The Washington PostDemocracy Dies in Darkness

Opinion The White House takes another step toward putting Trump beyond accountability

(AP Photo/Gerald Herbert)

The White House just took another big step toward declaring any and all House oversight directed at President Trump and his administration entirely illegitimate. The Post reports:

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.

The letter from the White House counsel to Nadler is right here. One thing that’s revealing is how cavalierly it reaches the conclusion that the Judiciary Committee’s investigations don’t have a legitimate purpose.

For instance, the letter complains about Nadler’s decision to hold Attorney General William P. Barr in contempt of Congress, in retaliation for Barr’s defiance of a subpoena. That subpoena was for the full, unredacted Mueller report and its underlying materials. After insisting that this request was highly unreasonable, the White House counsel says:

Lost in the Committee’s legally indefensible rush to recommend a contempt citation is the reality that the Committee has not articulated any proper legislative purpose for pursuing inquiries that duplicate matters that were the subject of the Special Counsel’s inquiry. Congressional investigations are intended to obtain information to aid in evaluating potential legislation, not to harass political opponents or to pursue an unauthorized “do-over” of exhaustive law enforcement investigations conducted by the Department of Justice.

The first accusation here is that it’s not legitimate for Congress to “duplicate” matters covered by special counsel Robert S. Mueller III’s probe. In pursuance of this, the letter demands that the Judiciary Committee drop its investigation entirely into whether Trump obstructed justice, engaged in public corruption and abused his powers.

But this is absurd. As a Congressional Research Service report explains, one of the core functions of congressional oversight in the separation-of-powers scheme is to scrutinize the executive branch’s implementation of executive power as delegated by Congress. That’s exactly what the Judiciary Committee is doing.

What’s more, as Jonathan Chait notes, the claim that Congress cannot legitimately look into such questions — when placed alongside DOJ’s policy against indicting sitting presidents and Barr’s declaration that a president can close down DOJ investigations into himself for any reason whatsoever — in effect places Trump above accountability and the law.

Add to that Trump’s broader defiance of any and all oversight — the administration’s alleged breaking of the law in refusing to turn over Trump’s tax returns and Trump’s vow to fight “all” subpoenas — and the effort to place Trump beyond accountability becomes even more sweeping.

Beyond all this, Congress would be derelict if it did not try to scrutinize the underpinnings of the Mueller report, simply as a matter of basic oversight, since the Mueller investigation was run out of the Justice Department.

The White House’s second accusation is that the Judiciary Committee didn’t articulate any proper legislative purpose in seeking those materials.

But the Judiciary Committee absolutely did articulate such a purpose — a number of them, in fact. Its memo setting forth the reasons for holding Barr in contempt provided the following rationales for its investigation:

The purposes of this investigation include: 1) investigating and exposing any possible malfeasance, abuse of power, corruption, obstruction of justice, or other misconduct on the part of the President or other members of his Administration; 2) considering whether the conduct uncovered may warrant amending or creating new federal authorities, including among other things, relating to election security, campaign finance, misuse of electronic data, and the types of obstructive conduct that the Mueller Report describes; and 3) considering whether any of the conduct described in the Special Counsel’s Report warrants the Committee in taking any further steps under Congress’ Article I powers. That includes whether to approve articles of impeachment with respect to the President or any other Administration official, as well as the consideration of other steps such as censure or issuing criminal, civil or administrative referrals.

In other words, the legislative purposes of this investigation are to determine whether Mueller’s findings suggest a need for new election security and/or campaign finance protections, or institutional reforms designed to prevent future abuses of power of the sort documented by Mueller; and — wait for it — to determine whether to impeach the president. It’s plainly obvious that the full, unredacted report and underlying materials would assist Congress in such judgments.

Is the White House argument really that these are not legitimate legislative purposes?

The claim is that, because Congress is covering ground Mueller did, it has undertaken an illegitimate effort to retry criminal matters — a “do over.” But Congress isn’t retrying criminal matters. It’s doing its own independent oversight of Mueller’s investigation (which, again, was run out the Justice Department) and determining whether that investigation’s findings merit legislative responses, impeachment included.

The White House’s logic in effect would neuter any such congressional oversight role here entirely.

Speaking of impeachment, some legal experts have told this blog that, as a legislative purpose, impeachment might be the most unassailable of all legal bases for compelling cooperation by the White House. And so, by declaring all these matters beyond the legitimate reach of Congress, which will likely force this battle into protracted court standoffs, the White House appears to be buttressing the incentive for Democrats to go ahead and launch an impeachment inquiry.

Read more:

Jennifer Rubin: Voters should see Trump’s contemptuous conduct for what it is: evidence of guilt

Harry Litman: William Barr is making Trump’s obsession his own

Dana Milbank: Trump’s not claiming executive power. He’s going for divine right.