From the moment Donald Trump came into office, he made clear that he was only too eager to break the norms by which the government operates: norms of procedure, fair dealing, avoiding the appearance of corruption, and even reasonably mature behavior. In this he was following where his party had gone for some time, doing things that may have been appalling — such as refusing to consider a president’s Supreme Court nominee — but weren’t technically against the rules.
But what happens when a president says that even the rules don't apply to him?
That’s the question we’re confronted with right now, and I’m sorry to say that prospects for the next period in the Trump presidency look rather bleak. I’m going to focus on the conflict over Congress’s oversight role, but it’s in some ways a microcosm of this entire era, and just how far Trump will be able to go in debasing the American system.
As we’ve seen, the administration has decided to stonewall pretty much every congressional oversight demand for testimony or documents, whether they relate to Trump’s tax returns, the Russia scandal, or just about anything else.
On Tuesday, Trump told The Post that he won’t allow members of his administration to testify before Congress. On Wednesday, he said, “We’re fighting all the subpoenas.” In the latest case, the administration is simply refusing to comply with a subpoena for testimony on their move to add a citizenship question to the 2020 Census.
Is there anything we can do about this?
To get an answer, I spoke to Brianne Gorod, chief counsel of the Constitutional Accountability Center. She made clear that while there have been conflicts in the past between the president and Congress over particular subpoenas, we’re in new territory.
“What’s different here is the unprecedented level of obstruction,” Gorod says. “They’ve refused to comply with even run-of-the-mill congressional oversight, and that is very different than what we’ve seen in past administrations."
In the past, this is how it has usually happened: Congress issues a subpoena, and the executive branch objects. After a period of time — usually months — Congress files a lawsuit. Then the court tells the parties to negotiate a solution, which sometimes they do. If they can’t, eventually the court tells the executive branch to comply, except in some narrow circumstances usually involving executive privilege.
“What the courts have made clear repeatedly is that congressional oversight power is incredibly broad,” Gorod says.
But even if Congress almost always prevails, that process can literally take years. The trouble is that if the administration is as determined as this one is to abuse this process, it can basically drag things out endlessly across the board.
First, they’ll say they’re considering Congress’s request and analyzing their legal options, as they’re doing now with Trump’s tax returns, even though the law requiring their release couldn’t be clearer. Congress will finally file a lawsuit, but when the administration loses in district court, they appeal to circuit court, and then to the Supreme Court. On this and many other matters, the obvious goal will be to drag things out past November 2020.
There may be one bright spot here, however. The Trump administration’s obviously disingenuous game plan could give Democrats a way to demand quicker action from the courts. Now that the president has openly said he’s fighting every subpoena, he can’t claim that he has a valid objection to a particular subpoena.
“If the courts see that the administration is acting in bad faith, that makes it more likely that they will feel motivated to move the cases along quickly,” Gorod says.
Still, even if Congress issues a hundred subpoenas and the administration refuses them all, Democrats will have to go back to court to sue for compliance every time they get a new refusal.
Faced with this reality, Democrats’ options are limited.
The first thing they can do is realize that they’ll get nothing out of this administration. That means not waiting to file suit for months after issuing a subpoena, but doing it right away when it’s clear Trump has no intention of obeying the law. As Jeff Hauser and Eleanor Eagan argue, the Democrats’ “patience is seemingly endless, even though the administration’s members have failed to earn an ounce of leeway.” That should end now.
But even in the best-case scenario, we’re still talking about a process to get compliance with subpoenas that will take months. If everything works out well, Democrats might get some answers to some of the questions they have before next November. But Trump is plainly betting not just that he can drag things out past the election, but also that he can then say (as he now does with his taxes) that this was all litigated before and we should just stop talking about it.
Democrats could try to use their budget power to fight back, when October comes and Congress has to pass a new budget. But it's hard to know whether they'll have the stomach for another shutdown battle.
It’s enough to make you despair for our entire system. Everybody knows Congress has the right and the obligation to conduct oversight, but Trump has decided that our laws and our Constitution just don’t apply to him. He may well escape most of the accountability he deserves — at least for long enough to get past 2020. Which seems like all he cares about at the moment.