same punishment at all those people who refused to testify in the recent impeachment?

paulddraper 7y ago
Presidents being impeached (and their administrations) have always refused Congress's requests for testimony and documentation. Congress can take the President to court and compel documents and testimony (or else face contempt of court and imprisonment like Manning). The House did exactly that for Nixon and Cliton. For Trump, the House chose not to do that, because (I believe) it would slow them down, and that wasn't acceptable to them.
- 0xff00ffee 7y ago
  How was Clinton testifying also him refusing to testify? Your claims differ from history.
  - cfv 7y ago
    From this point forward: https://www.google.com/amp/s/www.nytimes.com/2019/04/24/us/politics/donald-trump-subpoenas.amp.html https://www.google.com/amp/s/www.nytimes.com/2019/04/24/us/p... the DOJ has allowed the WH to refuse to comply with a bunch of subpoenas, and there's no amount of partisan rhetoric that can hide that fact. It's simply not up for debate, sorry. That said, I don't know what are they standing on to be able to do that without any court just sending them all to jail.
    - kbutler 7y ago
      https://legal-dictionary.thefreedictionary.com/executive+privilege https://legal-dictionary.thefreedictionary.com/executive+pri... "The right of the president of the United States to withhold information from Congress or the courts." The article you mentioned cites executive privilege multiple times, and describes how it is unclear what the boundaries are. Simply saying "The House issued a subpoena and therefore the executive branch must comply" is just as invalid as "The executive branch can ignore all subpoenas".
      - cfv 7y ago
        Look, I'm asking for an actual memo here, I'm not interested in playing whatever game you seem to want to play. Can you help me find this thing please?
        kbutler 7y ago
        Not sure what memo you're seeking or what game you're declining. You said you didn't know what the DOJ/Trump administration was standing on to not comply with the congressional subpoenas. I explained they were standing on executive privilege. As the article you linked described, the Trump administration was asserting executive privilege, and conflicts between congressional demands and executive privilege assertions need to be mediated by the courts ("But each of the emerging fights raises somewhat different legal questions that courts would have to sort through."). When the administration asserted privilege and declined to comply with House demands, the House chose proceed without court rulings, though courts probably would have compelled testimony about information previously revealed in the Mueller investigation. For more authoritative sources than your NY Times article provides, executive privilege has been recognized in various supreme court decisions, particularly in military and diplomatic issues, even in cases where the court decided the privilege did not cover the material demanded (like U.S. v. Nixon https://supreme.justia.com/cases/federal/us/418/683/#tab-opinion-1950929 https://supreme.justia.com/cases/federal/us/418/683/#tab-opi...). Executive privilege began as early as 1792 in George Washington's first term, when he decided he had authority to withhold information demanded by congress. https://www.thoughtco.com/presidential-executive-privilege-3322157 https://www.thoughtco.com/presidential-executive-privilege-3...
  - paulddraper 7y ago
    The impeachment inquiry started exactly because of an allegation of perjury. The ratified Articles of Impeachment were in fact (1) Perjury and (2) Obstruction of Justice (witness/evidence tampering). I may have mistakenly characterized Clinton as explicitly withholding information by invoking executive privilege like Nixon and Trump, rather than deceptively doing so. https://en.wikipedia.org/wiki/Impeachment_of_Bill_Clinton#Articles_referred_to_Senate https://en.wikipedia.org/wiki/Impeachment_of_Bill_Clinton#Ar...
- cfv 7y ago
  Congress was explicitly told they could not do this by the DOJ, but news weren't clear on the legal reasoning, relaying instead the handwavy explanation by Barr on the popelike infallibility of the president's office. I'm really curious about the actual legal reasoning behind this, it's got to be a fascinating read.
  - DrScump 7y ago
    The DOJ has no power over Congress in impeachment proceedings.
- Natsu 7y ago
  > For Trump, the House chose not to do that, because (I believe) it would slow them down, and that wasn't acceptable to them. The full House has to authorize a committee to to conduct an impeachment investigation and to vest it with the proper authority before the subpoenas become enforceable. The Democrats never did this because in that case, the Republicans in the House would have been able to send out their own subpoenas. See also: https://youtu.be/Z-9EOHyCZ4A https://youtu.be/Z-9EOHyCZ4A https://www.scribd.com/document/443783939/OLC-Opinion-Judicial-Enforcement-Authority-01-19-2020 https://www.scribd.com/document/443783939/OLC-Opinion-Judici...
elif 7y ago
I believe it has to do with the paperwork you sign when you enlist. Basically waiving a lot of your normal American rights.
- fabianhjr 7y ago
  > Basically waiving a lot of your normal American rights. "waiving your rights" is a very weird concept, particularly in the "land of the free".
  - craftinator 7y ago
    The US armed forces are not run as a democracy; it is an oligarchical tiered serfdom as near as I can peg it. When you sign up, nearly everything you agree to is in a binding legal contract with the US government, and if you breach contract, it is very different than breaching a normal contract. Part of that contract is that normal courts of law and their rules are secondary to military courts and all of their very, very power imbalanced rules. Source: myself, a decade in the Marine Corps, witness in several Non Judicial Punishment cases, and one Courts Martial case.
    - zz0rr 7y ago
      here's James Mattis's take on the difference between civilian courts and military courts: > ...remember that the Uniform Code of Military Justice is established under the U.S. Constitution, because our framers knew that those we give weapons to in this country have to be governed by a different set of regulations than the population at large. > And under the Uniform Code of Military Justice, which was the latest in a history of these rules that came out in the late 1940s and modified often since then, the defense is actually stronger. The defendants' rights are actually stronger in a military court than in a civilian court. Just read F. Lee Bailey's book, "The Defense Never Rests." And as one of the most aggressive defense counsels in our history, he said he would rather a court--defend--defend in a military court than a civilian court in his book. > And the reason is you have more rights in order to prevent the military court system becoming what you and I would call a "kangaroo court." So, you give the defense more rights. And when that court acts, you--for most of us in the military who have an intimate knowledge of it, we have a great deal of confidence that justice has been adhered to, in the true sense of what justice is all about toward a person accused of a crime by the government. this is a good interview, worth reading in full: https://www.washingtonpost.com/washington-post-live/2019/12/16/transcript-securing-tomorrow-with-gen-james-mattis-ret/ https://www.washingtonpost.com/washington-post-live/2019/12/...
jacobolus 7y ago
The reasoning is that the DOJ under Barr (and the administration in general) has no interest in cooperating with Congress or fulfilling their constitutional/legal obligations. If the Congress really wants it can enforce its own subpoenas by putting anyone who refuses to testify in their own jail, without asking the DOJ for help. This is a power that hasn’t been used since 1934, and the current Congress has opted to work through the courts / make appeals to the electorate instead of applying it.
- surge 7y ago
  Actually the way to settle differences between the branches is to use the third branch, the Judicial branch. Congress takes them to supreme/federal court, which decides if the subpoenas are valid and would then enforce the subpoenas and the executive branch then has to comply. Basic checks and balances. https://www.theatlantic.com/ideas/archive/2019/12/house-democrats-need-better-subpoena-strategy/602782/ https://www.theatlantic.com/ideas/archive/2019/12/house-demo... https://www.theatlantic.com/ideas/archive/2020/01/democrats-should-appeal-directly-roberts/605413/ https://www.theatlantic.com/ideas/archive/2020/01/democrats-...
  - servercobra 7y ago
    Congress already had the judicial branch confirm they have the power to hold people in contempt, but they didn't use that power in this case. https://en.m.wikipedia.org/wiki/Jurney_v._MacCracken https://en.m.wikipedia.org/wiki/Jurney_v._MacCracken
    - surge 7y ago
      So do it again. Honestly though, I think the impeachment just pointed out the Ukraine stuff about as much as it pointed out Trump's phone call shenanigans, it wasn't good for them politically to keep at it, his approval rating was going up and he was raising tons of money during it. It was backfiring politically for them, the majority of the public wasn't interested (especially after the Russia thing coming up empty, you can only cry wolf so many times) and it brought their own misdealing to light so they didn't push it as they would if they really cared.
Crontab 7y ago
My understanding is the Manning was refusing to testify to the Wikileaks/Assange grand jury - so this was basically being held for contempt of court.
anonymousiam 7y ago
I looked at all of the replies, but none of them mentioned the basic difference between a court proceeding (with lots of legal precedent) and a congressional impeachment (where they decide upon the rules they'll use, and are not bound by the Federal Rules of Civil Procedure). (I'm trying very hard to keep this comment non-partisan. I think I did it.)
- cfv 7y ago
  The concrete thing I can't find anywhere is the actual, on-paper set of rules this people set up, ideally grafted to some kind of explanation on why this ruleset made any sense in context.
cowsandmilk 7y ago
Congress has the same powers to jail you for being in contempt, they just haven’t in nearly a century. https://en.m.wikipedia.org/wiki/Jurney_v._MacCracken https://en.m.wikipedia.org/wiki/Jurney_v._MacCracken
kortilla 7y ago
They didn’t have immunity agreements where they agreed to testify in exchange?
ailideex 7y ago
How are the two things related?
- boomboomsubban 7y ago
  Both involve people refusing to testify, and why people are being treated differently is not obvious.
  - deleted 7y ago
    [deleted]
  - ailideex 7y ago
    Chelsea Manning was not jailed or fined for refusing to testify in and of itself. I also refuse to testify, for example, but I'm pretty sure no cop will come arrest me and put me in jail and no court will fine me. Context is a thing, and it is relevant here.
    - boomboomsubban 7y ago
      She was jailed for refusing to testify, and any relevant context is not clear, hence asking "why?"
      - ailideex 7y ago
        No, she was jailed because she was found to be in contempt of court.
        boomboomsubban 7y ago
        No, she was jailed to coerce her into testifying as she refused to. To be found in contempt of court, she would have needed to be charged.
    - dragonwriter 7y ago
      > Chelsea Manning was not jailed or fined for refusing to testify in and of itself. Yes, she was. > I also refuse to testify, for example, You can't refuse to testify if you haven't been called. You might be inclined to refuse to testify, but that's not the same as actually refusing.
notadev 7y ago
IANAL but I believe the normal protection against self-incrimination, the 5th Amendement, was not applicable due to the plea agreement she entered and thus was held in contempt of court for remaining silent.
- maxlybbert 7y ago
  Since Manning had already been tried for crimes related to this investigation (and found guilty, and served time), she could not be given further jail time. And because she could not be given further jail time, the courts had decided that making her testify to the grand jury about Assange wasn’t covered by the fifth amendment right to remain silent (which really only covers compelled self incrimination).
deleted 7y ago
[deleted]

by cfv 7y ago

paulddraper 7y ago

Presidents being impeached (and their administrations) have always refused Congress's requests for testimony and documentation. Congress can take the President to court and compel documents and testimony (or else face contempt of court and imprisonment like Manning). The House did exactly that for Nixon and Cliton. For Trump, the House chose not to do that, because (I believe) it would slow them down, and that wasn't acceptable to them.

0xff00ffee 7y ago
How was Clinton testifying also him refusing to testify? Your claims differ from history.
- cfv 7y ago
  From this point forward: https://www.google.com/amp/s/www.nytimes.com/2019/04/24/us/politics/donald-trump-subpoenas.amp.html https://www.google.com/amp/s/www.nytimes.com/2019/04/24/us/p... the DOJ has allowed the WH to refuse to comply with a bunch of subpoenas, and there's no amount of partisan rhetoric that can hide that fact. It's simply not up for debate, sorry. That said, I don't know what are they standing on to be able to do that without any court just sending them all to jail.
  - kbutler 7y ago
    https://legal-dictionary.thefreedictionary.com/executive+privilege https://legal-dictionary.thefreedictionary.com/executive+pri... "The right of the president of the United States to withhold information from Congress or the courts." The article you mentioned cites executive privilege multiple times, and describes how it is unclear what the boundaries are. Simply saying "The House issued a subpoena and therefore the executive branch must comply" is just as invalid as "The executive branch can ignore all subpoenas".
    - cfv 7y ago
      Look, I'm asking for an actual memo here, I'm not interested in playing whatever game you seem to want to play. Can you help me find this thing please?
      - kbutler 7y ago
        Not sure what memo you're seeking or what game you're declining. You said you didn't know what the DOJ/Trump administration was standing on to not comply with the congressional subpoenas. I explained they were standing on executive privilege. As the article you linked described, the Trump administration was asserting executive privilege, and conflicts between congressional demands and executive privilege assertions need to be mediated by the courts ("But each of the emerging fights raises somewhat different legal questions that courts would have to sort through."). When the administration asserted privilege and declined to comply with House demands, the House chose proceed without court rulings, though courts probably would have compelled testimony about information previously revealed in the Mueller investigation. For more authoritative sources than your NY Times article provides, executive privilege has been recognized in various supreme court decisions, particularly in military and diplomatic issues, even in cases where the court decided the privilege did not cover the material demanded (like U.S. v. Nixon https://supreme.justia.com/cases/federal/us/418/683/#tab-opinion-1950929 https://supreme.justia.com/cases/federal/us/418/683/#tab-opi...). Executive privilege began as early as 1792 in George Washington's first term, when he decided he had authority to withhold information demanded by congress. https://www.thoughtco.com/presidential-executive-privilege-3322157 https://www.thoughtco.com/presidential-executive-privilege-3...
- paulddraper 7y ago
  The impeachment inquiry started exactly because of an allegation of perjury. The ratified Articles of Impeachment were in fact (1) Perjury and (2) Obstruction of Justice (witness/evidence tampering). I may have mistakenly characterized Clinton as explicitly withholding information by invoking executive privilege like Nixon and Trump, rather than deceptively doing so. https://en.wikipedia.org/wiki/Impeachment_of_Bill_Clinton#Articles_referred_to_Senate https://en.wikipedia.org/wiki/Impeachment_of_Bill_Clinton#Ar...
cfv 7y ago
Congress was explicitly told they could not do this by the DOJ, but news weren't clear on the legal reasoning, relaying instead the handwavy explanation by Barr on the popelike infallibility of the president's office. I'm really curious about the actual legal reasoning behind this, it's got to be a fascinating read.
- DrScump 7y ago
  The DOJ has no power over Congress in impeachment proceedings.
Natsu 7y ago
> For Trump, the House chose not to do that, because (I believe) it would slow them down, and that wasn't acceptable to them. The full House has to authorize a committee to to conduct an impeachment investigation and to vest it with the proper authority before the subpoenas become enforceable. The Democrats never did this because in that case, the Republicans in the House would have been able to send out their own subpoenas. See also: https://youtu.be/Z-9EOHyCZ4A https://youtu.be/Z-9EOHyCZ4A https://www.scribd.com/document/443783939/OLC-Opinion-Judicial-Enforcement-Authority-01-19-2020 https://www.scribd.com/document/443783939/OLC-Opinion-Judici...

elif 7y ago

I believe it has to do with the paperwork you sign when you enlist. Basically waiving a lot of your normal American rights.

fabianhjr 7y ago
> Basically waiving a lot of your normal American rights. "waiving your rights" is a very weird concept, particularly in the "land of the free".
- craftinator 7y ago
  The US armed forces are not run as a democracy; it is an oligarchical tiered serfdom as near as I can peg it. When you sign up, nearly everything you agree to is in a binding legal contract with the US government, and if you breach contract, it is very different than breaching a normal contract. Part of that contract is that normal courts of law and their rules are secondary to military courts and all of their very, very power imbalanced rules. Source: myself, a decade in the Marine Corps, witness in several Non Judicial Punishment cases, and one Courts Martial case.
  - zz0rr 7y ago
    here's James Mattis's take on the difference between civilian courts and military courts: > ...remember that the Uniform Code of Military Justice is established under the U.S. Constitution, because our framers knew that those we give weapons to in this country have to be governed by a different set of regulations than the population at large. > And under the Uniform Code of Military Justice, which was the latest in a history of these rules that came out in the late 1940s and modified often since then, the defense is actually stronger. The defendants' rights are actually stronger in a military court than in a civilian court. Just read F. Lee Bailey's book, "The Defense Never Rests." And as one of the most aggressive defense counsels in our history, he said he would rather a court--defend--defend in a military court than a civilian court in his book. > And the reason is you have more rights in order to prevent the military court system becoming what you and I would call a "kangaroo court." So, you give the defense more rights. And when that court acts, you--for most of us in the military who have an intimate knowledge of it, we have a great deal of confidence that justice has been adhered to, in the true sense of what justice is all about toward a person accused of a crime by the government. this is a good interview, worth reading in full: https://www.washingtonpost.com/washington-post-live/2019/12/16/transcript-securing-tomorrow-with-gen-james-mattis-ret/ https://www.washingtonpost.com/washington-post-live/2019/12/...

jacobolus 7y ago

The reasoning is that the DOJ under Barr (and the administration in general) has no interest in cooperating with Congress or fulfilling their constitutional/legal obligations. If the Congress really wants it can enforce its own subpoenas by putting anyone who refuses to testify in their own jail, without asking the DOJ for help. This is a power that hasn’t been used since 1934, and the current Congress has opted to work through the courts / make appeals to the electorate instead of applying it.

surge 7y ago
Actually the way to settle differences between the branches is to use the third branch, the Judicial branch. Congress takes them to supreme/federal court, which decides if the subpoenas are valid and would then enforce the subpoenas and the executive branch then has to comply. Basic checks and balances. https://www.theatlantic.com/ideas/archive/2019/12/house-democrats-need-better-subpoena-strategy/602782/ https://www.theatlantic.com/ideas/archive/2019/12/house-demo... https://www.theatlantic.com/ideas/archive/2020/01/democrats-should-appeal-directly-roberts/605413/ https://www.theatlantic.com/ideas/archive/2020/01/democrats-...
- servercobra 7y ago
  Congress already had the judicial branch confirm they have the power to hold people in contempt, but they didn't use that power in this case. https://en.m.wikipedia.org/wiki/Jurney_v._MacCracken https://en.m.wikipedia.org/wiki/Jurney_v._MacCracken
  - surge 7y ago
    So do it again. Honestly though, I think the impeachment just pointed out the Ukraine stuff about as much as it pointed out Trump's phone call shenanigans, it wasn't good for them politically to keep at it, his approval rating was going up and he was raising tons of money during it. It was backfiring politically for them, the majority of the public wasn't interested (especially after the Russia thing coming up empty, you can only cry wolf so many times) and it brought their own misdealing to light so they didn't push it as they would if they really cared.

Crontab 7y ago

My understanding is the Manning was refusing to testify to the Wikileaks/Assange grand jury - so this was basically being held for contempt of court.

anonymousiam 7y ago

I looked at all of the replies, but none of them mentioned the basic difference between a court proceeding (with lots of legal precedent) and a congressional impeachment (where they decide upon the rules they'll use, and are not bound by the Federal Rules of Civil Procedure). (I'm trying very hard to keep this comment non-partisan. I think I did it.)

cfv 7y ago
The concrete thing I can't find anywhere is the actual, on-paper set of rules this people set up, ideally grafted to some kind of explanation on why this ruleset made any sense in context.

cowsandmilk 7y ago

Congress has the same powers to jail you for being in contempt, they just haven’t in nearly a century. https://en.m.wikipedia.org/wiki/Jurney_v._MacCracken https://en.m.wikipedia.org/wiki/Jurney_v._MacCracken

kortilla 7y ago

They didn’t have immunity agreements where they agreed to testify in exchange?

ailideex 7y ago

How are the two things related?

boomboomsubban 7y ago
Both involve people refusing to testify, and why people are being treated differently is not obvious.
- deleted 7y ago
  [deleted]
- ailideex 7y ago
  Chelsea Manning was not jailed or fined for refusing to testify in and of itself. I also refuse to testify, for example, but I'm pretty sure no cop will come arrest me and put me in jail and no court will fine me. Context is a thing, and it is relevant here.
  - boomboomsubban 7y ago
    She was jailed for refusing to testify, and any relevant context is not clear, hence asking "why?"
    - ailideex 7y ago
      No, she was jailed because she was found to be in contempt of court.
      - boomboomsubban 7y ago
        No, she was jailed to coerce her into testifying as she refused to. To be found in contempt of court, she would have needed to be charged.
  - dragonwriter 7y ago
    > Chelsea Manning was not jailed or fined for refusing to testify in and of itself. Yes, she was. > I also refuse to testify, for example, You can't refuse to testify if you haven't been called. You might be inclined to refuse to testify, but that's not the same as actually refusing.

notadev 7y ago

IANAL but I believe the normal protection against self-incrimination, the 5th Amendement, was not applicable due to the plea agreement she entered and thus was held in contempt of court for remaining silent.

maxlybbert 7y ago
Since Manning had already been tried for crimes related to this investigation (and found guilty, and served time), she could not be given further jail time. And because she could not be given further jail time, the courts had decided that making her testify to the grand jury about Assange wasn’t covered by the fifth amendment right to remain silent (which really only covers compelled self incrimination).

deleted 7y ago

[deleted]