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tv   Public Affairs Events  CSPAN  October 26, 2016 12:00am-2:01am EDT

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at the end of the day they are going to look at do they want to return to the good old days when hillary clinton and the white house and democratic controlled senate where they cram things through. >> to restrict any woman's right to abortion during her pregnancy there is free speech to gun rights and the subject to restrictions which other rights do you believe are absent?
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to me it is partly the constitution and i don't think that any third party or any government has the right to force anything on a woman or her body without her can send and that is a moral position as much as a constitutional one for me. >> you told us earlier we need to turn to the immigration enforcement and you said if we are here illegally you are going to be deported. that sounds less like what we heard from you in recent years and like donald trump . mass deportation plan. >> there are people that haven't violated the immigration law and i stated before they are not here by their own choosing and
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they ought to have the opportunity to come out of the shadows and have a legal status. >> we have time for you to ask one more question. so you can start with that. the fact is hillary clinton received a subpoena and decided what she was going to turn over to evade public scrutiny. tell me what you think about that. >> she said it's a mistake, i think it's a mistake.
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the folks who did the criminal investigation. >> independent law enforcement over the political strategy. transparency is important when something is coming forward and it's a reminder for everybody on the security protocols something everybody needs to pay attention to. what i do find interesting is congress is exempted from your version of the open records act so one of the things that troubled me as a double standard when we were pushing from the transparency in government and every other corner under the wall where you give your self.
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>> members of congress should be subject to all the walls regulated by those they impose on the american people. when the obamacare was passed i dropped out of the plan and bought my policy with the insurance exchange and found my deductible went from $4,500 int0 to 6200 i had to pay 40% of that but 100% i believe if every member of congress have done what i did, obamacare wouldn't be standing today. it's time for closing statements by the claim toss.
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the floor is yours. >> thank you so much for doing this. i have led the fight against the pa that has failed to meet the nation's obligation to the men and women that serve the country in terms of getting into health care that they need and deserve. i will continue to work for a balanced budget requirement to stop washington from spending any money we do not have. define common grounds and i will stand up to whoever is in the white house, republican or democrat.
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when their actions don't reflect the values. >> congress is broken. before there was a donald trump, there was a congress that was embarrassed for its refusal to do anything, to work to get anything done. folks would be more interested in pointing fingers and getting things done. to me we cannot afford to have congress not work. we must take up issues like student debt reform, lobbying reform and we need to take climate change seriously and move towards renewable energy and pass the above of the act. we need to fix the hole that got blown into the voting rights act and we should be enforcing and supporting policies that the end of the day we need a congress that is going to get back to work for people and it is the
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reason i would respectfully ask for the vote of the people in the congressional district. >> thank you for your time we appreciate you participating in the debate. ) talking about how the debate went we will talk about a donald trump's impact on the colorado republican party for and against three weeks away. stay with us.
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joining us on the phone is the campaign manager for the ticket thanks as always for being with us. >> it is my pleasure. someday you told chuck on meet the press we are behind with two weeks to go before the election. how do you get ahead? >> we are behind slightly inside the polls and up in others particularly states barack obama carried the state twice. these are states john mccain and mitt romney didn't carry.
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to do the rallies and between states directly to the people he can't wait to get fair coverage. we do have paid advertising. i believe that an unconventional candidate and an unconventional approach i will tell you lots of folks think that the crowds do not matter. i will tell you the enthusiasm and the momentum the matter what the stories are coming to matter how victory last come of folks are showing up ten to 15,000 strong for each event and that's got to mean something because all of those folks will vote if you are waiting for hours and hours to save a you are there when he was there, you are part of the movement which is more of a movement in the campaign of
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course he will come out and vote. we also have the returns in some of the early voting in places like north carolina, iowa, ohio and other words we were focusing on the fact that they've helped us tremendously had an absentee ballot in place and the data operation has been helping to beef up those aspects of the campaign and we're starting to see that. >> the average in states like florida, pennsylvania, new hampshire give the edge to hillary clinton in ohio right now donald trump is only up one percentage point in the margin of error. >> sure but that's what campaigns are for and we have seen mrs. clinton below 50 every year. of course they don't matter as much but even in the credible when it is a tight race. you see the poll yesterday was
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five points nation wide but she's better at 50 and it suggests to me if you are the incumbent and represent the system and the status quo in the state it is unlikely that they are going to break the right. what are these undecided voters going to learn between now and election day that they don't already know? something is holding them back and they've decided i am not voting for every clinton and now they want the closing argument to go to donald trump. i think that he did a great job the last couple of days talking about his vision it is specific for if you go to the website or on the twitter feed and look for themselves. releasing energy investments in education reform, defeating
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terrorism certainly, respecting law enforcement, specific plans to repeal obamacare. the big news today is what we've always known that obamacare is a bad deal for many americans. you have a 25% tammy and increase coming down from one of the largest and shirkers and that hurts and it's what we've always said it's the best example of how invasive and intrusive big expansion of federal government has become for many americans. >> as you know you've been asked so often the number one criticism is that he has not been disciplined enough. you mentioned the gettysburg speech and you talk about the time warner merger in his own accusers stepping on what was his major policy speech on his 101st days. so what did you tell him about that? spinet i think that he has a right to defend himself and those are his words and his campaign. i'm always respectful of that.
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second, i think that he's at his best when he sticks to the issue because when you go to the rally that's what they want to hear and he has a great advantage over hillary clinton in two ways. one is she cannot say he obamacare has been a great deal for most americans. many people feel fewer choices, higher prices, less access. she can't say that we have stop prices from expanding. she can't disavow her own record. so the issue that really benefits him and the second thing he has going is she doesn't seem that interested in talking about the issues. if you look at her negative ads are entire campaign is about donald trump and that isn't aspiration optimism. there's nothing uplifting it's just a cesspool of destruction and i believe many voters will
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reject that. so he outperformed a number of the averages in the primary and because i think last-minute folks are saying who am i is not a change maker. i want to take the country and washington, d.c. in a different direction. here's my chance to do that so i'm going to do that and go for donald trump. >> on wednesday, the running mate will be in salt lake city campaigning. this is a state that hasn't voted for a democrat since 1964 when lyndon johnson won in a landslide. are you worried about utah? >> we want to make sure the independent candidate doesn't win utah because it's more like running for the governor of utah. he spent an awful lot of time there and i think that those that put him in that position just wanted to choke off the trump pence path that has been a
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red state but as you see if you get a candidate who shares a lot in the state to run almost exclusively you can get up to 31, 32 and the truth anybody can win with 32, 33, 35% of the vote but it's also where he has a friend in senator leahy and recently talked on his way to colorado and nevada as well but i also take nothing for granted. that's my job and it's also not to take a break of promising statewide poll and go deploy our best resources there. we are trying to get a tighter electoral map and they'v than te in the past. i look towards the effort as a partial model in that even though some of the states president obama and his team
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looked like they had foregone look better for him as he started to move on. but he didn't look at those states. they kept competitive and wanted to seal the deal and that is a smart strategy as a two-term president. >> and finally this fall a skit on you and your day off. your reaction to what they did? >> it was flattering and adorable i know that it was a parody as my cousin said they really followed you around. i think on the family cited captured my life into chaos and a busy household so i think it was great and i think they are giving a nice job transferring skills between hillary clinton and me that can't be easy but it was filled with humor and we had
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a good party laughing my household. >> how about alec baldwin playing your boss? >> he seems to be a meaner donald trump. obviously kate mckinnon as hillary clinton is supported in real life and alec baldwin is not supportive of donald trump, so there's something to that when you are portraying someone, but i think some of the writing is good but some people could see the funny and humorous donald trump i see often and i think folks in the rally do. those that get the chance to get to know him and listen to him they do see that and i think some of the media coverage, they are never interested in the 45 minute speech into the jokes he told her that were funny in howw much time he spent after signing posters and shaking hands and
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hugging kid. he likes that. it's his oxygen and lifeblood of the campaign. he enjoys mixing it up with people and that's everything a candidate should be. so even when people just want to cover what he said i hope that folks are getting the whole essence of donald trump. >> the manager of the campaign joining us on the phone in new york, thank you for being with us. >> thank you. all the best. a former staffers and law
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professors discuss congressional oversight powers of the executive branch. the constitution project hosted this event. good morning, everybody and thanks for joining us today at this beautiful facility. i am one of the codirectors of the center at wayne state university law school. we are one of the sponsors of today's event along with the constitution project. senator carl levin is being joined today by the president of the constitution project and the chair of the center and distinguished legislator in
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residence at wayne state university law school. the person that is supposed to be presented in the remark press morning as our executive director but she's flying in from new york this morning and has not made it yet. so i will assume her position here. we are here to ask and the struggles between the congress and executive branch over access to information. the title of this conference the right to know on that part of congress and that it's a right to document and witnessed the executive branch as part of a legitimate inquiry to the executive branch is doing or has done. first is the right to know on the part of the administration that is a refusal by the executive branch to respond to a request for information or access to a witness in order to protect its deliberative process and the president right to
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confidentiality. we are joined by two panels of experienced practitioners and scholars who will help us grapple with this issue today. the format will be as follows. first we will have additional welcoming remarks and opening comments. from 9:15 to 10:30, we'll hear from we will hearfrom a panel fs because the six individuals on oversight versus holter and lynch which involved the fastest program and the case involving harriet miers. we will break a 10:30 for 15 minutes and then hear from the panel of individuals who have both from experience and scholarship given serious thought to how congress and the executive branch can work through these challenging demands and relationships. we will have a brie brief wrapup afternoon and then adjourn at
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12:15. so now i would like to invite the constitution project to come up and give her welcoming remarks. >> thinks and good morning. i want to welcome you all here today on behalf of the constitution project and thank the center fo senator for cospoe event today and also the senator and a my longtime friend. thank you also to mark rosenberg has written the original when congress comes calling for the constitutional project and it now has updated it or is in the process. we are grateful and delighted that the update is the basis for today's discussion. we ran out of the original long ago because it was so popular and such a useful tool for how the government works. we are pleased that the update will be available in just a few
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weeks if you are interested in the update, please go back downstairs and pick up one of these and we will make sure that you get it. the other day i watched a show on the making of hamilton which i had the pleasure to see on broadway. it was an amazing piece of theater but also a great lesson in history and that's what today's event is about. it's about the history of the government and the balance of power that has been the fulcrum of our democratic system. hamilton was about the executive branch and differences of philosophies and personalities that ended up creating a system of government. it applies just as well to the current system. who controls the government and in what way, what power does congress have and how are they balanced again and by the executive branch and ultimately what role does the court have in
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resolving any disputes that cannot be resolved by the political system itself. with credit to one of the best, everyone wants to be in the room where it happens. our program today is about who gets to be in the room, who makes the decision and how the policy is created once the decision is made. hamilton made it clear that our democracy is not an easy or flawless system. experts today will discuss what happens when congress comes calling. the war between the executive and congressional branches has always existed and always will. while hamilton didn't turn out all that well at least for hamilton himself, the founders created a brilliant system that seems today to be on the verge of breaking apart. there is no right or wrong in the tug-of-war that there must be conscientious people of good will to exercise their powers.
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our democracy depends on it. when congress comes calling and gives them the knowledge and the tools to do their jobs responsibly and in the constitutional powers created during tha the time hamilton portrayed in the developed in the years since then and now i'm pleased to introduce the senator that served in the u.s. senate representing the state of michigan and is the longest-serving senator from that state. he served as both the chair and the ranking member on the armed services committee and has both the chair and ranking member of several oversight subcommittees on the homeland security and governmental affairs committee including some 15 years on the investigation. he was known for his in-depth investigations on the complicated issues and bipartisan approach to oversight and commitment to uncovering the
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facts. these strengths played out in his oversight of the financial sector in the 2008 mortgage bank crisis of wealthy individuals and multinational corporations and money laundering. he brings a wealth of experience and accomplishments to any discussion of oversight and we are so pleased to have him joining us this morning. [applause] thank you so much for the introduction. according to the program i guess you were part of the welcome and i'm sort of the review part of the semi and will be more than a welcome, not quite as long as the papers i stuffed in my pocket, but a little longer than the other remarks. thank you for the great work of
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the constitution project. in the teaching i do at wayne law school we are in the middle of a course and our main focus is on oversight and some of the cases and practices involved we use the book as one of the texts in the course and i hope joslyn gets here. she was the dean of the law school and now she's taking on other responsibilities but is also going to continue as the director at the leaven center. i think the pew center for their hospitality here today. i obviously am thankful to the director, my staff director and one who was also a staff
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director on the investigations and earlier oversight subcommittee that was the oversight of government management. a number of people greeted me and said linda is here and we all love her. and with good reason. she's an extraordinary human being. we have for student four studenh us from the center. we wanted to greet them and give them a chance to participate here and watch what goes on here at this particular forum. let me kick off now with just a few oversight remarks of what we will be talking about here today. i believe very deeply in the constitutional responsibility of
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congress to serve as the check n the operations of the expansion of the executive branch. the responsibility has long been wreckage as does an untroubled part of the system of checks and balances. in 1927, the supreme court explicitly stated in the case that the power to enforce it is an essential and important auxiliary to the legislative function into that position was reinforced when the court clearly acknowledged the congress inherent power to conduct investigations stating that it was a broad power including inquiries in the administration of existing law, needed statutes for defects in
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our economic and political system and to expose corruption, inefficiency or waste. it was that's needed and existing power of congress that caused me when i came here in 1979 and the subsequent 36 years i was in the senate to choose to dedicate a significant portion of my time as a senator to conducting oversight. in order for oversight to work it obviously has to know what's going on in the executive branch and that means making demands on the executive branch for information. documents and witnesses. because i take an expensive view of the congress right to know, i i'm concerned about recent court developments like the case where
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the district court recognized a broad deliberative process, deliberative process privilege. the growth of e-mail in other words, things that can be put into print or lasting, not just an oral conversation but with the growth of e-mail and e-mail weeks i'm somewhat sympathetic to the agencies to protect their intra-agency communications to the extent they are communications in preparation for developing a policy or position or responding to an outside event. in other words, the discussion in the decision-making process
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has real value so that people can talk and communicate without the fear of being mischaracterized as taking a position, a final position either for the agency or the administration or even a position of the person who was uttering the words. but that recognition can result in a flood over time and the consequences if not carefully limited can be devastating to the role of congress and overseeing agency programs. we've actually seen some indication of the overbreadth that is inherited as a possibility and that approach and the indication of that happening in the recent
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investigations of the affordable care act where the house committees sought information that had been denied based on the claim of confidential privileges and i also fear if congressional oversight is viewed as highly partisan as opposed to institutionally sound card that courts may respond with a more protective position than they otherwise would. in other words if it becomes accepted as a consequence can be that congress loses its power to know what's going on in the program that creates and in the executive branch and loses its power to act. congress doesn't have to go to court at least theoretically.
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it has its own inherent enforcement authority that could issue a citation, hold a trial on its own or the hearing on the resolution and if the person is found guilty of contempt congress could act to leap to person and a congressional jail. congress already seems like a jail to some of the members but this is a different kind. this sounds bizarre but the supreme court has recognized this authority and congress used the power over 85 times most successfully. it hasn't been used in 75 years for good reason but it does speak to the right to know. in the recent case the house for
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the first time adopted resolutions authorizing the house general counsel to bring a suit in federal court seeking enforcement of its subpoena. house committees were seeking information documents and testimony and chose to go to the federal district court. the reason they did this as the justicis thejustice department o bring the contempt citation before the grand jury despite the law and requirement that it is the duty that contained a liquid words that reflect a few
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and i want to read them to you. the power of inquiry is as broad as the power to legislate in that lies at the heart of the constitutional role. it's been necessary to the proper letter including the ability to compel testimony is necessary to the effective functioning of courts and legislatures. congress has use for the subpoena power in this case is no less legitimate or important than the grand jury in the united states versus nixon. both involve core functions of a coequal branch of the federal government.
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the recent cases only district court cases so you are subject to revision. but we are on new ground and we have to recognize we have a new president and we have to see if we can come to a resolution between the need of congress and of the need of the executive branch the goal of any document request is to avoid conflict between the branches that were in the political environment where conflict is inevitable and of course that means the tension between congress and the working
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of the branch and the deliberative process to have a free and frank discussion both have to be recognized. the resolution is something i hope we can talk about here today. again i want to emphasize a point which i need briefly before that in resolving the tension between the need of the legislative branch and the executive branch the more intensely partisan partisan oversight becomes, the more likely it is that the courts will protect the equity that is involved in the process in the administration. >> if at any point i would want to reinforce these remarks with
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the bat. there've been some highly partisan oversight hearings and investigations into the disk than to be the perception of the court in trying to resolve what is the equity in an administration, the court is naturally going to say if the congress is going to involve itself in a highly partisan use of the investigative process and not do it on a bipartisan basis for the institutional need to use oversight to get information that the court i believe and this is based on my experience the courts are likely to respond and give without it being
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mischaracterized again as being a decision when it's barely a discussion. so harsh bipartisanship i is another role in the sense in my view and in a number of other ways as well. they will face the kind of issues that you are discussing today so this is a meaningful time to review the rights and polls and principles that govern the tug-of-war between the branches and to contemplate a path forward. what is needed is to ensure congress can access the information that it needs to
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oversee the executive branch and we check the executive branch effectively. how should congress at the same time be accountable for using its oversight powers and tools of oversight appropriately. we look forward to the panelists and we are grateful for them coming today. it's an issue that goes right to the heart of government. [applause] splenic thank you for the remarks that come from decades of experience.
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it is my privilege to look at the development of the law and practice to the executive branch information and to assess where we are right now. this is the name of the cases brought into this active in now it is lynch so all of those are the name for the same case in this situation. i spent 24 years in the senate. it's now the homeland security governmental affairs. the investigation includes the
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dod procurement, seizure policies, disbarment and campaign finance reform. we took a very limited view of executive privilege and right at the branch to withhold information is a position very similar to the legal argument the congressman made in the case and i don't agree on this issue. executive privilege to be is limited to the communications to and from and even then it was narrow and dependent upon the nature of the investigation. i gave little recognition to the process exception when it fell into the communications.
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the kind of questions we're asking the executive branch i don't think raised questions but my attitude was we would rarely if any recognize the deliberative process in the context of the communication. with the decisions things have changed and there appears to be greater recognition the process documents those exempt from congressional access and the courts are the mechanism to settle these disputes.
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we've got to know today what that means for the future of the congressional oversight. it's a significant change we need to see if it is opening to a larger branch to provide the information it needs. and joining me are three individuals do not onl only have direct involvement also have a history of working on numerous other investigations so they can draw from both recent and past experience. with me first introduce the panel. first, we have stephen caster who serves as the deputy counsel for the house committee on oversight and government reform. he joined the committee staff in 2005 and served on the committee as general counsel and chief counsel for investigations and worked on a number of notable investigations including fast and furious, the irs, steroids
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in baseball and check it off. he received his ba from penn state, and his jd from george washington. next ron currently serves as dean of the university of baltimore school of law and prior to that served as as assistant attorney generaassistr legislative affairs and the justice department representing the department on all legislative and oversight matters before congress he's also served as the chief counsel to senator harry reid and kennedy and received his ba from columbia and a jd from yale. then we have andrew, an associate professor at the savanna law school where he focuses on the separation of powers within emphasis on oversight and security and he previously served as associate counsel to the president and assistant counsel for the vice president in the obama white
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house as well as staff director and counsel in the house of representatives. he received his front the university of virginia so i want to thank you all for being here today. each panelist with te will haveo 15 minutes to present their comments and i will then ask a few questions and after that we will open up to the audience for additional questions. let me start with you, steve. you're on the staff are fast and furious. this was only the second time, the first being the myers case, the house decided to use the court to enforce the subpoena and seek a judgment in doing so. can you see why they need this from the court and why you
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didn't use your inherent contempt of authority or seek to use the u.s. attorney to enforce the subpoena. >> fast and furious was gone wrong and the decision was made along the southwest border to stop interdicting weapons that were illegally purchased, and instead allow them to purchase weapons and walk away with a purpose of allowing the network to develop. the plan was to take the whole network down and that didn't work and it's worth a case of oversight and nobody ever said it's not worthwhile to look into
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what happened. there were significant things to look at at the local level, the u.s. attorney's office in phoenix all the way to the senior levels in the justice department. after the investigation commenced a letter was written to congress those false denying the charges and telling us essentially to go away. we had insiders providing first-hand accounts and documents and the weather was wrong is false. ten months later it was withdrawn. another part of the investigation is what happened between february 4 and decembe december 2 nearly ten months
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where congress was stonewalled, obstructed, told and the department told us we were not entitled to any documents. we brought in both. 15 were debated there was a criminal and civil component. that is a major factor why they will not prosecute. the lawsuit is ongoing we filed
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a brief october 6. it relates to things that the court level though i may have an opportunity to talk about it i need to be very strange because it is in litigation and could be remanded but that being said, a lot happened prior to following the lawsuit. you mentioned it hasn't been used since 1916. the process of content would involve the committee passing the contempt citation taking it to the house floor and having the speaker and a sergeant in arms to go in the res and arrese attorney general and bring the attorney general to the house jail and there hasn't been that
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kind of enforcement level so we are not aware even as a valid means of enforcement that hasn't beeof ithasn't been used in so t it's hard to consider arresting the attorney general as an ordinary means of enforcement. >> you saispinning you said deco prosecute because executive privilege but wasn't that a deliberative process privilege maybe you can explain a little bit. schenectady wants me to jump in? there is a component of the executive privilege doctrine according to this executive
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branch doctrine over the years. i think there was no contempt if they are following executive branch policies under the orders banned from the u.s. attorney's perspective no criminal act at all. >> the documents being sought are likely to the justice department they were not just within the white house between to and from. >> subpoenas are issued on the early part of the investigation and by the time we got to the content, we had obtained, not necessarily from the justice department, but he had obtained manwe had obtainedmany of the dd for the operational components and we ultimately sued on 24 of
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the 44 on victims to be items and after february 4. >> do want to respond on the justice department? >> first of all, thank you for hosting this event and the constitution project and this wonderful space and i want to pick up on something senator levin said in his introduction. we are two weeks out and put a final point on that, we don't know how it is going to come out in the polls who will control the agencies of the executive branch and this is a genuine question about who will chair,
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which party will control the various committees and subcommittees of congress. we have what is referred to as a veil of ignorance and it's a useful thing in a moment when you don't know who's going to have a benefit or interest to consider no matter who is issuing the subpoena or responding so this is the right moment to ask these questions and i will jump to to fast and furious in a minute but let me offer these thoughts. i was involved in the oversight request and then as the attorney general i was responsible for speaking for the justice department in response to those
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requests. i am the person that signed a letter that was false. when i became the general but for me a friend told me i was going to sign 100,000 letters and one was going to blow up in my face. it happened to be 2011 on fast and furious. i believe that oversight is important for congress making
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sure public doctors are all spend and if we are a benefit. at the justice department we break it is that kind of oversight kept us on our toes and certainly it uncovered the application that was flawed so there is right to know and. there are several categories at the justice department so to review quickly that the parchment is conducting or there
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may already be an indictment very dangerous for the course of the prosecutiothat prosecution a detrimental way so there we urge congress to be very careful and frankly to withhold oversight while the matter is open and even then we've talked about that some and can talk about it more because the executive branch officials need to be able to communicate with each other. it is an effective and efficient way of doing this which is a sprawling institution with many components not just washington but across the country you can press a button.
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sometimes it is merely the conversation of figuring out what we are going to do with a policy so we do feel reflexively i did her and we think the executive branch officials we need some space to talk among ourselves without that being revealed. ..
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>> >> did did say that what the
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congress can obtain by subpoena. with fast imperious i will answer very briefly not to monopolize the microphone but to lay out the facts and only quibble in this respect that as the house committee sought to determine what happened was illegitimate oversight i believe the department was responsible to provide information. to determine how was that denied the facts that turned out to be true. that was legitimate and documents were provided that explained the individuals that had knowledge of the of matter more closely that turned out not to be true. but if congress can review
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how the department responded to the oversight memo on them know that to getting to the heart of the ability of the executive branch to function. in in a rough way the dispute was shed any executive branch say let us talk among ourselves how we would respond to the oversight and ultimately the department released the material to show they were responding in good faith to get to the bottom of the century shin bet officials in washington did not understand for the prerogative to ask questions >> one thing he didn't mention the head the atf and
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nelson came in to talk to was without his handlers to tellus the justice department was trying to keep it permission from congress comment push away evidence from political affiliations. that is a very relevant piece that happened in july 2011. our investigation is what happened over those 10 months? what is the significance greg. >> first of all, full disclosure i was his lawyer during all of this have the white house components several got letters from the office of the national drug control policy me have a
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lawyer in the office he was a senior justice department official interviewed by the committee so i had work to do because i was definitely a part of those various roles that was in the public domain. but i will say at first of all, based on my experience before went into the white house with my time in the executive branch they see this from totally different perspectives as food for thought. congress very much sees this as the legal process to use although language hearings and subpoena and contempt
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and there is validity becomes from history of the legislative and judicial functions before they ever even founded. like negotiation where they are coequal branches of government to recognize that the executive branch that needs to be honored as well. so with those essential functions as they see them. there is a cynical side that congress can help to suggest they are entitled as a legal
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process in a court that is within the self-interest to do so also within the executive branch to protect the status quo. within the two branches to go back across the administration's of the parties of how it works. with the genuinely held belief. cut time but that is a much more negotiated results of that process of entitlements that is 1.diaper out there as food for thought. but when the myers case came out with the house judiciary committee, resulted with the
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blanket immunity from the white house counsel coming to testify. ben and the ruling held there has to be a question by question assertion of privilege before the committee you cannot say it is so close to the president it cannot come up under the circumstances under the subpoena. but tracking that thinking the principle that comes out that we will not have this that the categorical level. with the ada to go document by document. if you ask for every document generated by "fast & furious" after february february 4th beckett's the clips service every day.
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with the adl to move document by digit -- document so labatt is one lesson with the document level. that is a big win for congress from where the law stands now. but another point that we mentioned was the principle of process privilege applies into congressional requested it is a thing where there have been to a totally separate legal doctrines with mars and venus. such as deposition with the
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spousal immunity, etc. including process of privilege outside of the narrow component from what was recognized on a constitutional basis. they always believe that executive privilege is a bundle of ideas with state secrets with presidential communications pending adjudications so it is all part of executive privilege and to bring that so those
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two political branches with those echo chambers now with the judicial involvement. you will live and die by the sword. with those leveraged annex. with those disputes. >> the first time they have recognized the intra agency document. >> it is my recollection the judge felt that they had done that and she was falling that president so that was a case that has been disputed by both branches of the meeting hers seem to adopt the executive branch philosophy. to make the strongest case
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we have never had. >> the last point is i love congressional oversight with the walter reed investigation. for the supply chain in afghanistan that is such an important rule for the executive branch to help congress learned things. and the biggest impediment to a congressional oversight with the narrow crystallized in disputes but is more about will and resources there are a lot of committees better not doing a lot of oversight. they have long histories to
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have penetrative oversight. i don't remember the of last time the foreign affairs committee have built the investigative infrastructure to do that penetrating oversight that we need. from my perspective to maintain these executive branch use of the legitimacy of confidentiality the one d.c. a robust conventional oversight to put it away for more meaningful efforts. >> do you feel that is diminished over the last 20 years? >> with the house ways and means committee energy and commerce then judiciary committee.
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and to do more rigorous oversight. to have great emphasis on oversight. and speaker been distracted every committee with the oversight function. little staff of three and five. >> there has been a lot of oversight with executive branch with effective oversight requires a lot of time and he worked on that
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to which results overtime and congressman waxman and the standing oversight committees. and takes time it takes patience but that is not so effective.
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>> in defense of those communities 11 authorization cycle that is more robust with those to cooperate in ways that must not be present with the penetrating subpoena based. with the department of defense of the armed services committee. with so long game and then to resources and to that. >> with this congress it has changed the house committees and have then using it been
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with science and ways and means and energy and commerce and it goes along way to getting the facts. even just by requesting documents to rely on the executive branch to cooperate. a member of the house committees made a lot of national news very hard-hitting oversight currently. >> kelly depose somebody if they come through the door. >> having the authority to issue a subpoena for a deposition to give voluntary cooperation with q&a with
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the oversight matter and that oversight exist the witnesses are more interested to cooperate. >> to raise the issue of bipartisanship the credibility is a function largely to get both parties together. if you represent as a private lawyer if it is signed by the ranking member with more credible threats you not have half of the team of their you'll be on your own with that authority
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itself is more robust when that letter has both parties working together to check the executive access ordeal something in the private sector. >> we saw the in the wells fargo hearing. but the chairmen works extremely well with the ranking member cummings the bipartisan oversight that is happening over the front page of the "washington post" website. i do think it is happening more than and people give the housing credit. like best imperious and benghazi.
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when that is happening that gives oversight a bad name. the house majority leader that the kid nine negative committee was committed as she prepared to run for president. to be partisan as opposed to what they're talking about the then to discuss that gamesmanship to the burdensome of the executive branch to see congress to
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the oversight. >> one of the best defenses one of the strategic things you can do is go into a partisan food fight. very often the partisanship is caused by the defense that asa food fight already. >> several staffers the number one purpose of oversight is political deal have reaction to that but i
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wish shocked that the real purpose of oversight. >> by may tweet sad. [laughter] >> 20% of the oversight matters 80 percent of the attention where 80 percent in the bipartisan level to get results that is a productive beneficial process do you think the courts could be responding to those investigations with bad executive branch with
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those type of hearings? >> but the atmosphere is changing a few go to the courts there was the court's with those other types of doctrines' so most of the time the court wouldn't say if it was in congress's power of inquiry do they have jurisdiction? if so we're not listening to much else. then we will dedicate against the executive branch that is different from those private parties. to get into balancing with
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as confidentiality in excess interest is the political thing to say and how legitimate is this third branch that calls into question the political motivations? it is very uncomfortable territory of keep presenting with that dichotomy they have to get into the game to do that. >> also takes time to go to court. >> then it holds up. it was two years with "fast & furious"? so there is a the factor of time with the effect of the of quality of oversight.
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and then the court says document by document review. >> but that is the tradition to accommodate requests. but those superiors who are not accountable but lately they have not worked so well >> what about "fast & furious"? >> many briefings. >> were they true? >> you have to move on.
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>> we do our best. the documents reflect that. to show high ranking officials to say what is going on? to gather the facts to provide truthful information to congress. i don't think anything would suggest but the people are doing their best. >> i just want to throw in the idea i don't the process would be like every time officials talk about did issue there is a denial. those other realities and leveraging is an dynamics but they will push for more
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disclosure of -- disclosure but post figure for the documents, the the of the investigation what i would call the separation of powers to formulate responses to congress. and i have 13 binders full of subpoenas from the clinton did ministrations. and the high number was on the old committee. some of those subpoenas would be hit the white house to tell us everything you said today. give us all of the eight males from today. it was designed to degrade the executive branch agencies. the chairman have not come
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close to that behavior ever. but to try to get at degrading the ability to respond to the congressional request. this is a much milder version but i did have concern after going after those documents that our representative of a whole lot of people to address a good-faith. >> it seems to me there is a situation where individual chairman have the issue -- power to issue to seek an require majority rule. >> that was the of mccarthy's situation. >> maybe government oversight.
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but if it is expanded where more and more members can issue subpoenas willy-nilly. >> but not just the chair but it may have bad my first letter. with that document request letter with the preamble. with those elected officials and then to start encountering resistance. but the very first day wrote an article so when you litigate two years later in defense to a criminal charge of contempt it is the same language the forced to
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morning read of the issue that is going on. so it is baked into the cake so early to have that function with the real evaluation of the language. and that is what we had to live with later. >> end with the investigation but drought any investigation u.s. identify priorities if there is this a p. they don't take documents off the table. >> to identify those priorities normally the overwhelming majority at the time gets the documents that you need to do the oversight work. >> what will the court of
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appeals decided in the holder lynch case? >> that is above my pay grade. [laughter] >> i have not see the other side to write an excellent article. bennett is pretty clear there is no judicial forum but the notion the executive branch agency with that deliberative process to consider how to respond to oversight doing the work of the agency proposal i am
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hopeful with aspect. >> does of president or does the agency? >> under presidential executive order eventually hold executive privilege. >> and that act selfhood is a limiting of function. and to assert to privilege don't waste your time. to have day limit defect but
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so what other reasons this raises significant confidentiality concerns but that language is the executive branch signaling to congress they think might be worthy of executive privilege but then they cannot take the words of that time is preserved for his or her political judgment whether or when to assert executive privilege. >> so that is reluctant. with the executive privilege. can't you work this out? and that is the dynamic.
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to go to that set of documents so the president needs to back us up with executive privilege. >> >> the executive branch is balking at turning over documents report - - referring to the affordable care act and refusing to provide those documents goes to whether not to spend 2.$7 billion without appropriation. the executive branch the obama administration said congress says why? to say coho -- confidential privileges. what is that? is a new term as a drumbeat
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where it is expanding the viewer privilege they don't even name the process. and they cannot evening give an explanation. >> any thoughts quick. >> that could be aligned that is the amenities dispute in the context of standing litigation with the appropriations issues. so the dissent something to hold water as a stand-alone principle of privilege so
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for us to get clarity through its other resources without oversight prerogative with a procedural fact. [inaudible conversations] if the committee's move forward. >> i like answer. soda to allow for questions from the audience. we have 10 minutes left. >> we are on c-span see you need to use the of microphone so the question can be heard by the audience. >> i worked with steve on
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"fast & furious" to have an open investigation. but of course, the injustice department is at the heart of the investigation and looking at the mexican drug cartel but looking at the justice department involvement slow the misconduct your recklessness in the operation itself with that instruction element involving the justice department so those two factors go against that position? through the normal process.
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and also with the bed gauzy committee was political but that unearthed the secrets serviette -- a secret server so it did have a public interest function with hillary clinton. that committee alternately found out and in your times wrote the article to suggest and that is investigating about what happened. >> with the separate e-mail server? so it appears a lot of money and time spent is tragic with of personnel in medea -- libya. but as to fast and furious silent to distinguish the
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role of the justice officials to stop in that regard because that is a fair question if you think it is flawed or improved. their long past that point of search warrants of how the department is responding to the oversight request initially made. i think there was a reasonable line drawn. then it moves of a little bit. the department decided it was reasonable. but ultimately to be press for documents considering how to respond to the oversight.
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un have oversight of the oversight. i stand my ground. >> my aim main focus was separation of issues powers. there were others involved in a related directly to wiretaps and then the as bright and terry was killed with one of the guns that had walked from the investigation. there was a couple with the law enforcement activities related to open files were the perpetrators the lead to the investigation. that it was not as high in the politically charged.
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>> and i am mike stern but with the house counsel's office but to pick up on the suggestion that we heard about the president's role to invoke executive privilege? that would suggest that perhaps the dividing line between the dispute that should go or the ones that would stay in the political process, the reason that i say that once of president purslane invokes executive privilege it is in the "fast & furious" case with my recollection the attorney general wrote a letter asking him to explain why it should be invoked.
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in den congress is authorized me of indicative privilege. a mitt those representations to have any personal responsibility and you can correct me if i am wrong. once the of president does that to be sufficiently political that it would be difficult for the courts to be adjudicated to put them in a position and from congress's point of view. so they're all appointed by the president even if they weren't. with the executive branch with the way of looking at things. with the difference between
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the purely legal. so if the president doesn't invoke executive privilege to do so in a timely and personal fashion it cannot just be dragging on but chooses not to, then there is a purer the gold dispute that is a technical issue of documents being requested. and uh jurisdiction of the committee with no broader constitutional issues but defeat wants to win votes the privilege that he can go to the other remedies such as the appropriations power or impeachment of. >> their reaction to that to
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just. >> me? laugh laugh i am a little bit better this about going to court for enforcement with a garden muffled friday because it takes away the incentive to try to negotiate. the best result is most often but the negotiated results pet is what they feel strongly about. so i'd hate to say that at first blush then there is that dispute then go to court. i think that that is the
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problem be tissue have to work -- walk into the white house to tell the council i needed the president to put his or her reputation and politics on the line to defend with my appropriators right now. there is an important part of this. and then to the side of the democratic legitimacy. >> is executive privilege and is that a subset then if yes?
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>> i want to push back with the unquestioned facial lead preserve this right. you see on the inside people were welcoming. lessee paris is the actors as they cover applied to preserve the right to give that with your stance it? to make sometimes through whistle-blowers but that operation for spent a i think congress can call hearings but to describe their thinking in the answer
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but to get the documents but it seems to be less dangerous and unthinking it is now congress should know it then a head monday negative hands and but then those are sitting in an one they are applicable across the board. >> we have time for one more question that we will break. >> my name is richard is for professor wright. to preserve the client's confidence. musty be willing to go to
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jail? >> i would say and do the right circumstances, yes. i knew. but to have some conversations when under new rules, ma bruce but converse head his pledge chair who often writes the fifth -- freedom to get a favorable ruling when your objection but ultimately but to take that responsibility seems -- seriously. >> combat note to.
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[laughter] we will adjourn or we will recess 10 minutes. there's coffee and refreshments we ask that you do not use your cellphone but you can on the ninth floor then we will reconvene in about 15 minutes to hear the but we'd go forward from where we are. [applause] [inaudible conversations]
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pdf h'm. >> i and the former dean director of the center and also:professor of and this subject and i am pleased to
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be the moderator of this panel with the historical analysis provided by your panelists the professor of law at cornell in both the
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clinton and the obama administration and then to work in the private sector at the international law firm also chairman of the board for stanford law school and the vice chair. and also as a senior fellow for the did you w. laugh and graduating from university of snyder dame. and then carry retired recently as general counsel to the u.s. house of representatives where he served more than 20 years.
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strictly on of non-partisan basis. to participate in a significant number of high-profile cases with the branches of the federal government as the of the council to work extensively so with those cases we talk about today. so kerrey will go second emmy will hear from david and then we will hear from a specialist in american public laugh from allied division of the congressional research service. to specialize in areas of constitutional law administrative law. but then the author of
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journal articles and has testified numerous times and then he retired 2008 and then has consulting projects including engagement by the constitution with congressional oversight. with the principles and practices of the inquiries published 2009. and the class will be familiar with them because we assign his book is required reading. with the five-to-10 minute overview with that current system whether it needs reform. and then with the interactive discussion.
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>> thanks for you for showing up. the lighthouse with the disputes of access to information someone to frame the question something like what do we do cannot come to an agreement. and negative you made notice so perhaps the away that i could provide day handled on that was to get a historical background. we've heard a lot about controversies the fasten
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various investigation one the gripping device of parts. but those of you but it was the second bank of the united states. after the supreme court opposes that. and he does this not only by veto but before that and then removes the federal funds to be bankrupt again. this makes people not terribly happy. then look at a resolution of disapproval. to have a lengthy protest to
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mind his own business. the only way the senate can interfere is through the power of impeachment. impeach me or shut up. by the senate seven have bicycled a breach of privilege is essentially that is the same thing going back to history contempt with a more general contempt of parliament but that it was some outsider but the fact this and his response to jackson who is very much and to make this much more powerful.
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jackson responds with the memorial tempered -- tempered messages how does it in force the breach of privilege is? there are a couple of ways. but the breach finding itself wasn't enforcement then they are locked and with the hearts and with those anti-jacksonian. and they are simply trying to get publicity to stick. but they call on a long tradition. but the other way to enforce but they start refusing.
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but especially in the case or roger brooke taney at he would be responsible for restoring the funds and one month after an to find tim breach of privilege chief nominate secretary have the edge treasury. no delay. [laughter] just the next day it is done. [laughter] and and then to have said just assess a fee import. within the refuse to vote to and then look into john marshall but this time as
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she adjusted snowden bet that point they're finally confirmed written head of a half than ideal. but something happened one decade later. teefour . .


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