The Rao dissent in the Mazar case is breathtaking. Some quotes: "[A]llegations of illegal conduct against the President cannot be investigated by Congress except through impeachment." (p. 6)
Rao quotes the relevant Supreme Court precedent: “[I]n determining the legitimacy of a congressional act we do not look to the motives alleged to have prompted it.” Then in very same paragraph, refuses to be controlled by that precedent.
Supreme Ct says courts cannot query Congress's motives. Oh yeah? says Rao: "Yet a legislative purpose cannot whitewash this subpoena, which— by the Committee’s own description—targets allegations of illegal conduct by the President." (p. 7)
Rao tries to distinguish between the guiding precedent and this particular case so as to justify her in disregarding precedent: "The question of whether the House may issue this subpoena for a legislative purpose ... has never been squarely addressed by the Supreme Court" (12)
Rao bases her rejection of the precedent on a pretty breathtaking argument.
1) While Congress has plenipotentiary subpoena power most of the time;
2) That power actually *shrinks* when it suspects criminal wrongdoing.
1) While Congress has plenipotentiary subpoena power most of the time;
2) That power actually *shrinks* when it suspects criminal wrongdoing.
3) When Congress suspects a crime, it must investigate by impeachment and only by impeachment.
4) Since Congress has not impeached, it cannot investigate this suspected crime.
Rao does not put the argument as directly as that -put directly, it sounds bad - but that's the gravamen
4) Since Congress has not impeached, it cannot investigate this suspected crime.
Rao does not put the argument as directly as that -put directly, it sounds bad - but that's the gravamen
