If you’re the president, checks and balances are a real hassle. For all the power you have, the courts can tell you that what you’ve done is unconstitutional, and Congress can go mucking around in your business with investigations and subpoenas.
Every president chafes at the constraints on their authority. But none has felt the same sense of aggrievement that Donald Trump does.
As the president looks ahead to the 2020 election, he sees himself bedeviled. House Democrats might not impeach him, but even if they don’t they’ll be aggressively investigating him and his administration. While previous presidents might have fought a subpoena here or there while arguing that the investigations were going overboard, Trump believes it is only proper that he be above the law.
So his White House has formulated a strategy that goes like this: Trump will insist that any attempt to hold him accountable for anything is illegitimate. The administration will simply refuse to comply with the law in order to protect him. It will count on the Supreme Court, now with a friendly 5-to-4 conservative majority, to validate his position. And even if the court doesn’t always do so, he can still win simply by running out the clock past next November.
Here’s how the Trump team is going about it:
- A White House whistleblower recently revealed that after career staff recommended denying security clearances to multiple Trump officials, including son-in-law Jared Kushner, the director of personnel security, Carl Kline, overruled the recommendations. In Kushner’s case, Trump personally demanded that his clearance be upgraded, over the objections of then-Chief of Staff John F. Kelly and intelligence officials. Naturally, congressional Democrats are eager to interview Kline to learn whether the security clearance process is being carried out properly, so they subpoenaed him to testify. But we now learn that Kline has been instructed by the White House not to show up for questioning by the House Oversight Committee.
- Trump just “sued his own accounting firm and the Democratic chairman of the House Oversight Committee" to “stop the firm from giving the committee details about Trump’s past financial dealings.” The lawsuit "seeks to upend decades of legal precedent that have upheld Congress’s right to investigate, arguing that his past personal dealings are irrelevant to the legislative branch’s fundamental job: writing bills.”
- The House Ways and Means Committee has demanded Trump’s tax returns, as it has a clear legal right to do. The Treasury Department has now missed the second deadline set by the committee’s chair, Rep. Richard E. Neal (D-Mass.), to turn over the returns. The administration’s apparent strategy is to simply refuse to comply and dare House Democrats to sue.
The common thread running through these moves is that their perpetrators plainly have no legal legs to stand on. You can’t refuse a congressional subpoena on a matter like the issuance of security clearances just because you find congressional oversight unpleasant. You can’t try to use lawsuits to quash Congress’s ability to investigate matters not strictly related to legislation; lawmakers do such investigations all the time.
As law professor Steve Vladeck put it, “I teach Federal Courts (a class that, among other things, focuses on different mechanisms for raising legal questions in court), and I can’t think of another example in which a sitting President sued members of Congress. Ever.”
And you can't decide that a law that says "the Secretary shall furnish such committee with any return or return information specified in such request" actually means "the Secretary shall furnish such committee with any return, except if it's Donald Trump's, because he really really doesn't want anybody to see it."
Trump revealed the broader strategy at work back in February, when at a news conference discussing his “emergency” declaration to build a border wall, he launched into a singsong recitation of how he though the matter would be resolved:
“We will have a national emergency, and we will then be sued, and they will sue us in the 9th Circuit, even though it shouldn’t be there, and we will possibly get a bad ruling, and then we’ll get another bad ruling, and then we’ll end up in the Supreme Court, and hopefully we’ll get a fair shake, and we’ll win in the Supreme Court.”
In other words, it doesn’t really matter whether I’m acting as though the rule of law doesn’t apply to me, because I have a backstop: the 5-to-4 conservative majority on the Supreme Court. No matter how ludicrous the legal arguments I make or how outrageous what I’m doing is, those guys will have my back.
And he may well be right. The court’s conservatives have shown again and again that when it comes to questions of executive authority and separation of powers, they apply a different set of legal principles when there’s a Republican in the White House than they do when a Democrat is president. And now, with the sometimes moderate Anthony M. Kennedy replaced by the longtime Republican activist Brett M. Kavanaugh, Trump can be more assured than ever that the court will be on his side.
But even if in the end the court finds the administration’s actions too offensive to the Constitution to stomach, Trump plainly believes he can get nearly the same outcome just by stonewalling for as long as possible. Take the case of the tax returns. The Treasury Department hasn’t actually refused to turn them over; department officials say that they’re having their lawyers examine the request, and they’ll be back in touch. At some later date. Eventually.
In the meantime, Neal hasn’t filed suit to force the administration to comply with the law. The longer he waits, the closer we get to next November. If and when he does sue, they’ll use every delaying tactic they can come up with so that even if the Supreme Court doesn’t rule in their favor, Trump’s returns will be released only after the election is over, by which time, they hope, he’ll be reelected and it won’t matter.
And let’s not forget: All of this is in the service of covering up Trump’s personal misdeeds. That is the single goal to which the entire Republican Party has now devoted itself. And Republicans will do almost anything to serve that end.