President Trump and the House Judiciary Committee are locked in a game of constitutional chicken over executive privilege in which neither appears willing to veer away. Both the White House and Democratic congressional leadership seem eager for litigation. But in standing up against Trump’s far-reaching claims, the House risks suffering a permanent defeat that could leave the presidency even stronger.
The House committee seeks the full, unredacted report by special counsel Robert S. Mueller III into Russian interference in the 2016 campaign, as well as all the underlying investigative files, which contains interviews, evidence and internal memorandums. Attorney General William P. Barr refused to release the parts of the report involving grand jury information (whose release is prohibited by the federal rules of criminal procedure), but he has made portions of the report containing classified information, involving ongoing investigations or addressing peripheral figures available to members of the committee. Barr asked for more time to review the request for millions of pages of investigatory files, but the committee moved swiftly to escalate the conflict: It voted Wednesday along party lines to hold Barr in contempt. “We’ve talked for a long time about approaching a constitutional crisis — we are now in it. We are now in a constitutional crisis,” said Rep. Jerrold Nadler (D-N.Y.), the panel’s chairman. Trump quickly responded. Declaring Nadler’s decision “unlawful and reckless,” the White House has claimed executive privilege — for the first time in Trump’s presidency — over all of the documents requested by the House.
Trump’s response virtually guarantees that the conflict will end up in the federal courts, and it could easily go all the way to the Supreme Court.
This does not mean that either branch is wrong, only that they both have legitimate, conflicting constitutional interests. As the Supreme Court recognized in McGrain v. Daugherty, Congress has the right to conduct inquiries related either to existing or possible legislation and funding or oversight into government administration. “Each house of Congress has power,” the court found, “to compel a private individual to appear before it” and “give testimony needed to enable it efficiently to exercise a legislative function.” Nadler can legitimately seek to learn whether the Mueller probe properly enforced federal law and amounted to money well spent.
On the other side of the ledger, presidents have long claimed the right to keep confidential information that the executive branch needs to function effectively. In United States v. Nixon, the Supreme Court endorsed this view, at least in principle. Rooting the privilege in the separation of powers, the court suggested that all three branches had a right to maintain the confidentiality of communications. Writing for a unanimous court, Chief Justice Warren Burger accepted that the president’s commander in chief and foreign affairs authorities could demand an absolute privilege “to protect military, diplomatic, or sensitive national security secrets.”
But the court rejected Nixon’s claim to decide for himself whether the privilege applied. In the case of the Watergate burglars, the right to a fair trial prevailed over any claim to confidentiality in executive branch discussions. Rejecting the idea that President Richard Nixon could unilaterally decide whether the privilege properly existed, the court ordered the White House to hand over documents and tapes needed by the Watergate special counsel. Nixon cannot support Trump’s blanket refusal to comply with any and all congressional demands for information. It holds that the privilege applies only document-by-document, and witness-by-witness, after balancing the executive’s need for secrecy against the right of another branch for the information to perform its own constitutional responsibilities.
But the circumstances today may well produce a different result.
A congressional subpoena no longer inspires dread. If Congress issues a criminal citation for contempt, it requires the Justice Department to prosecute the case. Federal prosecutors won’t bring a criminal case against an attorney general who claims executive privilege. Indeed, the separation of powers demands that the executive branch refuse to enforce a criminal law — in this case, the one defining contempt of Congress — that violates a core power of the executive branch. Obama administration Attorney General Eric Holder proved this point when he refused to allow his own prosecution for withholding documents from Congress on the “fast and furious” gunrunning fiasco. Other means of enforcing a subpoena, such as sending out congressional officers to detain Barr, have a similarly low chance of success, especially when the House sergeant at arms encounters the attorney general’s security detail or even the attorney general himself.
And Nixon’s limits on executive privilege may not even apply here. Nixon upheld a defendant’s constitutional right to gather evidence in his defense, even if held by the president. It did not address whether executive privilege would have to give way before a congressional inquiry where no individual rights were at stake. Even if the court were to find that Nixon applied, it might still expand executive privilege to include not just direct discussions between the president and his advisers but also a “deliberative process” privilege that protects much executive branch discussions. It could even expand executive privilege to protect law enforcement information, such as Mueller’s investigative files, critical to the president’s constitutional duty “to take care that the laws be faithfully executed.”
Worse still for the House, the judiciary may simply choose not to intervene. Although the lower courts have allowed Congress to enforce subpoenas through a civil action, the Supreme Court has never approved this effort to drag the judiciary into a fight between the other two branches. In a 1993 ruling, Nixon v. United States (a different Nixon, but he still lost), the court found that legal challenges to an impeachment raised “political questions” reserved to Congress, not the courts. It might similarly conclude that fights over executive information should be resolved through politics. Indeed, the Founders would have been surprised to find presidents and Congresses turning to judges to resolve their disputes. The framers expected the two branches to deploy their unique constitutional powers to struggle for political primacy. Congress can demand information; the president can refuse it; Congress can cut off funds for the Justice Department, refuse to enact legislation proposed by the White House, even shut down the government. The framers expected the separation of powers to operate on the principle that “ambition must be made to counteract ambition,” as James Madison explained in Federalist 51.
In past struggles over executive privilege, the two branches usually engaged in lengthy negotiations that led to the information sought being shared, but with certain conditions to protect executive branch interests. When Congress has issued subpoenas because of a breakdown in negotiations, that usually occurred several months later, triggering even more dealmaking. In the end, Congress can almost always get what it wants if it chooses to use its power of legislation and its control of the purse.
But by forgoing the slow process of political accommodation here, the House may be walking into a trap of its own making. It could rush into a confrontation that produces a Supreme Court decision validating even broader theories of executive privilege, or a more likely outcome where the courts withdraw from referring disputes between the president and Congress over oversight and secrecy. House Democrats’ rush for a short-term political victory may come at the expense of a long-term win for Trump — and for the presidency.