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Is there a House Jail?

A few weeks ago the Levin Center had a very interesting program, which you can watch here, entitled “How the Courts are Shaping Congress’ Power to Investigate.” If you are interested in congressional oversight and investigations, it is definitely worth watching because there have been a lot of cases arising out of the Trump presidency which will have a profound impact on the investigatory power.

There was one moment in particular that made my ears prick up. For context, at about 33:21 in the program, former House General Counsel Doug Letter starts discussing the (hypothetical) possibility the House might need to reinstitute the practice of inherent or direct contempt. Readers of this blog know that this involves a process in which the House (or Senate) directs the Sergeant at Arms to arrest a recalcitrant witness, who is then tried before the bar of the House. As Letter explains: “The House could go back to what it did before, about a hundred years ago, [as in the case of] McGrain v. Daugherty, we can start arresting people and then they can raise, you know, a habeas defense.”

Letter then elaborates that in this (again hypothetical) situation “[w]e are going to start having a big beefed-up Sergeant at Arms office and we are going to go start arresting people and there is a House jail, it will be expanded considerably and we will just arrest people from now on.” (emphasis added).

There is a House jail? This is an issue that comes up now and then. Some people say there is a House jail, but most say that there is not. Katherine Tully-McManus investigated this issue at some length a few years ago. It might seem strange that there could be a division of opinion on such a straightforward factual issue, but I think it depends in part what you mean by “House jail.” It appears there is no place in the Capitol complex which is currently used or usable for holding prisoners for any significant length of time (e.g., overnight). As Tully-McManus’s Capitol Police sources note, there is a holding facility at Capitol Police headquarters on D Street NE. It may be that when the Capitol Police arrest people in the Capitol or congressional office buildings, there is a place they are taken before being transported to the D Street facility, though this is sheer speculation on my part.

When many people talk about the “House jail,” however, they mean some area in the Capitol that was used as a jail back in the days when the House actually imprisoned people. I was once told by a senior congressional staffer that such a place exists and he had seen it. Tully-McManus discusses some possible locations where that might be.

So maybe that is what Letter meant. It sounded, though, like he was referring to some place that could be used immediately for holding prisoners if the Sergeant at Arms were to arrest them. Perhaps he was talking about the D Street facility, although I don’t know whether the Sergeant at Arms would be allowed to house prisoners there or if those prisoners would remain in the SAA’s custody if they were at that facility.

Anyway, I thought this was worth adding to the lore of the House jail.

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More on Mike Pence and the Speech or Debate Clause

In case you missed it, I have a piece on Lawfare with further analysis of former Vice President Pence’s Speech or Debate argument.  To bottom line it: (1) I think it is very unlikely that Pence will be able to get the subpoena quashed in its entirety; (2) Pence has a reasonable chance of succeeding on the threshold question of whether he is protected by the Speech or Debate Clause at all: (3) if so, there are likely areas where a court would hold he is protected from questioning (e.g., his communications internal to Congress related to the performance of his role as president of the Senate); (4) for the most important communications at issue (namely Pence’s communications with former President Trump and others outside Congress who were attempting to influence how he would exercise his role during the Jan. 6 electoral vote count), the Speech or Debate question is a close one that could go either way; and (5) in any event, the Senate has the power here to waive Pence’s Speech or Debate privilege and/or demand that he testify before the Senate regarding these matters.

And if you want to hear even more about this subject (and given that you are the sort of person who reads Point of Order, I assume you do), you can listen to me and Eric Columbus on the Lawfare podcast with hosts Quinta Jurecic and Molly Reynolds.

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What is a Vice President?

This is not in fact the title of a Valentine’s Day poem for Kamala Harris, but of some preliminary thoughts in response to a Politico article revealing that former Vice President Mike Pence intends to resist a grand jury subpoena from Special Counsel Jack Smith on grounds that it violates the Speech or Debate Clause.

That raises a boatload of novel constitutional questions, but the most basic is just what exactly, constitutionally speaking, is the vice presidency? One “expert” answered the question this way in 2008 (hat tip: Derek Muller):

Vice President Cheney has been the most dangerous vice president we’ve had probably in American history. He has the idea — he doesn’t realize that Article I of the Constitution defines the role of the vice president of the United States. That’s the executive — he works in the executive branch. He should understand that. Everyone should understand that.

And the primary role of the vice president of the United States of America is to support the president of the United States of America, give that president his or her best judgment when sought, and as vice president, to preside over the Senate only in a time when in fact there’s a tie vote. The Constitution is explicit. The only authority the vice president has from the legislative standpoint is the vote, only when there is a tie vote. He has no authority relative to the Congress.

The idea he’s part of the legislative branch is a bizarre notion invented by Cheney to aggrandize the power of a unitary executive, and look where it’s gotten us. It has been very dangerous.

Actually, Article I, which of course deals with the legislative branch, says nothing about the vice president working in the executive branch. And Article II, which is probably what then-Senator Biden meant to reference, does not say anything about the vice president supporting, reporting to, or advising the president. In fact, as the Office of Legal Counsel has explained, “[t]he Constitution allots specific functions to the Vice President in the transaction of business by the Legislative Branch (art. I, §3) but neither grants nor forbids him functions in the conduct of affairs of the Executive Branch.” Participation of the Vice President in the Affairs of the Executive Branch, I Op. O.L.C. Supp. 214 (1961).

Biden’s claims about the vice presidency, made during the 2008 presidential election, related to then-Vice President Dick Cheney’s contention that the vice president was not part of the executive branch for purposes of an executive order granting the National Archives oversight authority over certain national security information in the executive branch. While this position elicited widespread outrage and mockery, Cheney’s view was not without some legal and historical substance. See, e.g, James D. Myers, Bringing the Vice President into the Fold: Executive Immunity and the Vice Presidency, 50 Boston Coll. L. Rev. 897, 901 (2009) (“Cheney’s claims reflect the reality that the constitutional and political status of the Vice President is still somewhat amorphous.”); Glenn Harlan Reynolds, Is Dick Cheney Unconstitutional?, 102 Nw. U. L. Rev. 1539, 1540 (2008) (“Despite the unfriendly political response, the argument that the Vice President is a legislative official is not inherently absurd.”). Furthermore, though Cheney’s argument may have been inconsistent with his assertions on other occasions of executive privilege for the office of vice president, it may have been the latter that should have given way. Reynolds, 102 Nw. U. L. Rev. at 1540 (“[T]he positioning of the vice presidency within the legislative branch—or, at any rate, outside the executive—may be appropriate. Such a reading, however, would render Cheney’s role within the Bush Administration, as well as the modern notion of Vice Presidents as junior versions of the commander-in-chief, unconstitutional.”).

A few years ago Roy Brownell, a lawyer in Washington, D.C., wrote an article arguing (persuasively imho) that while the vice president is popularly considered a subordinate of the president, and often (though not always) acts as such, “as a constitutional matter, the Vice President is independent from the President and can and does take actions and public positions that are contrary to the latter’s wishes.” Roy E. Brownell II, The Independence of the Vice Presidency, 17 Leg. & Pub. Pol’y 297, 300-01 (2014). The vice president’s independence is founded, first and foremost, on the fact that she cannot be removed by the president. Id. at 303. Moreover, contrary to Biden’s suggestion, the Opinion Clause, which authorizes the president to require the opinion in writing of the principal officer in each of the executive departments, does not apply to the vice president. Id. at 314-16. Thus, while the president can ask the vice president for her advice or opinion, he has no constitutional authority to require her to provide it.

In addition, the Twenty-Fifth Amendment, while it to some degree reflects modern assumptions about the vice president’s role in the executive branch, further cements the vice president’s autonomy from the president. Indeed, by giving the vice president the primary responsibility to determine when the president is unable to discharge the powers and duties of his office, even contrary to the president’s wishes, section four of that amendment “underscores the Vice President’s independence” and the fact that the president has no power to remove her from office. Id. at 308-10.

Finally, and most relevantly to the issue at hand, the vice president serves as the president of the Senate, where she has a number of functions, including recognizing senators on the floor, making rulings from the chair, and breaking tie votes. Id. at 316-17. Other functions including presiding at impeachment trials and, of course, presiding over the counting and certification of electoral votes. All of these functions are legislative in nature and are exercised by the vice president independently of the president. Id. at 316-17 & nn. 93 & 97. As Brownell observes presciently: “To permit the President, as a constitutional matter, to order the Vice President to preside a certain way or to vote a certain way would undercut the freedom of the Senate to carry out its own constitutional functions.” Id. at 317.

 None of this proves that the vice president is necessarily covered by the Speech or Debate Clause, much less that the specific questions that the grand jury wishes to ask of the former vice president would violate that clause. It does, however, suggest that Pence’s legal argument is not implausible on its face. See Myers, 50 Boston College L. Rev. at 936-37 & n. 307 (suggesting the possibility of limited legislative immunity for the vice president). Furthermore, Pence’s decision to invoke legislative privilege, rather than executive privilege, is interesting in its own right. It underscores that on the matters at issue Pence was fulfilling his own independent constitutional duties, not exercising executive branch functions delegated to him by the president. As a politically loyal vice president, Pence listened to what former President Trump and his minions had to say, but as a constitutionally independent officeholder, he made his own decisions based on the Constitution and the oath he took to defend it. This framing of the matter may have both political and legal ramifications in the months to come.

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Levin Center Program on “How Courts Are Shaping Congress’ Power to Investigate”

On Wednesday, February 8, 2023, from noon to 1:30pm, Elise Bean of the Levin Center will be moderating a virtual program on “How Courts are Shaping Congress’ Power to Investigate.” The participants include former House Counsel Doug Letter, as well as law professors Emily Berman, Andy Grewal and William Ortman. (Grewal’s title should also include “tweeter extraordinaire”).

A large number of recent court decisions, including most importantly the Supreme Court’s decision in Trump v. Mazars, have major implications for congressional oversight. (I am in fact working on an article with the tentative title of “How Mazars Will Shape the Congressional-Executive Informational Battlefield.”) So I am very much looking forward to hearing what these scholars and practitioners have to say.

You can register for the program here.

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Potential Roadblocks to a Congressional Investigation of the Dobbs leak

The Supreme Court recently released its report on the leaking of the draft Dobbs decision. Spoiler alert: they don’t know who did it. I have to admit I have not actually read the report, though I have read or listened to the opinions of many people who (may) have. The main takeaway for me is that the chances of a tv show about the Marshal of the Supreme Court have gone way down. Sad.

Of more interest to this blog, however, is the suggestion that Congress, specifically the House Judiciary Committee, may take up the slack and launch its own investigation of the matter. If so, this will raise some important and unresolved questions about the scope of congressional authority to probe the activities of the judicial branch. As discussed below, it may be more difficult for the committee to get information about this matter than it anticipates.

Continue reading “Potential Roadblocks to a Congressional Investigation of the Dobbs leak”

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The Attorney-Client Privilege in Congressional Investigations after Mazars

I have been meaning to blog about a new article by Dave Rapallo entitled House Rules: Congress and the Attorney-Client Privilege, 100 Wash. U. L. Rev. 455 (2022), which analyzes the Supreme Court’s dicta in Trump v. Mazars that recipients of congressional subpoenas “have long been understood” to retain common law privileges such as the attorney-client privilege. I commend Professor Rapallo’s article for its thorough analysis and defense of Congress’s historic position that it is not obligated to respect the attorney-client privilege or other privileges that stem from the common law, not the Constitution. Just this week his article was named the winner of the 2022 Levin Center Award for Excellence in Oversight Research (which also served as a reminder to me to post on this subject).

When the Mazars decision was announced, I pointed out that to the extent Chief Justice Roberts was commenting on what had “long been understood” by Congress, his observation was clearly wrong and not supported by the sole authority cited for the proposition, a 2003 CRS report by Louis Fisher. Contrary to the chief justice’s assertion, Congress has long asserted that it has discretion to decide whether to accept claims of common law privileges such as the attorney-client privilege. I therefore concluded (somewhat undiplomatically) that “the Supreme Court’s poorly researched dicta on this point should not be given any weight.” Continue reading “The Attorney-Client Privilege in Congressional Investigations after Mazars”

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Will the Appointment of a Special Counsel Affect a Congressional Referral of Donald Trump for Contempt of Congress?

The Attorney General has appointed Jack Smith to serve as Special Counsel to conduct an investigation of certain matters relating to former President Donald Trump, including “whether any person or entity violated the law in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021, as well as any matters that arose or might arise directly from this investigation or that are within the scope of 28 C.F.R. §600.4(a).” The regulations at 28 C.F.R. §600.4(a) provide that “[t]he jurisdiction of a Special Counsel shall also include the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; and to conduct appeals arising out of the matter being investigated and/or prosecuted.”

This jurisdiction does not appear to cover a potential certification by the House, pursuant to 2 U.S.C. §194, of Trump’s failure to appear and/or produce documents in response to the subpoena from the January 6 select committee. Although that subpoena relates to the subject of the Special Counsel’s January 6 investigation and Trump’s defiance of the subpoena constitutes a possible violation of law, I doubt that violation of law in 2022 would be considered to be “in connection with” efforts to interfere with the transfer of power or electoral vote count in late 2020 and early 2021 within the meaning of the appointment order. Similarly, while contempt of Congress under 2 U.S.C. §192 is a violation of law and a federal misdemeanor, Trump’s contempt arose from the congressional investigation, not from either the Special Counsel’s investigation or the prior federal criminal investigation over which he is assuming control. Thus, the Special Counsel will probably not be able to assert direct jurisdiction over such a contempt certification.

However, 28 C.F.R. §600.4(b) provides that “[i]f in the course of his or her investigation the Special Counsel concludes that additional jurisdiction beyond that specified in his or her original jurisdiction is necessary in order to fully investigate and resolve the matters assigned, or to investigate new matters that come to light in the course of his or her investigation, he or she shall consult with the Attorney General, who will determine whether to include the additional matters within the Special Counsel’s jurisdiction or assign them elsewhere.” Thus, were the Special Counsel to determine that expanding his jurisdiction to include a congressional contempt referral is appropriate under the terms of 28 C.F.R. §600.4(b), it would be up to the Attorney General to make that decision.

It seems to me that there is enough of a link between the Special Counsel’s investigation and a contempt referral of Trump to support an expansion of the Special Counsel’s jurisdiction under this somewhat nebulous standard. After all, the committee’s subpoena relates to factual matters which are directly relevant to the Special Counsel’s investigation, and it may advance that investigation to determine why Trump withheld testimony and documents from the committee. Moreover, a separate part of the Special Counsel’s investigation relates to Trump’s failure to cooperate with government efforts to retrieve classified and other official documents in his possession and Trump’s possible obstruction of a grand jury investigation by failure to produce documents responsive to its subpoena. His refusal to comply with the January 6 committee’s subpoena therefore may demonstrate a pattern of illegal behavior.

Even if the Special Counsel’s jurisdiction were expanded, this does not necessarily mean Trump will be prosecuted for contempt of Congress. The Special Counsel regulations require that the Special Counsel ordinarily “comply with the rules, regulations, procedures, practices and policies of the Department of Justice.” 28 C.F.R. §600.7(a). This is the provision that (arguably) prevented Special Counsel Mueller from indicting then-President Trump due to the Office of Legal Counsel’s determination that the Constitution prohibits indictment of a sitting president. Similarly, Special Counsel Smith might be prohibited from prosecuting Trump for invoking testimonial immunity because of the longstanding DOJ/OLC view that a former president is absolutely immune from compelled congressional testimony.

There are, however, several reasons why this view may not (and probably should not) bind Smith. First (and most dubiously), there is the argument (also made with respect to Mueller) that a special counsel is not bound by OLC opinions but is free to reach his or her own conclusions on constitutional questions. Second, although the view that a former president enjoys absolute testimonial immunity has been reflected in opinions and pleadings, it has not to my knowledge been the subject of a formal analysis and opinion by OLC (or DOJ). Thus, in contrast to OLC’s formal opinion that a sitting president cannot be indicted, the department’s position on absolute immunity for former presidents may be fairly characterized as more of an assumption than a definitive opinion. Third (and most importantly), OLC has always viewed the scope of absolute immunity to be limited to official activities. Here there is ample room for the Special Counsel to conclude that at least some of the matters about which the January 6 committee wishes to question Trump are political or personal, rather than official. [Note that if Trump’s legal team takes the position in the litigation over classified documents and presidential records that certain documents in his possession should be considered personal or political, this may cut against his interests here].

Furthermore, even if Smith concludes that Trump is protected by absolute testimonial immunity, this would not prevent prosecution with regard to Trump’s withholding of documents responsive to the congressional subpoena. While there are no doubt those at main Justice who would be reluctant to prosecute a former president for asserting invalid but non-frivolous objections to a congressional document subpoena, these concerns would not appear to rise to the level of a practice or policy that would be binding upon the Special Counsel.

For all of these reasons the appointment of a special counsel makes it substantially more likely that a certification under 2 U.S.C. §194 could actually result in a criminal prosecution of the former president. The January 6 committee should take this into account in deciding how to proceed with regard to Trump’s defiance of its subpoena.

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How Should the January 6 Committee Respond to Trump’s Lawsuit?

On Friday, November 11, former President Trump filed suit against the January 6 committee to prevent enforcement of the subpoena for documents and testimony the committee issued to him on October 21. The complaint asserts that as a former president Trump is absolutely immune from compelled congressional testimony (at least outside the realm of impeachment). In addition, it alleges that the subpoena is invalid for a number of reasons, including that it was not issued for a valid legislative purpose, that it fails the heightened standard of scrutiny established by the Supreme Court for subpoenas of presidential information, and that the January 6 committee lacked authority to issue subpoenas because it was improperly constituted.

All of these claims, in my view, should lose, and I think they all probably would if the litigation ever resulted in a final judgment on the merits. However, as Trump’s lawyers well understand, there is very little chance of that happening before the January 6 committee expires at the end of this Congress, which will most likely moot the case. For Trump’s legal team, the advantage of this lawsuit is that it will buy time and possibly forestall a contempt vote in the House. Continue reading “How Should the January 6 Committee Respond to Trump’s Lawsuit?”

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Some Thoughts on the January 6 Committee Subpoena to Former President Trump

As you may have heard, the January 6 select committee has adopted a resolution authorizing its chair to issue a subpoena for documents and testimony under oath to former President Donald Trump. This action raises some legal, political and practical issues, which are considered below.

Is a former president immune from a congressional subpoena? The answer to this question is pretty clearly no. It has been well-established since Watergate that even sitting presidents are subject to judicial subpoena and, as the D.C. Circuit recently observed, its own precedent from that era “strongly implies that [sitting] Presidents enjoy no blanket immunity from congressional subpoenas.” Trump v. Mazars U.S., LLP, 940 F.3d 710, 722 (D.C. Cir. 2019), rev’d and remanded on other grounds, 140 S.Ct. 2019 (2020). It is therefore very unlikely that former presidents would be found to enjoy such blanket immunity.

Is a former president absolutely immune from compelled congressional testimony about his official activities? For reasons I have discussed before, the answer to this question should be no, although I acknowledge there are good reasons why Congress should be (and historically has been) reluctant to compel the appearance of former presidents except in extraordinary circumstances. Continue reading “Some Thoughts on the January 6 Committee Subpoena to Former President Trump”

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Who Loves Testimonial Immunity? Just Us.

The Department of Justice, at the invitation of presiding judge Carl Nichols, has filed a statement of its views regarding whether former Trump chief of staff Mark Meadows is entitled to assert testimonial immunity in response to a subpoena from the House select committee investigating the January 6 attack on the Capitol. Because the DOJ brief ultimately concludes that Meadows must provide testimony in this instance, its reasoning may escape serious scrutiny in most quarters. But not on this blog.

So let us count the ways DOJ is full of crap.

  1. DOJ’s fundamental position on testimonial immunity has not changed, and it is still supported by nothing more than ipse dixit.  DOJ reiterates “the Executive Branch’s longstanding position” that “a sitting President’s immediate advisers—current and former—cannot be compelled to testify before Congress about their official duties.” DOJ Br. at 7. As it routinely does, DOJ stresses that its position has been consistent over many years and through administrations of both parties, thus proving self-interestedness is a bipartisan phenomenon and little else.

To support this (longstanding- did I mention that?) position, DOJ offers a cursory regurgitation of arguments/assertions it has made many times before: (1) immunity is needed to protect the president’s independence and autonomy; (2) the president’s advisers should not have to appear because their testimony would largely be protected by executive privilege anyway; and (3) without immunity the president’s advisers would be subject to congressional harassment and distraction from their important duties. DOJ Br. at 5-7.

To be sure, DOJ acknowledges that “some judges” have disagreed with its view, citing in a footnote four opinions, two by judges of the U.S. District Court for the District of Columbia and two by judges of the U.S. Court of Appeals for the D.C. Circuit. See DOJ Br. at 7 & n. 4. Left unmentioned is the fact that exactly zero judges have agreed with DOJ’s position or even expressed the slightest interest in adopting it.

More importantly, DOJ makes no effort whatsoever to respond to the judicial criticisms of its position, which were first voiced by Judge Bates in 2008 litigation involving Harriet Miers. See Comm. on the Judiciary v. Miers, 558 F.Supp.2d 53, 100-06 (D.D.C. 2008). Instead, it simply says that it will adhere to its position unless the D.C. Circuit and/or the Supreme Court definitively reject it. DOJ Br. at 7.

This stance is particularly remarkable because another judge called out DOJ for precisely the same obstinacy in 2019:

DOJ . . . assert[s] that Miers was wrongly decided . . . [and] has emphasized that Miers’s sphere of influence is exceedingly limited. The thrust of the latter contention is that Miers is only one opinion . . . and implicitly, that the law is not established by the word of a single district court judge. On the other hand, says DOJ, scores of OLC attorneys have considered this issue over the past five decades, and in a series of opinions, OLC has carefully concluded that senior-level presidential aides do enjoy absolute testimonial immunity. . . . DOJ suggests that, in the absence of a groundswell of judges rejecting the concept, this Court should not readily find that the law is what Miers concluded.

Comm. on the Judiciary v. McGahn, 415 F.Supp.3d 148, 203 (D.D.C. 2019). Instead of confronting the analysis in Miers directly or giving the court “any principled reason to interpret the law in a different fashion than Judge Bates did,” the judge noted, DOJ simply dismissed his ruling “before proceeding to draw solely from OLC opinions to support the argument that senior-level presidential aides have absolute testimonial immunity.” Id.

The judge in question, of course, was none other than Ketanji Brown Jackson, who recently became the first (and so far only) Supreme Court appointment of the current occupant of the White House. Given that the McGahn opinion was Jackson’s most important and well-known opinion prior to her Supreme Court nomination, one might have expected DOJ to at least acknowledge her harsh criticism of its testimonial immunity theory. One would be wrong.

Judge Jackson went far beyond merely disagreeing with DOJ on the issue of testimonial immunity. She agreed with Judge Bates that DOJ’s legal position “is all but foreclosed by the binding case law Miers cites,” and she dissected at length “the logical flaws in DOJ’s legal analysis.” McGahn, 415 F.Supp.3d at 202. The judge found that “absolute testimonial immunity for senior-level White House aides seems to be a fiction that has been fastidiously maintained over the course of time through the force of sheer repetition in OLC opinions, and through accommodations that have permitted its proponents to avoid having the proposition tested in the crucible of litigation.” Id. at 214. DOJ’s contention “simply has no basis in law,” its argument “truly makes no sense,” and its position is ultimately based on nothing more than “ipse dixit.” Id. at 206-07, 212 & 214.

In short, Jackson makes clear that she does not view this as a close legal question about which reasonable minds can disagree. Either her McGahn opinion was overwrought and hyperbolic, or DOJ’s testimonial immunity theory is utterly without merit. There is no middle ground.

Maybe someone should ask President Biden which it is. Continue reading “Who Loves Testimonial Immunity? Just Us.”