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By David G. Savage and Timothy M. Phelps, Tribune Washington Bureau

WASHINGTON — The Supreme Court ruled Thursday that President Barack Obama exceeded his power under the Constitution by filling three federal positions when the Senate was on a brief break, but justices upheld the right of the president to make recess appointments during longer breaks.

While the president is authorized to fill vacancies while the Senate is on recess, the justices decided in a 9-0 ruling that the Senate was not on a true recess in January 2012 when Obama filled three seats on the National Labor Relations Board.

The decision is a rebuke to the president, but its short-term impact on Obama could be muted because last year the Democratic-controlled Senate scrapped a long-standing filibuster rule that had allowed the current Republican minority to block a vote on many of his nominees.
Before that change was made, Republicans effectively blocked many of Obama appointments, prompting the president to turn to recess appointments as a way to fill vacant posts.

The limited scope of the court’s ruling was criticized by Justice Antonin Scalia, who agreed with the majority but said the court should have gone much further.

Justice Anthony Kennedy and the court’s most liberal members also signed onto the opinion, written by Justice Stephen Breyer.

“A Senate recess that is so short that it does not require the consent of the House is not long enough to trigger the President’s recess appointment power,” Breyer wrote.

But the court was split 5-4 on the broader question of whether the modern presidency should retain the right to make recess appointments.
Scalia, in an opinion that read more like a dissent than a concurrence, blasted the Breyer opinion from the bench, a highly unusual move.
“The Court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates,” Scalia wrote.

“To reach that result, the majority casts aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best.”

He was joined by fellow conservatives Chief Justice John G. Roberts, Jr., and Justices Clarence Thomas and Samuel A. Alito Jr.

But Breyer wrote for the court that a broader reading of the recess clause “is reinforced by centuries of history, which we are hesitant to disturb. We thus hold that the Constitution empowers the President to fill any existing vacancy during any recess — intra-session or inter-session — of sufficient length.”

He indicated that a sufficient length might be a break of 11 days.

The Senate subsequently confirmed appointments to the three posts, so the decision will not displace any officials. If Republicans succeed in taking back control of the Senate this fall, the court’s ruling could carry more weight next year.

The ruling will bind future presidents as well, limiting the chief executive’s authority to go around the Senate. In the early years of the nation, presidents used “recess” appointments because members of Congress left the capital for several months at a time.

In their absence, the chief executive could make temporary appointments to the government. In more recent times, presidents from Ronald Reagan to Barack Obama have used temporary appointment power to bypass a Senate that was slow to confirm his nominees.

This story has been updated

AFP Photo/Karen Bleier

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Former President Donald Trump, left, and former White House counsel Pat Cipollone

On Wednesday evening the House Select Committee investigating the Trump coup plot issued a subpoena to former White House counsel Pat Cipollone, following blockbuster testimony from former White House aide Cassidy Hutchinson, who said the lawyer had warned of potential criminal activity by former President Donald Trump and his aides.

The committee summons to Cipollone followed long negotiations over his possible appearance and increasing pressure on him to come forward as Hutchinson did. Committee members expect the former counsel’s testimony to advance their investigation, owing to his knowledge of the former president's actions before, during and after the January 6, 2021 attack on the U.S. Capitol.

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Mark Meadows

Donald Trump’s White House Chief of Staff Mark Meadows wanted a presidential pardon. He had facilitated key stages of Trump’s attempted 2020 coup, linking the insurrectionists to the highest reaches of the White House and Congress.

But ultimately, Meadows failed to deliver what Trump most wanted, which was convincing others in government to overturn the 2020 election. And then his subordinates, White House security staff, thwarted Trump’s plan to march with a mob into the Capitol.

Meadows’ role has become clearer with each January 6 hearing. Earlier hearings traced how his attempted Justice Department takeover failed. The fake Electoral College slates that Meadows had pushed were not accepted by Congress. The calls by Trump to state officials that he had orchestrated to “find votes” did not work. Nor could Meadows convince Vice-President Mike Pence to ignore the official Electoral College results and count pro-Trump forgeries.

And as January 6 approached and the insurrection began, new and riveting details emerged about Meadow’s pivotal role at the eye of this storm, according to testimony on Tuesday by his top White House aide, Cassidy Hutchinson.

Meadows had been repeatedly told that threats of violence were real. Yet he repeatedly ignored calls from the Secret Service, Capitol police, White House lawyers and military chiefs to protect the Capitol, Hutchinson told the committee under oath. And then Meadows, or, at least White House staff under him, failed Trump a final time – although in a surprising way.

After Trump told supporters at a January 6 rally that he would walk with them to the Capitol, Meadows’ staff, which oversaw Trump’s transportation, refused to drive him there. Trump was furious. He grabbed at the limousine’s steering wheel. He assaulted the Secret Service deputy, who was in the car, and had told Trump that it was not safe to go, Hutchinson testified.

“He said, ‘I’m the f-ing president. Take me up to the Capitol now,’” she said, describing what was told to her a short while later by those in the limousine. And Trump blamed Meadows.

“Later in the day, it had been relayed to me via Mark that the president wasn’t happy that Bobby [Engel, the driver] didn’t pull it off for him, and that Mark didn’t work hard enough to get the movement on the books [Trump’s schedule].”

Hutchinson’s testimony was the latest revelations to emerge from hearings that have traced in great detail how Trump and his allies plotted and intended to overturn the election. Her eye-witness account provided an unprecedented view of a raging president.

Hutchinson’s testimony was compared to John Dean, the star witness of the Watergate hearings a half-century ago that led to the resignation of President Richard Nixon for his aides’ efforts to spy on and smear Democrats during the 1972 presidential campaign.

“She IS the John Dean of the hearings,” tweeted the Brooking Institution’s Norman Eisen, who has written legal analyses on prosecuting Trump. “Trump fighting with his security, throwing plates at the wall, but above all the WH knowing that violence was coming on 1/6. The plates & the fighting are not crimes, but they will color the prosecution devastatingly.”

Meadows’ presence has hovered over the coup plot and insurrection. Though he has refused to testify before the January 6 committee, his pivotal role increasingly has come into view.

Under oath, Hutchinson described links between Meadows and communication channels to the armed mob that had assembled. She was backstage at the Trump’s midday January 6 rally and described Trump’s anger that the crowd was not big enough. The Secret Service told him that many people were armed and did not want to go through security and give up their weapons.

Trump, she recounted, said “something to the effect of, ‘I don’t f-ing care that they have weapons. They’re not here to hurt me. Take the mags [metal detectors] away. Let the people in. They can march to the Capitol from here.

As the day progressed and the Capitol was breached, Hutchison described the scene at the White House from her cubicle outside the Oval Office. She repeatedly went into Meadows’ office, where he had isolated himself. When Secret Service officials urged her to get Meadows to urge Trump to tell his supporters to stand down and leave, he sat listless.

“He [Meadows] needs to snap out of it,” she said that she told others who pressed her to get Meadows to act. Later, she heard Meadows repeatedly tell other White House officials that Trump “doesn’t think they [insurrectionists] are doing anything wrong.” Trump said Pence deserved to be hung as a traitor, she said.

Immediately after January 6, Hutchinson said that Trump’s cabinet discussed invoking the 25th Amendment to remove a sitting president but did not do so. She also said that Meadows sought a pardon for his January 6-related actions.

Today, Meadows is championing many of the same election falsehoods that he pushed for Trump as a senior partner at the Conservative Partnership Institute (CPI), a right-wing think tank whose 2021 annual report boasts of “changing the way conservatives fight.”

His colleagues include Cleta Mitchell, a lawyer who pushed for Trump to use every means to overturn the election and leads CPI’s “election integrity network,” and other Republicans who have been attacking elections as illegitimate where their candidates lose.

Hutchinson’s testimony may impede Meadows’ future political role, as it exposes him to possible criminal prosecution. But the election-denying movement that he nurtured has not gone away. CPI said it is targeting elections in national battleground states for 2022’s midterms, including Arizona, Georgia, Florida, Michigan, and Pennsylvania.

Trump did not give Meadows a pardon. But in July 2021, Trump’s “Save America” PAC gave CPI $1 million.

Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, The American Prospect, and many others.

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