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Some Republicans unsettled by Trump’s sweeping claims of immunity

POLITICO logo POLITICO 5/20/2019 By Andrew Desiderio and Kyle Cheney
Justin Amash, Jim Jordan are posing for a picture: The handling of Robert Mueller's conclusions motivated one Republican lawmaker, Rep. Justin Amash of Michigan, to call for the president's impeachment over the weekend. © J. Scott Applewhite/AP Photo The handling of Robert Mueller's conclusions motivated one Republican lawmaker, Rep. Justin Amash of Michigan, to call for the president's impeachment over the weekend.

Senior House Republicans are breaking with Donald Trump over the president’s legal claims that Congress can’t investigate whether a commander-in-chief violated the law.

That view, advanced by Trump’s personal attorney and White House counsel late last week, would upend long-held understandings about Congress’ ability to scrutinize presidential conduct — especially alleged criminal activity.

“I’m in Congress. I’m aligned with Congress. I’m not aligned with the executive branch. And I think we have oversight authority over the administration,” said Rep. Ken Buck (R-Colo.), a member of the House Judiciary Committee. “And if the president has acted illegally, then I think we have oversight authority.”

Rep. Tom Cole (R-Okla.), a veteran lawmaker who first came to Capitol Hill in the early 1980s as a congressional staffer, also said he didn’t agree with Trump’s legal theories.

“Obviously there is such a thing as congressional oversight,” Cole said.

Institutionalist-minded Republicans are increasingly uncomfortable with the far-reaching arguments Trump and his lawyers are using to make their case, amid fears the claims of near-immunity from congressional scrutiny will set dangerous precedents.

But these lawmakers also are not preparing to act in any way that constrains Trump. They roundly support the president’s rejection of House Democrats’ investigations and subpoenas, arguing Democrats are taking their investigations of the president too far — particularly those targeting his business dealings and personal finances.

“[Democrats] are taking too broad of a view of the investigative powers of Congress and the administration’s taking way too narrow of one,” said Rep. Mike Simpson (R-Idaho).

Cole added, “I think the executive branch has a right to [say] whether it’s legitimate or not. And I think it’s very hard with a straight face to argue that what we’re seeing now is legitimate oversight and legitimate investigation.”

Trump and Attorney General William Barr's handling of Mueller's conclusions motivated one Republican lawmaker, Rep. Justin Amash of Michigan, to call for his impeachment over the weekend.

"We’ve witnessed members of Congress from both parties shift their views 180 degrees—on the importance of character, on the principles of obstruction of justice—depending on whether they’re discussing Bill Clinton or Donald Trump," Amash tweeted on Saturday.

Amash argued that Mueller's report proved Trump had obstructed justice and that he only escaped indictment because of Justice Department rules that prohibit the indictment of a sitting president.

Related video: Republican lawmaker the first to say Trump engaged in impeachable behaviour (Reuters)

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Trump argued through his personal lawyers in federal court and in a letter from his White House counsel to House Democrats last week that the executive branch can deem what is or isn't legitimate oversight, embracing the notion that Congress has limited ability to investigate presidential conduct and potential violations of the law.

"Say for example if a president had a financial interest in a particular piece of legislation that was being considered … in your view Congress could not investigate whether a president has a conflict of interest?” asked U.S. District Court Judge Amit Mehta, who will soon decide whether the House Oversight and Reform Committee’s subpoena for eight years of Trump’s financial records is valid.

The subpoena stems from allegations that the president artificially inflated the value of his assets when he sought a loan from Deutsche Bank in 2014 to purchase the Buffalo Bills NFL team. Those allegations and others were made public by Trump’s former attorney and fixer, Michael Cohen, during an Oversight Committee hearing earlier this year.

"It would lack legitimate legislative purpose,” replied Trump lawyer William Consovoy.

Consovoy’s argument comes just weeks after Barr declared that Trump — or any president — could shutter an investigation into himself he deemed unfair, advancing yet another expansive view of presidential power.

Responding to Consovoy’s claims, Mehta seemed perplexed by the reasoning and wondered whether that rationale would have rendered the investigations of the Watergate and Whitewater scandals illegitimate. Consovoy said he would have to examine the cases further, but later suggested that they weren’t valid investigations when he said it was a “law enforcement” issue that Congress, by its nature, can’t probe.

Consovoy similarly said Congress would have no valid reason to investigate whether a president falsified his or her financial disclosures — the very issue that prompted the Oversight Committee to issue a subpoena to accounting firm Mazars USA for Trump’s financial records. Consovoy added that Congress can’t investigate a president’s conflicts of interest or violations of the law unless there’s a clear “legislative purpose” to the probe.

Mehta cast serious doubt on those claims, strongly suggesting that he would eventually rule in House Democrats’ favor. A ruling in the case could come as soon as Monday.

But a day after that court hearing, White House Counsel Pat Cipollone advanced the same legal theories, arguing that a House Judiciary Committee investigation of potential obstruction of justice and abuses of power by Trump exceeded Congress’ authority.

“[T]he committee’s inquiries transparently amount to little more than an attempt to duplicate — and supplant — law enforcement inquiries, and apparently to do so simply because the actual law enforcement investigations conducted by the Department of Justice did not reach a conclusion favored by some members of the committee,” Cipollone wrote to Judiciary Committee Chairman Jerry Nadler (D-N.Y.). “That is not a proper legislative purpose.”

Cipollone cited precedents including the Senate’s subpoena for President Richard Nixon’s White House tapes, as well as the legal arguments offered by former Attorney General Eric Holder in his resistance to House inquiries related to the Fast and Furious gun-running operation. A Republican Congress ultimately held Holder in contempt for refusing to turn over documents.

“In addition, even if the committee were to attempt to articulate a legitimate legislative purpose for some of its inquiries, the authority of congressional committees to explore in detail any particular case of alleged wrongdoing is limited,” Cipollone added.

Speaking to reporters, Nadler derided the theory as “nonsense” and predicted it would be eviscerated in court.

“Frankly the American people ought to be astonished by a claim by the White House that a president cannot be held accountable, that he is above the law, that he is in fact a dictator,” said Nadler, who also pointed to the Justice Department’s longstanding policy that a sitting president cannot be indicted.

Though Republicans have uniformly panned Nadler’s efforts to investigate Trump, many also see a White House that has become unmoored from the traditional back-and-forth between Congress and the executive branch.

Republicans say Trump’s claims, through attorneys, that Congress can’t investigate a president’s use of executive power are flawed and overly broad — but they believe the courts should ultimately resolve the disputes.

Rep. Mike Conaway (R-Texas), who led the House Intelligence Committee’s Russia probe in 2017 and 2018, said he’s content allowing federal judges to decide how much deference to provide Congress or the executive branch in these disputes.

“Nobody being investigated likes it. President Obama didn’t like it. Attorney General Holder didn’t like it. That’s why we have a third branch of government to litigate it,” said Conaway. “It’s exactly the normal tug of war.”

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