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Victoria Toensing: Senate should defend constitutional powers of Trump -- not Mueller

President Donald Trump look to the media as he walks to Marine One across the South Lawn of the White House in Washington, Saturday, April 28, 2018, for the short trip to Andrews Air Force Base en route to Michigan. (AP Photo/Carolyn Kaster)  (Copyright 2018 The Associated Press. All rights reserved.)

Before the Senate debates a bill to protect Special Counsel Robert Mueller from being fired by President Trump, it should consider this: Mueller’s use of a subpoena to require testimony by the president would violate the separation of powers in the Constitution and is an abuse of the grand jury process.

In addition, Mueller’s proposed questions for President Trump in the special counsel’s wide-ranging investigation of Russian interference in the 2016 presidential election would violate Article II of the Constitution and executive privilege.

Here’s a simple fact that Mueller chooses to ignore: A sitting president cannot be indicted. This fact cuts the legs out from under Mueller’s efforts to require testimony by President Trump.
In the wake of Watergate, a Republican Justice Department Office of Legal Counsel (OLC) in 1973 thoroughly discussed whether a president could be subject to criminal prosecution. Because the president is “selected in a highly complex nationwide effort,” the OLC found it would be “incongruous” to “bring him down … by a jury of twelve, selected by chance ‘off the street.’”
Action by the House and Senate, via impeachment, is the appropriate process for “such a crucial task, made unavoidably political by the nature of the ‘defendant,’” the OLC said.
The OLC observed that the “modern Presidency” has had to “assume a leadership role undreamed of” in earlier years. It added: “The spectacle of an indicted President still trying to serve as Chief Executive boggles the imagination.”
In 2000, because of three U.S. Supreme Court cases, a Democratic Justice Department OLC revisited the issue of presidential immunity from criminal prosecution.
Two cases concerned President Richard Nixon, the most well-known involving the “Nixon tapes.” After indicting Nixon aides, the special prosecutor in the case subpoenaed the Nixon tapes (recordings of the president’s conversations with his aides) for evidence at trial. The Supreme Court upheld the subpoena with specific limitations requiring in camera review (a legal term meaning privately, not in open court) and said only relevant and material information needed to be produced.
The other Nixon case held that the president was immune from civil liability for “official acts.” 
In the third case, involving Paula Jones (who claimed Bill Clinton sexually harassed her), the Supreme Court held that Clinton was not immune from civil liability involving matters occurring before he took office, since such matters were not official presidential acts. (President Clinton waived challenging his grand jury subpoena from Independent Counsel Ken Starr, so that case was not discussed.) 
The OLC determined that none of the Supreme Court’s rulings altered the 1973 opinion finding the president “uniquely immune” from criminal process.
In dealing with the Nixon tapes, the high court balanced the president’s “generalized interest in confidentiality” with the requirement of “the fair administration” of a criminal trial. Thus, the ruling had no bearing on whether a president could be indicted. The other two cases were civil.       
The OLC noted that criminal prosecutions are different from civil litigation, requiring personal attention and imposing “physical disabilities.” Therefore, “criminal proceedings against a President in office should not go beyond a point where they could result in so serious a physical interference with the President’s performance of his official duties that it would amount to an incapacitation.”
If Mueller cannot indict President Trump, what possible use can he make of any presidential testimony? The only option is that he will provide it to Congress for consideration of articles of impeachment.
But referring President Trump’s testimony to Congress would abuse the grand jury process, which is only to be used for a criminal proceeding. According to the U.S. Attorneys’ Manual, which Special Counsel Mueller is obligated to follow: “A grand jury has but two functions – to indict or, in the alternative, to return a no bill.”
Providing the legislature with testimony obtained from an executive branch grand jury subpoena also violates the Constitution’s separation of powers.
Mueller reports to Deputy Attorney General Rod Rosenstein, an executive branch official. Impeachment is purely a legislative function. The executive cannot utilize its awesome power to compel grand jury testimony for the purpose of providing it to another governmental branch.
If Congress finds the president’s refusal to testify an impeachable offense, it can allege so in articles of impeachment.
The substance of the recently leaked list of questions that Special Counsel Mueller outlined for President Trump’s counsel is also in violation of the Constitution and executive privilege. Not one of the questions passes requirements mandated by the Constitution and case law defining executive privilege.
Any question about firing FBI Director James Comey or obtaining National Security Adviser Michael Flynn’s resignation violates the president’s Article II authority to have vested in him “all executive power.”
The president had unfettered authority to fire both officials for any reason, for multiple reasons, or for no reason. Incidentally, if the firing of Comey can be construed as obstruction of justice, then Rosenstein – who discussed such a firing with the president and wrote a scathing memo recommending that Comey be fired – is a co-conspirator. Yet, he is supervising the Mueller investigation.
Numerous questions deal with the deliberative process, such as how were the decisions made to request the resignation of Flynn and to fire Comey. Some request information about the president’s discussions with White House Counsel Don McGahn.
The answers to these questions all involve the decision-making process and, as such, are clearly covered by executive privilege.
The president is not readily available to be interviewed under established case law. There must be a “demonstrated, specific need for evidence in a pending criminal trial,” which courts have defined as evidence that is material to the matter at issue and not available elsewhere with due diligence.
Ignoring the obvious – that there is no criminal trial pending as in the Nixon tapes case – not one Mueller question can meet the standard that would require executive privilege to be waived.
Unless, of course, you count the numerous questions asking what the president “thought” in response to various situations. These include Comey’s Jan. 6, 2017 briefing to President-elect Trump; Comey’s March 20, 2017 testimony before the House Intelligence Committee; the appointment of a special counsel and other issues.
It is correct that only the president can state what he “thought” of the listed occasions. Yet, I recall the Catholic confessional as the only place where I have been penalized three Hail Marys after admitting to sinful thoughts. A president’s thoughts are not – and cannot be – the basis for any governmental inquiry.
Mueller has over a dozen experienced lawyers on his team. They are all veterans of the federal criminal justice system. They know very well that as executive branch personnel they must follow OLC’s opinions that a president cannot be indicted.
And these lawyers know very well that no court has ever ruled that a president may be subpoenaed to testify in a criminal proceeding involving his own conduct.
The lawyers on Mueller’s team also know that the grand jury cannot be used to obtain evidence except for the criminal process. And yet, Special Counsel Mueller has threatened the president with a grand jury subpoena.
The Senate needs to pass a bill to protect the constitutional authority of the presidency, not the bad faith conduct of the special counsel.

Woody Harrelson recalls his college memories of Mike Pence on 'Jimmy Kimmel'

Woody Harrelson (right) opened up about knowing Vice President Mike Pence (left) on "Jimmy Kimmel Live!"  (REUTERS )

Woody Harrelson has opened up about his connection to someone in the White House: Vice President Mike Pence.
Harrelson spoke about his former Hanover College classmate with Jimmy Kimmel on “Jimmy Kimmel Live!” this week.
“I knew him!” Harrelson told the late-night host on Tuesday. “We were both very religious.”
He continued, “It was a Presbyterian college at the time, and I was there on a Presbyterian scholarship.”
Pence, Harrelson said, “was involved with the, you know, church activities.”
Later in the interview, Kimmel asked about Harrison’s recollection of the current vice president.
“Do you have any memories of a young Mike Pence? Like were you guys hanging out together?” he said.
“You know what, I remember -- I actually quite liked him,” Harrelson told the late-night host.
The A-lister said he “thought he was a pretty good guy” before calling him “very religious” and “very committed.”
“I see,” Kimmel said.
“So, you know, seeing as how I’m not quite in that ballpark now, I don’t know how we’d get along, cause I think he’s still quite religious,” Harrelson said. “Just a whole different brand of religious, that kind of fervor that you really don’t want.”
Pence graduated from Hanover College in 1981, with Harrelson graduating two years later. Both men are listed on the school's notable alumni webpage.

'I would do it again,' McCain writes about release of Steele dossier to FBI

U.S. Sen. John McCain, R-Ariz., receives the Liberty Medal from the National Constitution Center in Philadelphia, Oct. 16, 2017.  (Associated Press)

U.S. Sen. John McCain, R-Ariz., apparently has no regrets about his role in the release of the so-called Steele dossier, which is said to contain salacious allegations about then-candidate Donald Trump.
In excerpts of his forthcoming book, “The Restless Wave: Good Times, Just Causes, Great Fights, and Other Appreciations,” the 81-year-old senator – who is recuperating at home following recent cancer treatment and surgery – acknowledges that he delivered the information to then-FBI Director James Comey.
“(A)nd I would do it again,” McCain writes, according to excerpts published by the Guardian.
“Anyone who doesn’t like it can go to hell,” McCain adds, saying he did “what duty demanded I do.”
The “disturbing” nature of the allegations against Trump prompted his action, McCain writes.
“I had no idea which if any were true,” the senator writes. “I could not independently verify any of it, and so I did what any American who cares about our nation’s security should have done.”

“I could not independently verify any of it, and so I did what any American who cares about our nation’s security should have done.”

In December, Fox News reported that former British spy Christopher Steele instructed Sir Andrew Wood – a former British ambassador to Russia – to approach McCain about the existence of the dossier while Wood and McCain were both attending a security conference in Canada.
McCain later received hard copies of the dossier from Fusion GPS, and relayed a copy to the FBI, Fox News reported.
Also in the excerpts that appear in the Guardian:
McCain claims Republicans are on the “wrong side” of the immigration debate, arguing that it has been driven by “zealots” who fail to understand immigration’s key role in “America exceptionalism.”
The anti-immigration zealots “need to be confronted before their noxious views spread further and damage for generations the reputation of the Republican Party,” McCain writes, according to the Guardian.
McCain also expresses regret for choosing Sarah Palin as his running mate in 2008, instead of his friend, former U.S. Sen. Joseph Lieberman, D-Conn.

Israel strikes ‘nearly all’ Iranian infrastructure in Syria after Iran rocket attack, minister says

Israel said it struck "nearly all" of the Iranian infrastructure sites in Syria on Thursday, in direct response to a barrage of Iranian rocket fire targeting Israeli military positions in the Golan Heights.
The Israel Defense Force (IDF) said it deployed fighter jets that struck every target on its list. The targets included military compounds, intelligence operations and munition warehouses, a statement read. The strikes were Israel's largest air operation in years, the statement read.
The missile launcher responsible for the Iranian rocket strikes was destroyed, according to the release.

Missile fire is seen from Damascus, Syria, May 10, 2018.  (Reuters)

Lt. Col. Jonathan Conricus, a military spokesman, called the roughly 20 missiles fired from Iranian forces based in Syria "the most severe attempt" by Iran's Al Quds force to attack the country. It was the first time Iranian forces have attacked Israel from Syria, according to Reuters.
Conricus said four rockets were intercepted and the others fell short of their targets. No injuries or damage was reported.
“The IDF will not allow the Iranian threat to establish itself in Syria. The Syrian regime will be held accountable for everything happening in its territory,” the press release read. “The IDF is prepared for a wide variety of scenarios.”
Syria's state media said Syrian air defenses intercepted "hostile Israeli missiles" early Thursday that were fired over southwestern Damascus. Hours later, state-run Al-Ikhbariya TV broadcast a live feed of Syrian air defenses firing into the sky above the capital, and loud explosions and air defense firing were heard through the night.
There was no immediate information about Iranian causalities, but Conricus said the main intent was to target hardware rather than personnel.
Israel warned Russia ahead of the airstrikes on Thursday, according to Reuters.
Israel Prime Minister Benjamin Netanyahu just returned from a trip with Russian President Vladimir Putin to discuss the ongoing situation in Syria, where Russia also has a military presence backing Assad.
But Israel and Russia have maintained close communications to prevent their air forces from coming into conflict.
Syrian media claimed earlier that the hostilities began with Israeli fire at Syrian positions in southern Syria from across the border, with Syrian forces then returning fire.
Tensions between Israel and Syria have been on the rise as Iran has sent thousands of troops to back Syrian President Bashar Assad. Israel has warned it will not accept a permanent Iranian military presence in Syria.
President Donald Trump’s announcement on Tuesday to withdraw from the Iran nuclear deal has also caused tensions to rise.
Conricus said Israel does not intend to escalate the situation, but noted troops will remain on "very high alert."
"Should there be another Iranian attack, we will be prepared for it," he said.

Democrat Dumb Cartoons

West Virginia, Ohio, Indiana, North Carolina primaries offer November clues, warning signs for Democrats

Tuesday’s Republican and Democratic primaries in West Virginia, Indiana, Ohio and North Carolina provided some clues about what to expect in the upcoming November midterm elections – including warning signs for Democrats.
In West Virginia, Attorney General Patrick Morrisey emerged as the Republican senatorial nominee in a contentious primary marked by the unusual candidacy of the controversial former coal executive Don Blankenship. Blankenship was convicted and sent to prison for a year for his role in a coal mine explosion that killed 29 workers in 2010.
The surprising popularity of Blankenship in pre-election polling – despite his loss Tuesday – demonstrated the continued appeal of anti-establishment candidates nationwide. Blankenship consistently and harshly attacked his own party's leader in the Senate, Mitch McConnell of Kentucky, and very recently used derogatory language that some characterized as racist. 
Even President Trump urged voters not to cast ballots for Blankenship, despite the candidate's suggestion that he is “Trumpier than Trump.”

A Democratic Party campaigning simply on the premise of “resistance” to President Trump and the Republicans is not enough to maximize gains in this election and beyond.

In Indiana, meanwhile, three Republicans competed to face incumbent Democratic Sen. Joe Donnelly, with Mike Braun emerging as the winner. The robust Republican primary may signal trouble for Donnelly and the Democrats in November, as President Trump carried the state by 19 points in 2016.
In terms of the results in Ohio, it appears the Republicans will most likely be able to also retain GOP Gov. John Kasich’s seat.
The apparent winner of the Republican nomination for governor in Ohio, Mike DeWine, is a former U.S. senator and current state attorney general. He already beat the 2018 Democratic candidate for governor Richard Cordray – the former head of the U.S. Consumer Financial Protection Bureau – in the race for attorney general in 2010 and will likely be able to do so again for governor in November. 
Further, Republican U.S. Rep. Jim Renacci's victory in the race for the GOP U.S. Senate nomination in Ohio poses a serious challenge to Democratic incumbent Sen. Sherrod Brown.
There are, however, some promising takeaways from Tuesday's primaries that may provide a guidebook for the Democrats. 
For instance, there continues to be a fresh crop of exciting new Democratic candidates, such as Dan McCready, a 34-year-old Marine veteran and solar energy entrepreneur running for Congress in North Carolina’s Ninth District. He has drawn comparisons to some of the most promising and compelling young Democrats in Congress like Seth Moulton of Massachusetts and Conor Lamb of Pennsylvania.
For the Democrats to capitalize on broad disapproval of President Trump, they must support candidates like McCready and help produce a new generation of Democratic leaders with new ideas and effective policy alternatives to the Republicans, rather than relying on the same leaders who have served for as many as four decades.
Simply put, a Democratic Party campaigning simply on the premise of “resistance” to President Trump and the Republicans is not enough to maximize gains in this election and beyond.
Instead, the Democrats need to focus on fresh faces and fresh ideas. They must present effective proposals for inclusive economic growth, showing voters nationwide how voting Democratic will benefit them, their states and our nation. And they must shake off the ghosts of 2016, handing the gavel to new voices in the party.
If the Democrats are able to accomplish this, they stand a good chance of making significant gains in November. But if not, dreams of a blue wave returning control of the U.S. House and Senate and more governorships to Democratic hands may be nothing more than wishful thinking.

Douglas E. Schoen is a Fox News contributor. He has more than 30 years experience as a pollster and political consultant. His new book is "Putin's Master Plan". Follow him on Twitter @DouglasESchoen.

Haspel faces tough confirmation hearing for CIA as fellow intel officials rush to her defense

Gina Haspel, President Trump's pick to run the CIA, is expected to field tough questions Wednesday during her confirmation hearing before the Senate intelligence committee, as many officials in her corner provide glowing endorsements of the woman who spent decades as a career undercover spy.
Haspel, 61, is expected to say that if she is confirmed by the Senate, the spy agency will not restart a detention and harsh interrogation program like the one used to get terror subjects to talk after 9/11 -- and generated controversy worldwide.
She will say: “Our strategy starts with strengthening our core business: collecting intelligence to help policymakers protect our country and advance American interests around the globe. It includes raising our investment against the most difficult intelligence gaps, putting more officers in the foreign field where our adversaries are, and emphasizing foreign language excellence. And, finally, it involves investing in our partnerships — both within the U.S. government and around the globe.”
In other excerpts, Haspel pledges to work closely with the Senate oversight committee. And, she says there has been an outpouring of support from young women at the CIA who hope she becomes the first woman to run the agency.
Many former top intelligence officials also praise her 33-year tenure at the agency in foreign and domestic assignments.
“She has served in some really tough places, high-risk hardship posts, and has performed some extraordinary operations,” former CIA official Henry “Hank” Crumpton, who was Haspel’s boss in the agency’s National Resources Division, told The Washington Post.
As The Hill reported, 36 former CIA chiefs, intelligence community leaders and lawmakers signed a letter of endorsement to the Senate Intelligence Committee, calling her “a critical asset for our nation at this time in our history... when our intelligence community is under significant pressure at home and abroad.”
The letter reiterated that although “Haspel was often called upon to make tough choices and to work on matters that some find deeply controversial... she did so with dedication and commitment to the cause of freedom, democracy, and the rule of law.”
Meantime, dozens of defenders from both parties have pulled out the stops to support her nomination process, as Fox News previously reported.
The White House released talking points Tuesday night ahead of the confirmation hearing insisting that “Haspel has served her nation honorably and acted legally,” and that any objections were putting political interests ahead of national security and her tenure of defending Americans.
Quoting her backers from the intelligence community, the White House called Haspel the best choice to safeguard the U.S. — ”a woman of integrity” with a “high moral character,” who is “unfailingly honest” and “committed to the rule of law.”
“She’s never lobbied for a job,” one of her former CIA bosses said in The Post. “The jobs searched for her.”
At the hearing Haspel is expected to face a grilling from senators who want details of her connections to the controversial “enhanced interrogation” program, which critics have called torture.
Critics have argued that while U.S. military personnel had been punished for human rights abuses at Abu Ghraib prison in Iraq and elsewhere, few intelligence professionals during previous administrations were reprimanded for their activities with the detention and interrogation program that had been approved by the White House and reviewed and approved by the Justice Department.
Last month, the CIA released a memo showing Haspel was cleared of wrongdoing in the destruction of videotapes at a covert detention site in Thailand, after her boss dispatched the order in 2005. The memo, written in 2011, summarizes a disciplinary review conducted by then-CIA Deputy Director Mike Morell. He said that while Haspel was one of the two officers “directly involved in the decision to destroy the tapes,” he “found no fault” with what she did.
As the hearing nears, Haspel’s critics have stepped up their opposition, arguing that anyone who willingly participated in one of the CIA’s darkest chapters should not be at the helm of the spy agency. They've argued that having Haspel as the face of U.S. intelligence would undercut America’s effort to champion human rights.
A confirmation of Haspel could be interpreted overseas as implicit approval of a harsh detention and interrogation program, Robert Ford, former U.S. ambassador to Syria and fellow at the Middle East Institute in Washington, said.
Republican Sen. Tom Cotton refuted oppositional claims in a commentary in Fox News. “Instead of demonstrating a troubling tendency to go rogue, Haspel’s tenure shows a fierce dedication to the CIA’s mission and to keeping this country safe,” the Arkansas senator wrote.