Members Only | April 25, 2019 | Reading Time: 4 minutes

Systemic Presidential Lawlessness

Trump plans on “fighting all the subpoenas." What now?

The president said Wednesday that he’s set on “fighting all the subpoenas” being issued by various House committees. Donald Trump said the subpoenas were “ridiculous” and grossly partisan. (He has in the past called them “presidential harassment.”) Trump said that he’d go to the courts to block testimony from former and current White House staff. He said the House Democrats should get back to work.

Well, they are getting back to work. Empowering the Democrats to apply checks and balances vis-a-vis the executive was the engine powering their takeover of the House last November. Even some Republican voters who otherwise prefer a Republican president wished for a Democratic counterweight to Trump’s obvious excesses.

Moreover, the US Constitution is clear about which branch of the government is the highest (the Congress) and which branch conducts oversight over the second branch. Constitutionally speaking, the House Democrats can ask to hear from anybody for any reason, and every person subject to the law, including the executive, is supposed to comply. That’s what the framers intended. That’s what voters last year intended.

To that, Trump is saying nope.

If the Mueller report did not make clear that this president acts unlawfully, his conduct this week vis-a-vis the Congress surely does.

There had been a trickle of subpoenas before the US Justice Department released last week a redacted version of Robert’s Mueller’s report. Afterward, though, the trickle grew into a rolling river. The Democrats want to hear testimony from the official who gave top-secret security clearance to Jared Kushner, Trump’s son-in-law; from former White House counsel Don McGahn; and from senior White House advisor Stephen Miller. And they have demanded to see copies of Trump’s federal tax returns.

The administration has blocked each of these requests, cutting off access to people, resources and information that the House needs to fulfill the wishes of the American people and its constitutional role as provider of government oversight of the executive. (In the case of Trump’s tax returns, the treasury secretary seems to be in violation of federal law; he also appears to have been in consultation with the White House regarding the House Democrats’ request for Trump’s tax returns, which is illegal.)

It would be one thing if Trump were invoking privilege, but that does not seem to be the case. Even if that were the case, what kind of privilege is it when the executive says “we’re fighting all the subpoenas”? Privilege is meant to conceal information vital to national security. Even if Stephen Miller knows things the public shouldn’t, that doesn’t mean Trump should block his testimony. It means he should work out with the Congress what Miller can and can’t say. Trump isn’t even faking a willingness to work with lawmakers. He’s just saying nope. If the Robert Mueller report did not make clear that this president acts unlawfully, his conduct vis-a-vis the Congress surely does.

In a real sense, the president is obstructing again, only instead of obstructing the prosecution of justice, as when he fired James Comey, as when he told people to lie for him, it’s obstruction of the US Constitution, something that should provoke the fire and fury of every elected Republican carrying around a pocket copy of the founding document. But the Republicans never really meant it when they accused President Barack Obama of executive overreach, and anyway, our current predicament is larger than Republican hypocrisy. It’s is about systemic presidential lawlessness.

What do you do when a populist demagogue who swore an oath to faithfully execute the laws of the land, and to preserve, protect and defend the Constitution, doesn’t?

One thing is sue. The Democrats are doing that in one way or another. (My favorite suit is led by US Sen. Dick Blumenthal of Connecticut. It accuses Trump of violating the Constitution’s Emoluments Clause, which bars presidents from accepting bribes.) But lawsuits take the conflict out of the political arena and it should stay there in my view. Yes, getting a federal judge to rule in your favor is much easier than a head-on constitutional collision, but this fight is what it is, and it’s very much worth having.

Two other tacks. The House Democrats can pressure people to comply with their subpoena requests by using their powers of criminal contempt and civil enforcement. Contempt is vote by the House, and punishable by a fine and a year in jail. But it requires the cooperation of the Justice Department. Civil enforcement means the courts. The president can invoke privilege in any case, and it’s back to the courts.

If he wants to, Trump can ask the US Supreme Court to hear claims against him. Lucky for him, the court has shown extreme deference. (Recall the abomination that is Trump’s “Muslim ban.”) If the president won’t cooperate, if the Justice Department won’t enforce, and if the courts don’t compel (altogether, a very big if), what can you do with a populist demagogue who swore to faithfully execute the law, and to preserve, protect and defend the Constitution, but doesn’t? Well, there’s only one thing.

Some Democrats hope that investigating the president will be enough. They hope that by exposing him to public scrutiny, they can avoid making the incredibly hard decision of whether to impeach him. All things considered, that might be true in the end. But given the obstruction we’re seeing this week, that decision may be made for them.

If that’s the case, let’s hope they have the courage of their convictions.

—John Stoehr