Trump-the-president has not abandoned his brass-knuckle litigation tactics honed as Trump-the-businessman. Even when it comes to the separation of powers.
Not only is he pushing back on congressional investigations of the executive branch—as is expected from any president who hails from a different political party than the majority in the House of Representatives—but he is enlisting the judicial branch to halt legislative oversight altogether.
Trump, Don. Jr., Eric, and Ivanka recently filed a lawsuit in the U.S. District Court for the Southern District of New York against Deutsche Bank and Capital One Financial Corporation. The Trumps seek a permanent injunction blocking the banks from complying with subpoenas from Congress. The Trump family alleges that “[t]he subpoenas were issued to harass President Donald J. Trump, to rummage through every aspect of his personal finances, his businesses, and the private information of the President and his family, and to ferret about for any material that might be used to cause him political damage.”
In his role as the chief executive of the United States of America, Trump is also flouting all subpoenas issued by House Democrats, and executive branch officials have refused to appear for hearings or interviews. Trump’s top law enforcement officer, Attorney General William Barr, has failed to comply with a congressional subpoena for the unredacted report of Special Counsel Robert Mueller, prompting talks of contempt of Congress.
A few legal takeaways here:
First: There is no express provision in the Constitution that gives Congress the power to investigate the executive branch. Like much of constitutional doctrine, the Supreme Court has interpreted the Constitution’s text to imply a power to investigate as part of Congress’s power to legislate under Article I. A party’s refusal to comply with congressional investigations is punishable by contempt. In the 1917 case Marshall v. Gordon, the Court explained that “in virtue of the grant of legislative authority there [was] a power implied to deal with contempt in so far as that authority was necessary to preserve and carry out the legislative authority given.” Presidents have tolerated congressional investigations of the executive branch since the beginning of the republic.
Second: Congressional investigations benefit the public in a number of ways. They inform Congress as to whether to take legislative action to address potential problems. After Watergate, for example, Congress passed a law authorizing what amounted to judicial appointment of an independent counsel to investigate presidents without threat of his or her immediate removal (that law later lapsed).
The current Congress’s investigations might prompt a law mandating public disclosure of presidential candidates’ tax returns, on the theory that transparency is a good thing and people who insist on confidentiality in that realm should apply for a different sort of job. Or Congress might decide that tighter accountability measures for security clearances are necessary for the sake of national security. Congressional investigations by a Democratic House of Representatives will also inform the public of what is happening in the executive branch following two years of virtually no oversight by the legislative branch whatsoever.
Ideally, of course, congressional investigations operate as a check against abuses of power or corruption in the White House—whether or not certain actions amount to violations of the criminal laws. If a sitting president cannot be indicted pursuant to DoJ policy, congressional oversight is the only way to identify and enforce boundaries around the massive institutional power of the U.S. presidency.
Third: To be sure, if used purely to inflict damage, congressional investigations are susceptible to abuse by a president’s political opponents. They are time-consuming, resource-intensive, and potentially embarrassing to a president—even if he did nothing wrong. The mere threat of congressional oversight can also have an untoward impact on a president’s legitimate policy agenda.
Presidents have a handful of weapons in their arsenal to fight back, including lobbing reciprocal political jabs from the bully pulpit, negotiating compromises outside the public eye, or claiming executive privilege to refuse disclosure of certain categories of information. (Note that executive privilege does not provide a blanket immunity, and it can be permanently waived—meaning it may be too late for the White House to stop former White House counsel Don McGahn from testifying again post-Mueller probe).
Let’s be clear, however: A president’s outright refusal to respect a coordinate branch of government is not okay in a system of separated powers, which the Framers designed—after all is said and done—in order to forestall an autocracy.
Fourth: The contempt power is only meaningful to the extent that it can be enforced—that is, there must be consequences for violations. Congress has three options here: It can rely on its own authority to imprison a non-compliant subpoena recipient, but this recourse is inconceivable even in these times of unprecedented norm-breaking. Congress can enlist DoJ to criminally prosecute contempt of Congress, but DoJ is headed by the president, so that effort is at least as inconceivable if the subpoena is directed at DoJ in the first place.
Finally, Congress can file a civil action in federal court. If a judge issues an order directing compliance with a congressional subpoena and the recipient still refuses to comply, then the violator can be held in contempt of court (in addition to contempt of Congress). Which means possible jail time. But a civil lawsuit is an attenuated and arduous path to accountability for congressional nose-thumbers.
The long and short of it is: Yes, Congress has investigative power and, yes, it can issue a contempt citation for ignoring a subpoena. But that subpoena isn’t worth much if it cannot be enforced.
Fifth: In a perfect world—or even in a relatively normal one—each of the three branches of government choose to respect the integrity of the system and their own institutions enough to play nice-nice with the coordinate branches. Not so these days. President Trump’s particularly acute hostility towards congressional (or any) accountability has left much of the infighting for the courts to resolve.
But that presents its own problems. Federal judges are not elected, so voters can’t throw them out of office for any reason. And if the Supreme Court grabs an issue and resolves it under the Constitution, that decision is largely set in stone—unless a future Supreme Court takes the extraordinary step of reversing that decision, or an amendment to the Constitution is ratified. Both remedies are highly improbable and even if they were to come to pass, would be long removed from the instigating incident.
Put another way, the Supreme Court is not required to apply the Constitution to a dispute that could be resolved another way. But if it does, there’s no turning back. For most of us, that’s a hard ultimatum to swallow, regardless of the choice we might be facing. For the sake of American democracy, let’s hope it’s the right one here.