Ongoing D.C. fight tests separations of powers
Subpoenas are flying. Lawsuits are multiplying. Democratic leaders claim the country is in the grip of a “constitutional crisis.” And President Trump is crying foul.
While it may sound like just the latest twist on Washington’s workaday partisan warfare, numerous legal experts and other scholars say the escalating conflict between House Democrats investigating the president and a defiant White House is entering uncharted territory.
The clash, these experts say, has the potential to redefine the balance of power between the executive and legislative branches, and upset the system of checks and balances that guard against any one branch amassing too much power. The snowballing spats ultimately could land in the lap of the Supreme Court, where a decision could alter the relationship between the other two branches of federal government.
“It’s not about Democrats and Republicans at various ends of Pennsylvania Avenue. It’s about protecting your and my liberty by limiting the concentration of power in any of the three branches,” said Kerry W. Kircher, former House counsel for the last Republican majority. “That’s the whole point of separation of power.”
American history is dotted with clashes between the executive and legislative branches of government over the limits of each other’s power. As recently as the Obama and Bush administrations, top officials were found in contempt for failing to comply with congressional subpoenas. In the ensuing legal wrangling, the courts ultimately reinforced precedent that Congress has fairly wide investigatory and oversight powers — even though this is not explicitly mentioned in the Constitution.
What pushes the current dispute beyond these previous episodes, scholars say, is the sheer breadth of Trump’s refusal to comply with congressional investigations.
House Judiciary Chairman Jerry Nadler said Wednesday the White House is obstructing more than 20 congressional investigations, refusing to provide information on topics ranging from the Affordable Care Act, to the administration’s policy on separating immigrant families, to Trump’s financial records.
“The real issue at hand is the size and scope of the rejection of congressional oversight. That to my mind does not have any precedent in American history,” said Jeffrey Engel, director of the Center for Presidential History at Southern Methodist University. The idea that the nation’s chief executive would say to Congress: “You have no oversight over me, and of my constitutional authority,” Engel said, would be “entirely anathema to the notion of constitutional government” created by the Founders.
The one possible exception, Engel added, was President Richard Nixon’s refusal to respond to subpoenas issued by the House Judiciary Committee in its Watergate investigation. That refusal became one of the articles of impeachment against him.
Of particular concern for Democrats has been the Trump’s administration’s stonewalling of their efforts to obtain the unredacted version of Special Counsel Robert Mueller’s report on Russian interference in the 2016 election, along with underlying documents and testimony from key players. The House Judiciary Committee voted along party lines to hold Attorney General William Barr in contempt of Congress for refusing to provide the documents, and the full House is preparing to follow suit. House Democrats also subpoenaed years of Trump’s financial records, including his tax returns.
Trump, his top officials, and personal lawyers contend the various congressional probes into his official conduct and personal finances are a partisan vendetta — not legitimate exercises of Congress’s constitutional power.
“We’re fighting all the subpoenas,” Trump declared in April. “These aren’t, like, impartial people. The Democrats are trying to win 2020.”
What’s more, Trump’s legal team has argued Congress doesn’t have authority to investigate crimes or corruption by the president, only to collect information for writing legislation.
“Congressional investigations are intended to obtain information to aid in evaluating potential legislation,” White House counsel Pat Cipollone wrote to Nadler, “not to harass political opponents or to pursue an unauthorized ‘do-over’ of exhaustive law enforcement investigations conducted by the Department of Justice.”
And in a court hearing in May over a House committee’s request for records from his longtime accountant, Trump lawyer William S. Consovoy also argued Congress cannot investigate possible corruption by a sitting president.
That prompted the incredulous federal judge to ask Consovoy if, by that logic, Congress was out of bounds in its Watergate oversight, which led Nixon to resign, and in Whitewater, which ultimately led to the impeachment of President Bill Clinton. (Consovoy sidestepped this in his response.)
The executive branch can exert specific objections to congressional requests, Kircher said, most notably executive privilege, as Trump did over the request for the unredacted Mueller material. But executive privilege is a very narrow exception, Kircher argued, limited essentially to communications between the president and his closest advisers.
There’s no consensus whether the country is, as Democrats claim, in a genuine constitutional crisis, given the ill-defined nature of the term. But many experts say they believe the country may be headed to one. Some say a true crisis would occur if the courts direct Trump to comply with congressional subpoenas, and he refuses. Others say if Trump’s power grab goes unchecked by Congress or the courts, it would trigger a crisis; or if the Supreme Court — with two Trump appointees — rules in the president’s favor by a 5-to-4 decision, it could call into question the court’s own legitimacy.
Regardless, observers say the stakes of the current battle are high, with Congress in danger of seeing its institutional power severely diminished.
Two of Congress’s primary functions are to oversee the other branches and decide how tax monies get spent.
“Both of those are under attack at the moment by the executive branch,” Kircher said: the first by the administration’s stonewalling of congressional inquiries; the second by Trump’s move to spend $8 billion on a wall at the southern US border without congressional authorization. (House Democrats are suing over that, too.)
“If Congress loses either of those, it is a vastly, vastly weakened institution,” said Kircher.
“I’ve always been a defender of presidential power, but this is a situation where the Trump administration has run amok,” said presidential historian Douglas Brinkley.
Laurence Tribe, a Harvard constitutional law professor and a political liberal, called Trump’s blanket refusals to comply with numerous subpoenas and other requests “completely unprecedented in the history of the United States.”
Trump’s legal argument that Congress has no power to probe corruption or crime by the president is “tantamount to the dictatorial proposition that, being president, Trump is completely beyond the reach of law,” said Tribe, who has consulted in a separate lawsuit filed by congressional Democrats that charges Trump’s private businesses violate the Constitution’s emoluments clause barring gifts or payments from foreign governments.
Tussles between the executive and legislative branches don’t usually end up in contempt charges and lawsuits, because the two sides need one another to get things done, “and tend to find a way to resolve their differences,” said Sarah Binder, an expert on Congress and a political science professor at George Washington University.
A presidential administration, she noted, usually has a well-defined policy agenda and anticipates needing Congress to get it enacted. But Trump doesn’t have much of a legislative agenda and Democrats don’t have total power over spending to use as leverage, all of which “limits Congress’s ability to fight back,” Binder said.
With few exceptions, congressional Republicans are siding with Trump. (On Saturday, GOP Representative Justin Amash tweeted that the redacted version of the Mueller report convinced him Trump “engaged in impeachable conduct.”) But an otherwise sharply divided Congress further weakens its ability to assert oversight authority.
In past major constitutional clashes, members of Congress from the president’s party pushed back against executive misconduct. Republican lawmakers eventually turned on Nixon and backed impeachment. When Franklin D. Roosevelt won reelection by a landslide in 1936 and proposed adding more justices to the Supreme Court, “it was the Democratic Party who told FDR that’s a bridge too far,” said Brinkley.
Given the current partisan resistance, House Speaker Nancy Pelosi continues to reject calls to initiate impeachment proceedings. So it may be up to the third branch of government — the courts — to referee the dispute. But legal experts say the fights may proceed slowly in the courts, and possibly leave key questions unresolved before the 2020 election. Indeed, many observers believe Trump is pursuing a legal strategy of delay.
“We’re at the beginning of a very lengthy and rather complicated and various process,” given the numerous prongs of the broader standoff, and the complexities embedded in each case, said Harvard law professor Charles Fried, who was solicitor general under President Ronald Reagan. The slowness of the legal process will likely work to Trump’s political favor, he said.
“The longer it drags out and the more technical it gets, the more the public loses patience and interest with it,” he said.
Sarah Binder of George Washington University said there’s another party who can help decide the separation of powers question at the heart of the current fight: voters.
Scholars will almost certainly over-interpret the coming “electoral reckoning,” she said, but if Trump were to lose in 2020, “it would certainly be interpreted as a rejection of this imperial president.” On the other hand, if he wins, she said, it may amount to “an electoral shrug, that sure, presidents can exert these powers and get away with it.”