‘No Honor Among Thieves’: Mick Mulvaney Thinks Now Is Good Time To Join Suit Against ‘The Honorable Donald J. Trump’

In one of the more absurd developments yet in the spiraling impeachment probe that’s now engulfed nearly everyone in Donald Trump’s political orbit, Mick Mulvaney is effectively suing the president.

Mulvaney has emerged as one of the key figures in the Ukraine affair, and House investigators want to hear from him. The acting chief of staff was at the center of the decision to hold up some $400 million in military aid and was also instrumental in handing Ukraine policy to Gordon Sondland, Kurt Volker and Rick Perry (the “three amigos”, as they came to call themselves).

Mick made things immeasurably worse for himself during an October 17 press conference when he inadvertently admitted to a quid pro quo, then told reporters to “get over it”.

Read more: Impeachment Investigators Want To Depose Mick Mulvaney

Now, instead of simply citing Trump’s “it’s an illegitimate witch hunt” excuse on the way to stonewalling Congress, Mick is attempting to join a lawsuit filed by John Bolton’s former deputy Charles Kupperman, who has asked a federal judge to determine which takes precedence: the congressional subpoena or Trump’s order not to comply with the probe. The defendants named in the suit are congressional leaders and “the Honorable Donald J. Trump”.

“[Mulvaney’s] lawyers tried to finesse that by saying in the body of their motion that the defendants they really wanted to sue were the congressional leaders, but their own motion still listed Mr. Trump at the top as a defendant because that is the suit they sought to join”, the New York Times writes (and you can almost hear Peter Baker and Maggie Haberman chuckling).

As you can probably imagine, Bolton is more than a little surprised. House investigators want to hear from him too (for a number of reasons), and people close to the former national security advisor told the Washington Post last week that he would be willing to speak to Congress if the judge in the case rules in favor of lawmakers.

“People close to Bolton and Kupperman said the two were flabbergasted by Mulvaney’s surprise request to join the lawsuit because they and others on the national security team considered Mulvaney a critical player in the effort to get the Ukrainian government to pursue investigations into Trump’s political opponents”, WaPo wrote, in a separate piece out Sunday.

Bolton, you’ll recall, characterized the scheme orchestrated by Sondland and Mulvaney as a “drug deal”, and called Rudy Giuliani “a hand grenade”, according to testimony from his aide Fiona Hill (see here and here).

Of course, there are rumors that Trump isn’t pleased with Mulvaney, so it’s possible Mick is looking for a way out of the situation. If he can cite a court ruling, it would give him an excuse to defy Trump and comply with Congress, which he probably knows is the only way to avoid going down with the ship. Chris Whipple, the author of “The Gatekeepers,” a history of White House chiefs of staff, told the Times that he couldn’t remember any instance of a chief of staff deciding to go to court instead of just taking direction from the president.

Mulvaney’s lawyers showed up in court Friday morning just hours after he failed to appear for a deposition. He had been subpoenaed the previous evening.

Bolton is not a plaintiff in the suit filed by Kupperman, but will likely view the ruling as a determination on whether or not he too should testify. John has a $2 million book deal waiting on him, so one assumes he’d like to get this out of the way.

Then again, this whole thing could be a stall tactic. At the very least, it’s possible that’s the way Mulvaney sees it. After all, if the case is appealed to the Supreme Court, it could be months before the issue is decided, likely getting Mick off the hook unless House Democrats plan to wait that long before moving in for the (figurative) kill.

Although there will invariably be all manner of spin from Mulvaney’s attorneys and also from the White House when it comes to explaining this latest wrinkle, Democrat Gerald Connolly, who serves on two of the committees conducting the inquiry, summed up Mick’s move to join the suit quite nicely in remarks to the Times. “There’s no honor among thieves”, he said.


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8 thoughts on “‘No Honor Among Thieves’: Mick Mulvaney Thinks Now Is Good Time To Join Suit Against ‘The Honorable Donald J. Trump’

  1. Random crap from the internet, related to the dumbass idea that a court needs to decide how much authority a president has, but yet, we all await the grand pronouncements of our lofty current justices, who will probably fail to interpret what their older brethren have already made clear to the citizens of this nation:

    The government of the United States is one of limited powers. The three co-ordinate branches of the government are vested with certain authority, definite and limited, in the Constitution. This principle has often been enforced in decisions of this court, and the apt words of Mr. Justice Miller, speaking for the court in Kilbourn v. Thompson, 103 U. S. 168, 190, 26 L. ed. 377, 386, have been more than once quoted with approval: ‘It is believed to be one of the chief merits of the American system of written constitutional law, that all the powers intrusted to government, whether state or national, are divided into the three grand departments, the executive, the legislative, and the judicial. That the functions appropriate to each of these branches of government shall be vested in a separate body of public servants, and that the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined. It is also essential to the successful working of this system that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall, by the law of its creation, be limited to the exercise of the powers appropriate to its own department, and no other.’

    These principles ought not to be departed from in the judicial determinations of this court, and their enforcement is essential to the administration of the government, as created and defined by the Constitution. The grant of authority to the Executive, as to other departments of the government, ought not to be amplified by judicial decisions. The Constitution is the legitimate source of authority of all who exercise power under its sanction, and its provisions are equally binding upon every officer of the government, from the highest to the lowest. It is one of the great functions of this court to keep, so far as judicial decisions can subserve that purpose, each branch of the government within the sphere of its legitimate action, and to prevent encroachments of one branch upon the authority of another.

    See: The doctrine of the separation of powers was adopted by the convention of 1787 not to promote efficiency, but to preclude the exercise of arbitrary power. The purpose was not to avoid friction but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.

    See: Inherent power! That is a new principle to enlarge the powers of the general government. . . . The partisans of the executive have discovered a third and more fruitful source of power. Inherent power! Whence is it derived? The Constitution created the office of President, and made it just what it is. It had no powers prior to its existence. It can have none but those which are conferred upon it by the instrument which created it, or laws passed in pursuance of that instrument. Do gentlemen mean by inherent power such power as is exercised by the monarchs or chief magistrates of other countries? If that be their meaning, they should avow it.

    And Mr. Calhoun argued (id., 553):

    Hear what that sacred instrument says: “Congress shall have power . . . to make all laws which shall be necessary and proper for carrying into execution the foregoing powers” (those granted to Congress itself) “and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” Mark the fulness of the expression. Congress shall have [p181] power to make all laws, not only to carry into effect the powers expressly delegated to itself, but those delegated to the government or any department or officer thereof, and, of course, comprehends the power to pass laws necessary and proper to carry into effect the powers expressly granted to the executive department.

    See: Nor should it ever be lost sight of that the government of [p183] the United States is one of limited and enumerated powers, and that a departure from the true import and sense of its powers is pro tanto the establishment of a new Constitution. It is doing for the people what they have not chosen to do for themselves. It is usurping the functions of a legislator, and deserting those of an expounder of the law. Arguments drawn from impolicy or inconvenience ought here to be of no weight. The only sound principle is to declare, ita lex scripta est, to follow, and to obey. Nor, if a principle so just and conclusive could be overlooked, could there well be found a more unsafe guide in practice than mere policy and convenience.

    See: If the phrase “executive power” infolds the one now claimed, many others heretofore totally unsuspected may lie there awaiting future supposed necessity, and no human intelligence can define the field of the President’s permissible activities. “A masked battery of constructive powers would complete the destruction of liberty.”

    See: If the framers of the Constitution had intended “the executive power,” in Art. II, Sec. 1, to include all power of an executive nature, they would not have added the carefully defined grants of Sec. 2. They were scholarly men, and it exceeds belief that the known advocates in the Convention for a jealous grant and cautious definition of federal powers should have silently permitted the introduction of words and phrases in a sense rendering fruitless the restrictions and definitions elaborated by them.

    See: The Federal Constitution is an instrument of exact expression. Those who maintain that Art. II, Sec. 1, was intended as a grant of every power of executive nature not specifically qualified or denied must show that the term “executive power” had some definite and commonly accepted meaning in 1787. This court has declared that it did not include all powers exercised by the King of England; and, considering the history of the period, none can say that it had then (or afterwards) any commonly accepted and practical definition. If anyone of the descriptions of “executive power” known in 1787 had been substituted for it, the whole plan would have failed. Such obscurity would have been intolerable to thinking men of that time.

    When they say it shall be vested in President, they mean that one magistrate, to be called a President, shall hold the executive [p236] authority; but they mean, further, that he shall hold this authority according to the grants and limitations of the Constitution itself.

  2. Curious: who is paying for Mulvaney’s lawyers? Who is paying for everyone’s lawyers?
    There always seem to be lots of lawyers available for all these people. Sounds expensive

  3. “Then again, this whole thing could be a stall tactic.” 99% likelihood. By joining the suit, Mulvaney gains two key advantages. First, he has a response to the claim that his action is obstruction, saying he will do whatever the court says. Second, Kupperman’s attorneys might let the case proceed fairly expeditiously. Kupperman and Bolton may be happy with any result, and an order to testify absolves them of the anger from the right wing, that they plan to serve once again in a post-Trump world. By intervening, Mulvaney’s lawyers can complicate things and cause substantial delay. Some articles cover this as if there is a rift between Mulvaney and Trump. I don’t see it that way.

  4. Whoa, wait a second here,there is confusion here!

    Re: “Now, instead of simply citing Trump’s “it’s an illegitimate witch hunt” excuse on the way to stonewalling Congress, Mick is attempting to join a lawsuit filed by John Bolton’s former deputy Charles Kupperman, who has asked a federal judge to determine which takes precedence: the congressional subpoena or Trump’s order not to comply with the probe. The defendants named in the suit are congressional leaders and “the Honorable Donald J. Trump”.”

    ==> The Kupperman case isn’t active,is it? There are so many clowns in the circus, it is confusing!

    The McGahn case is further along than other suits attempting to do so. (Last week, the House Intelligence Committee withdrew its subpoena for testimony from Kupperman, who had brought his own case, to keep the focus on McGahn.)

    House Democrats also withdrew their subpoena for Kupperman’s testimony on Wednesday.

    The House isn’t waiting for all the missing witnesses to appear, or for all the cases to reach the Supreme Court. Instead, Adam Schiff, the chair of the House Intelligence Committee, warned last week that the President’s frantic efforts to sabotage the process could, in themselves, be impeachable offenses. As the list of charges grows, more people will be called to testify before the House, and then, most likely, the Senate–and their names may even surprise Donald Trump

    “Given the schedule of our impeachment hearings, a court process that leads to the dismissal of Dr. Kupperman’s flawed lawsuit would only result in delay, so we have withdrawn his subpoena,” an Intelligence panel official said.

    Cooper pushed back on this narrative in his Friday letter to Letter.

    “The House Chairs are mistaken to say Dr. Kupperman’s lawsuit is intended ‘to delay or otherwise obstruct the Committees’ vital investigatory work,'” he wrote.

    “Nor has the lawsuit been coordinated in any way with the White House, any more than it has been coordinated with the House of Representatives. If the House chooses not to pursue through subpoena the testimony of Dr. Kupperman and Ambassador Bolton, let the record be clear: that is the House’s decision,” Cooper added.

  5. But on Wednesday, House lawyers said they had withdrawn Kupperman’s subpoena to avoid a delay in the impeachment proceedings. They asked a federal judge to dismiss the case, saying they would instead look for guidance in the outcome of similar litigation involving a subpoena to former White House counsel Donald McGahn.

    It’s widely known that Donald Trump is not fond of note-taking. “What about these notes?” the president once fumed at then-White House counsel Don McGahn, according to Robert Mueller’s report. “Why do you take notes? Lawyers don’t take notes, I never had a lawyer who took notes.” In a separate meeting, described in a forthcoming book by an anonymous senior administration official, the president flew off the handle at another aide he noticed scribbling in a notebook: “What the [expletive] are you doing?” Trump said, according to an excerpt published in the Washington Post last week. “Are you [expletive] taking notes?” Despite the onslaught, those around the president have bravely continued to put pen to paper. And apparently, the White House is once again on edge thanks to a dutiful note-taker.

    Episode 12 shows Trump’s attempts to cover up two damaging stories: one revealing his son’s troubling exchange with a Russian lawyer and one detailing the president’s demand to Don McGahn that he get rid of Mueller.

    The Mueller Report documents two efforts to cover up or deny these stories; one involves a press statement dictated on Air Force One and the other involves Trump’s request to Don McGahn to create a false internal record denying the true story about Mueller’s attempted firing. The Special Counsel reaches very different conclusions about what the evidence behind those two events suggests about whether the president has obstructed justice.

    Finally, the episode covers Trump’s panicked reaction to news reports suggesting that he directed Don McGahn to fire Mueller. The President’s not only wants McGahn to publicly refute the story, but he also asks him to retroactively create a false internal memo denying that Trump asked him to fire Mueller.

  6. And finally, this page summed up many things, worth reading!

    Whether senior presidential advisers enjoy “absolute immunity” if they refuse to comply with a congressional subpoena to testify at an impeachment inquiry will invariably be decided by the Supreme Court. Judge Jackson’s decision in the McGahn case will be appealed to the Court of Appeals and then to the Supreme Court. This may prove to be one of the pivotal separation of powers cases of our time.


  7. Will one more post matter?

    “So the House can never go to court?” Jackson asked.

    ( please ignore the House suing Obama and winning: “A federal judge on Thursday ruled the Obama administration has been improperly funding an Obamacare subsidy program, a huge win for the House of Representatives in a lawsuit against the White House. Congress authorized the program but never actually provided the money for it, wrote U.S. District Court Judge Rosemary M. Collyer. The program will be allowed to continue, pending appeal. “)

    “As a general proposition, that’s correct,” replied Burnham, a former White House aide under McGahn who is now serving in a senior position in the Justice Department’s civil division.
    “I am not analyzing this on a blank slate,” Jackson said as Burnham began his argument. “We do have prior precedents from this very jurisdiction. … I’ve been really grappling with this: how today’s case differs from, let’s say, Miers.”

    Jackson also expressed discomfort with the Justice Department’s claim that McGahn and other former senior officials were entirely immune from a congressional subpoena, even though many such individuals regularly speak out in public.

    “I see all day, many of us do, all kinds of former executive branch officials giving information to the media,” Jackson said. “We understand that people do that even under circumstances in which they could not have done so, perhaps, if they were still in the White House.”

    “This is what they wish the law were. It’s not what the law is,” said Doug Letter, the House counsel. Later, he added: “At no point in our history have we had absolute immunity.”

    Leon set a hearing in that case for Dec. 10, leaving Kupperman’s subpoena up in the air until the House impeachment hearings are well along or perhaps even complete.


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