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Marty Lederman
@marty_lederman
, 3 tweets, 2 min read Read on Twitter
1/ Having sharply criticized @AndyGrewal for ignoring the principal, compelling reasons the House has for obtaining Trump's tax returns, I will gladly concede this much: The House is putting its worst foot forward by invoking 6103(f)(1) ...

@AndyGrewal @BDGesq @DanielJHemel
2/ ... and by not offering assurances it won't make the returns public. The SCOTUS is likely to be very sympathetic to the claims of pretext in the DoT letter, even if it ultimately defers to the W&M Committee.

home.treasury.gov/system/files/1…
3/ The House would be in a far, far stronger litigating position if the request came from HPSCI under (f)(3), so that that committee can review the returns in executive session for the purpose of assessing any foreign influences on the POTUS.
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More from @marty_lederman see all

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Marty Lederman
@marty_lederman
1/ Usual 5-4 split overrules Nevada v. Hall today.

supremecourt.gov/opinions/18pdf…

Note that the majority--including those lauded as supposedly adhering to the new "original public meaning originalism" -- abjures any textual hook.

@WilliamBaude @Richard_Primus @dorfonlaw @tribelaw
2/ They rely, instead, on an alleged "implicit ordering of relationships within the federal system," and proudly invoke "we must never forget, that it is a constitution we are expounding”! "There are many other constitutional doctrines," Justice Thomas adds, ...
3/ ... "that are not spelled out in the Constitution but are nevertheless implicit in its structure and supported by historical practice."

The hue & cry of apostasy from the new originalists/textualists should be coming any moment now . . .
Read 4 tweets
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Marty Lederman
@marty_lederman
1/ It's hard to say for sure because we're not privy to the negotiations, but from the looks of the exchange of letters it *appears* the Nadler/Barr dispute reduces to a question of how many members can see the non-6(e) redactions, and how many staff members they can each bring.
2/ If so, this would be an *absurd* hill on which *either* side should plant its flag in litigation. Surely a compromise is possible. On the one hand, Barr doesn't have a terribly compelling reason not to allow all members of HPSCI and HJC to see the lightly redacted version.
3/ On the other, it's reasonable for DOJ to want to prevent leaks that might compromise ongoing cases (these redactions were, after all, made by Mueller's folks), and therefore it's probably reasonable *in the first instance* to limit each member to one staffer or so.
Read 8 tweets
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Marty Lederman
@marty_lederman
1/ With a couple of exceptions, my friend Jack doesn’t much engage with @benjaminwittes’s and @charlie_savage’s detailed accounts of how Barr repeatedly misled and distorted the Report, in his letters and testimony. Having said that, I should add that I think the focus, ...
2/ ... by pundits & members of Congress, on whether and to what extent Barr outright lied (he's clever, and careful to avoid it most of the time) or “merely” painted a very dishonest picture, is fundamentally misguided and a diversion from the much more serious crisis,
3/ just as the focus on whether Trump satisfied the elements of 1512 is an unfortunate and short-sighted diversion from the more important matters of Trump’s repeated violations of his oath; his incessant efforts from Day One of his term to undermine our system of justice &
Read 12 tweets

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Renato Mariotti
@renato_mariotti
1/ The best rationale House Democrats have for obtaining Trump’s tax returns is to assess whether he has conflicts of interests. Yet their current rationale is to assess the adequacy of audits of presidential returns.

House Democrats should put their best rationale forward.
2/ There are legitimate reasons for Congress to be concerned about foreign conflicts of interest. Trump was the subject of a counterintelligence investigation to determine whether he was compromised by Russia. His former fixer lied to Congress about his Moscow hotel project.
3/ Congress also could use the returns to look into the concerns that are central to the various Emoluments Clause lawsuits. Congress has a legitimate reason to be concerned about foreign payments to Trump’s businesses.
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Greg Sarafan, Esq
@GSarafan
BREAKING: President Trump learned within the last 24 hours that Robert Mueller would like to ask questions both orally and written for the President to respond to issues surrounding obstruction of justice.

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