Not a design flaw, but blatant misuse.

The other day, I had to the misfortune to read on another corner of the interwebs, the following bit of incredible stupidity.

Referring to this article, describing Trump’s blatant abuse of executive power by claiming Executive Privilege on the entire Mueller report, the asshole in question had this to say:

I see it as him finally asserting HIS constitutional rights. You know POTUS has them too, right?

Even worse is a follow on comment which really shows off a great deal of stupidity and idiot vanity:

Where does the Constitution give Congress the ability to harass, or even subpoena, members of the Executive or Judicial branches? Congress has the ability to override a veto, to confirm nominations, or to impeach. Just like I don’t expect that The President cannot summon congressional staffers to force them to tell what the congressmen are doing/thinking.

Only a worthless piece of human excrement, with no understanding of the Constitutional system of checks and balances, would actually say this, much less be stupid enough to believe it. Even worse, is that this particular individual envisions himself as a “man of principle” who thinks Trump is doing a good job for America. If he really had principles he would have stuck up for the same “rights” for Barack Obama. (As an aside, the entire comment section on the piece in question is grounds to make you weep for the future of mankind. “Utterly demented” is an understatement.)

Spoiler alert, this particular form of douche bag did not. And if it were President Obama now asserting the same blatant disregard of the Constitution, I can assure you he would be screaming for impeachment, just as soon as he got done saying “BENGHAZI” three times fast.

That’s the level of stupidity the United States has come to. How did we get to that place? Well, the answer to that is simple. The bulk of the blame can be laid on these two men:

Even the MAGA morons know who these people are: Rupert Murdoch and Newt Gingrich.

A special place in hell is hopefully reserved for both of these men, Murdoch for his role in creating “news” outlets that have destroyed meaningful political dialogue in both the United States and Great Britain. Gingrich for failing miserably in his sworn duty to place country over party and actually govern effectively. If you want to know when the Congress of the United States began to fail miserably, it was 1994 and Gingrich’s destructive “Contract [on] America”. Both men need to depart for the infernal regions with haste.

Which brings us to today and the ideas of the so called ” konztitooshunal skolar ” listed above. I’ll give you the TLDR version first:

They are utter and complete horseshit!

To start with, Congressional oversight is one of the “implied” powers granted to Congress by the “necessary and proper” clause of the Constitution. Article I, Section 8 of the Constitution grants Congress a very specific set of powers known as “expressed” or “enumerated” powers representing the basis of America’s system of federalism — the division and sharing of powers between the central government and the state governments.

Congress draws its often controversial implied power to pass apparently unspecified laws from Article I, Section 8, Clause 18, which grants Congress the power, “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” This so-called “Necessary and Proper Clause” grants Congress powers, while not specifically listed in the Constitution, are assumed to be necessary to implement the 27 powers named in Article I.

Conservatives hate the idea of implied powers for two reasons. One, it gets in the way of the one party apartheid state they want to build in the United States and it is in conflict with their wet dream about a Unitary Executive who has absolute dictatorial authority solely because he is the President of the United States. ( Now that point of view only seems to imply when their guy is President. Otherwise, they seem to love implied powers, which gets back to the craven lack of “principle” said individual has above.).

Secondly, the argument that Congress does not have oversight authority has been established firmly in legal precedent starting with Justice John Marshall and continuing all the way to the current day. Thus, retired Justice Stevens was on very solid ground when he stated recently that , ” The President is exercising powers that do not really belong to him,
I mean, he has to comply with subpoenas and things like that.”

And then their is the obligation of Congress to impeach worthless souls, like Trump, who in spite of safeguards, end up in positions that they are unfit for and/or abuse. ( Let’s be clear, Trump is both.) To exercise that power, they have to be able to determine the basis to bring an impeachment charge. And lest we forget it does not have to be a criminal case:

Furthermore:

The U.S. Supreme Court has confirmed the investigative powers of Congress, subject to constitutional safeguards for civil liberties. In the 1927 case of McGrain v. Daugherty, the Court specifically found that, in investigating actions taken by the Department of Justice, Congress had constitutionally considered a subject “on which legislation could be had or would be materially aided by the information which the investigation was calculated to elicit.”

Along with the “necessary and proper” clause of the Constitution, several important laws provide broad mandates for the power of congressional oversight. For example, the Government Performance and Results Act of 1993 requires the executive agencies to consult Congress when developing their strategic plans and report on their plans, goals, and results at least annually to the Government Accountability Office (GAO). 

Perhaps the most impactful, the Inspectors General Act of 1978 created within each executive branch agency an independent watchdog Office of Inspector General (OIG)assigned to investigate and report on problems of waste, fraud, and abuse to Congress. The Reports Consolidation Act of 2000 requires the OIGs to identify and report the most serious management and performance problems within the agencies they monitor. 

Indeed, one of the first laws passed by the First Congress in 1789 established the Treasury Department and required the Secretary and the Treasurer to report directly to Congress on public expenditures and all accounts.

It should be worth remembering that in United States vs Nixon, The Supreme Court made it clear the idea of executive privilege is extremely limited.

The Court’s opinion found that the courts could indeed intervene on the matter and that Special Counsel Jaworski had proven a “sufficient likelihood that each of the tapes contains conversations relevant to the offenses charged in the indictment”. While the Court acknowledged that the principle of executive privilege did exist, the Court would also directly reject President Nixon’s claim to an “absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” The Court held that a claim of Presidential privilege as to materials subpoenaed for use in a criminal trial cannot override the needs of the judicial process if that claim is based, not on the ground that military or diplomatic secrets are implicated, but merely on the ground of generalized interest in confidentiality. Nixon was then ordered to deliver the subpoenaed materials to the District Court.
Nixon resigned sixteen days later, on August 9, 1974.

By now it should be obvious that Trump’s deranged supporters are counting on the two scabs who are sitting in stolen seats on the court to rule in favor of the orange monster. I think that may in fact be a hasty judgment, although one can never underestimate the ability of Justice fucking Kavanaugh to be a total hack. But it should be worth noting that even Clinton lost when he tried to claim executive privilege. In 1998, he became the first president since Nixon to assert executive privilege and lose in court, when a federal judge ruled that Clinton aides could be called to testify in the Lewinsky scandal.

The power of congressional oversight is well established and has been essential in monitoring and checking the powers of the executive branch and helping improve the efficiency and cost-effectiveness of federal government operations in general. This is especially true now when the office of the Presidency is occupied by a worthless demagogue who is a documented “domestic enemy of the Constitution” that so many of us swore an oath to defend.

Now would be a good time to note that in 2016, I told you this would happen and thus I was more than justified, as one of those who reveres the Constitution, to hate the man with the heat of a super-nova.

Let me say it for the 157th time. Trump is dangerous, very dangerous and it won’t save you when he goes full fascist that you may have voted for him or supported him. …………….
You were warned and you failed to pay heed to that warning.

All of this prologue, besides refuting the stupidity of self-centered selfish pigs, has been a means to bring us to the key point so many Americans are not yet grasping. Our Constitutional Democracy is a fragile thing and fascism can happen here. Our Constitutional Republic is built on the premise that all actors are committed to the principles of responsible governance, and when they are not, the system of checks and balances will serve to eliminate the worst abuses. The problem is, it never assumed there would be a totally worthless and criminal individual occupying the highest office in the land – and individual committed to only one thing, his own self-aggrandizement. Unfortunately, that day has arrived – the “system” was not designed for this. Take it away Mr. Toobin:

Our constitutional system never contemplated a President like Donald Trump. The Framers anticipated friction among the three branches of government, which has been a constant throughout our history, but the Trump White House has now established a complete blockade against the legislative branch, thwarting any meaningful oversight. The system, it appears, may simply be incapable of responding to this kind of challenge.

Trump says he is “fighting all subpoenas”. His deranged followers cling to the slim reed that he is doing the same thing as President Obama. Except the simple truth is, he is not. If he were, Barr would have testified before the House Judiciary Committee, as Erick Holder did.

And on the issue of Trump’s tax returns, the law is clear cut. Shall means shall and Mr. Mnuchin HAS to turn over the returns to the committee. It’s not optional and the Secretary of the Treasury has no discretionary powers here. True hypocrites, House Republicans refused to speak out against this blatant disregard for legislative authority. They were not always so uncaring:

Contrast that with the time an IRS official refused to answer questions from Oversight Republicans—they held that official in contempt of Congress. During the contempt proceeding, Representative Jim Jordan, now the ranking Republican on the Oversight Committee, justified his vote in favor of contempt by saying, “The only remedy we have to get to the truth is to use every tool at our disposal” to get that official to “testify and answer the questions. That is the only remedy we have. The only route to the truth is through the House of Representatives.”

And so, we are back to the nightmare scenario Mr. Toobin envisions, namely that Trump runs out the clock hoping he can pull off another minority victory via the path of America’s outdated Electoral College. Or if he loses, he simply will dare someone to push him out by refusing to leave. Either way, he seems determined to go full blown dictator on us.

There has never been a President who directed an open campaign of total defiance against another branch of government. It is simply misleading to consider these claims in isolation from one another because the President has acknowledged that they are part of a coördinated campaign. The law has no clear mechanism for adjudicating these claims together—but they belong together. Trump is leading a political campaign, and it calls for a political, not just judicial, response.

The most obvious political response to Trump’s defiance of Congress—and thus of the norms of constitutional history—is impeachment. One article of impeachment against President Richard Nixon accused him of failing “without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas.” But the Trump Administration is likely to fight all subpoenas in court and wait for resolution there; only then will it be possible to say whether the resistance to all subpoenas is “without lawful cause.” And these cases will drag on. Indeed, Administration lawyers know that bad arguments, as well as good ones, can tie up the courts for months, if not years. (The litigation over Holder and the Fast and Furious documents just ended—after seven years.) Democratic leaders in the House are already skeptical, for political reasons, of pursuing impeachment, and lingering, unresolved disputes in the courts will make a push to remove the President even less likely.

We are told we cannot use the term fascist to describe this. I’m at a loss to find a more accurate alternative.