Is the President above the law?
At the heart of the politely contentious House Intelligence Committee hearing with acting Director of National of Intelligence Joseph Maguire on Thursday was this question: Is the President, in practical terms, above the law?Posted — Updated
At issue was this conundrum, posed by Maguire to the committee:
1) A whistleblower filed a formal complaint to the intelligence community inspector general (ICIG, to the cool kids in the know) alleging that Trump had abused the power of his office by pushing Ukrainian president Volodymyr Zelensky to investigate Joe and his son, Hunter Biden. (There is no evidence of wrongdoing by either Biden).
2) The ICIG sent the complaint to Maguire, having judged the complaint against Trump to be credible and of "urgent concern." Which, by law, would mean Maguire turns the complaint over the House and Senate Intelligence committees within a week.
3) Maguire pauses, however, concerned that the complaint, because it deals with Trump (and, therefore, the executive branch), is outside of his purview as head of the intelligence community.
4) Maguire turns to the White House and the Justice Department for guidance on whether the conversation between Trump and Zelensky is covered by executive privilege.
That dilemma led to this telling exchange between Maguire and Intelligence Committee Chair Adam Schiff (California):
SCHIFF: Well, let me ask you this. Do you think it's appropriate that you go to a department run by someone who is the subject of the complaint? To get advice? Who is a subject of the complaint, or implicated in the complaint? For advice to whether you should provide that advice to Congress. Did that conflict of interest concern you?
MAGUIRE: Mr. Chairman, when I saw this report and complaint, immediately I knew that this was a serious matter. It came to me and I just thought that it would be prudent to ensure ---
SCHIFF: I'm just asking if the conflict of interest concerned you?
MAGUIRE: Well, sir, I have to work with what I've got. And that is the Office of Legal Counsel within the Executive Branch.
"I have to work with what I've got."
This is the second time in the last few months where the protected status of the President has worked very much in Trump's favor. The first, in case you were on another planet earlier this year, was the Justice Department guideline that a sitting President can not be indicted. That led Robert Mueller to avoid entirely a decision about whether Trump obstructed justice in blocking the special counsel probe -- despite double-digit episodes documented in the report that suggested clear obstructive behavior.
With Mueller offering no recommendation, Attorney General William Barr stepped in -- although Mueller never specifically requested he do so -- and decided not to bring charges against the President.
So, too, on this Ukraine case. It's very hard to see how the White House -- or the Justice Department -- should be allowed to advise Maguire on whether to turn over a whistleblower complaint to Congress that centers on Trump and specifically names Barr. And yet, as Maguire repeatedly noted, who else should be able to decide executive privilege except for the executive?
The Point: While everyone agrees, in theory, that no one should be above the law -- including the President -- the practical ways in which the President receives special treatment within our system of government have been on stark display of late.
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