President Trump’s stonewalling is far worse than Richard M. Nixon’s ever was — more extensive, more outrageous and more unjustified than anything Nixon tried to pull.
The Post reports on the latest:
The White House’s top lawyer told the House Judiciary Committee chairman Wednesday that Congress has no right to a “do-over” of the special counsel’s investigation of President Trump and refused a broad demand for records and testimony from dozens of current and former White House staff.
White House Counsel Pat Cipollone’s letter to committee Chairman Jerrold Nadler (D-N.Y.) constitutes a sweeping rejection — not just of Nadler’s request for White House records, but of Congress’s standing to investigate Trump for possible obstruction of justice. In his letter, Cipollone repeated a claim the White House and Trump’s business have begun making: that Congress is not a law enforcement body and does not have a legitimate purpose to investigate the questions it is pursuing.
At a hearing on Wednesday, House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) argued that “for more than 200 years, Congress has exercised its power under Article I of the Constitution to conduct oversight of the executive branch. Congress’s ‘power of inquiry’ — recognized by the Supreme Court in case after case for nearly a century — is essential to our constitutional order.” He continued: “Without it, Congress would have no way to expose waste or misconduct, to inform itself for purposes of writing new legislation, or to ensure that public officials — including the President — remain accountable to the people they are supposed to serve.”
And now, Nadler argues:
Until recently, no President had ever stated that his plan, across the board, would be to fight any and all oversight from Congress. In declaring that he plans to “fight all the subpoenas,” President Trump has announced his hostility to our system of checks and balances, and is thereby seeking to hold himself above the law.
After the White House issued its blanket rejection of providing information, Nadler added in a written statement: “Today, the White House made the extraordinary demand that the Committee discontinue its inquiry into obstruction of justice, public corruption, and abuses of power, including as set forth in the Mueller Report. We will do no such thing."
Now, if the report submitted by special counsel Robert S. Mueller III truly exonerated Trump, and Attorney General William P. Barr truthfully represented the report, the president would not behave in this way. His efforts to impede Congress, just like his efforts to impede Mueller, reflect a consciousness of guilt. People who are innocent or have been completely exonerated do not go to ridiculous lengths to bottle up the facts.
Several additional points deserve emphasis.
First of all, it is a lie to say this is a “do-over.” Mueller isn’t redoing the investigation; he would be attempting to explain what he did to Congress. Congress has never heard from most of these witnesses. Congress has a right to gather additional information. Congress has the right to call witnesses and subpoena documents. The White House’s conduct is that of a royal court, not an executive branch.
The notion that Congress does not have the right to investigate matters plainly within its purview — and which are essential to determining whether impeachment hearings will be appropriate — flies in the face of the Constitution and our system of checks and balances. Even lawyer John Yoo, who has an expansive view of executive power, says such blanket rejection of Congress’s role is “unprecedented.”
Former federal prosecutor Renato Mariotti tells me, “The House has full power of impeachment under the Constitution and (Trump’s staffers] are withholding evidence of criminal wrongdoing by the president. If they can get away with doing that, the president — now and in the future — can break the law without fear of consequences.”
Likewise, constitutional scholar Laurence H. Tribe explains, “The White House Counsel is now taking the same astonishing position that Trump’s personal attorney took with Judge [Amit] Mehta yesterday — the position that the federal judge presiding over that subpoena hearing rightly found unbelievable and is bound to reject.”
Tribe notes, “As a strictly legal matter, the position is one the US Supreme Court decisively repudiated decades ago: it’s the position that the only permissible role of congressional investigations is to help in enacting legislation. If that were the law, then Congress could do nothing at all to oversee how well or badly — including how honesty or corruptly — its laws are being enforced and administered, to ferret out waste, fraud, and abuse by federal agencies or in the executive office of the president.” He concludes: “The administration’s argument comes down to Louis XIV’s ‘L’etat, c’est moi!’ ”
Second, making bogus, unsubstantiated arguments to Congress violates the code of ethics that all lawyers, especially prosecutors, must follow. The most basic rule of professional ethics is: “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.” Now, if these lawyers make spurious, bad-faith arguments in court, they may be subject to court rebuke or fines, or if they persist, held in contempt. Career lawyers should think twice before participating in disputes with Congress — whether in court or not — that are not based on good faith analysis of the law and facts.
Third, this is above all else a stalling tactic designed to prevent all of this from coming out before the election. Former federal prosecutor Mimi Rocah observes, “This isn’t sustainable as a real legal position, especially where their claim is that he can’t be indicted and also that Congress can’t do its job of legitimate oversight and investigation. I think it will ultimately fail in the courts because any judge tethered to the rule of law will reject it.” Rocah, nevertheless, is concerned “it will serve to delay things which may be the only goal here.”
Fortunately, one federal court has already expedited a case involving Trump’s financial documents. Congress should proceed briskly to federal court to obtain all evidence it deems necessary. The federal courts have an enormous responsibility in this instance — to preserve the structure of our Constitution, to compel Trump to abide by it and to rule with dispatch so Congress and the voters can have all the information they require in a timely manner.
Finally, Trump is fighting a losing battle with public opinion. A poll recently conducted by Navigator Research finds that "a majority (56%) believe the report revealed President Trump engaged in wrongdoing, while only 21% believe he was totally exonerated (another 23% don’t know). Even among Republicans, of whom 86% approve of the president’s job performance, just 44% believe that Trump was exonerated.” In addition, Americans trust Congress (46 percent) more than Trump (33 percent) when it comes to the rule of law. And, finally: “By 6 points (48% to 42%), Americans continue to be more concerned that the Trump administration will get away with corruption and unethical behavior more so than Democrats going too far in oversight.”
So the public is seeing through the president’s “exoneration” claims. It’s now incumbent on Congress, the voters and the courts to end Trump’s all-out assault on the Constitution.