The impending trial isn’t just a trial: It’s part of Congress’s role overseeing the activities of the executive branch. An impeachment trial occurs once in a blue moon, but congressional oversight happens every day and is a cornerstone of our democracy.
If Trump gets away with unprecedented obstinacy in the face of a legitimate congressional oversight request on an issue of monumental importance, then what can’t he — and his successors — get away with? If Congress cannot obtain highly relevant information in the impeachment context, where its powers should be at their zenith, then how can it do so in other circumstances?
The administration has responded with derision to the House’s investigation of its dealings with Ukraine all along. On Oct. 8, White House counsel Pat Cipollone wrote an astonishing letter announcing that the White House would not participate at all in what he termed a “constitutionally illegitimate” impeachment inquiry. The letter was so over-the-top that one law professor wondered whether “the White House counsel was sick the day they taught law at law school.”
The harangue was perplexing for an additional, obvious reason: Congress need not be pursuing an impeachment inquiry to solicit and receive information from the executive branch. Even if Cipollone were correct that the impeachment inquiry was somehow invalid, the congressional committees conducting the investigation would be entitled to obtain information as part of their normal authority to oversee the executive branch.
Yet Cipollone waved that away, insisting that because Congress had announced an impeachment inquiry, it had somehow forfeited its preexisting oversight authority. This is nonsense.
True to its word, the Trump administration has not turned over a single page of records to Congress, despite the numerous subpoenas issued to the White House, the Office of Management of Budget and the departments of State, Defense and Energy. The only documents that the administration has released voluntarily are the call memorandums regarding Trump’s two conversations with Ukrainian President Volodymyr Zelensky. The administration has, belatedly, produced documents in response to Freedom of Information Act requests from private entities — in essence, declaring that the people’s elected representatives are less entitled to receive information about the executive branch than random FOIA requesters.
Likewise, the White House tried to block all witnesses under its control from testifying, instructing current and former officials not to testify. Several did anyway, in some cases at apparent risk to their careers, but a full dozen complied with the president’s instructions and stayed away — most notably acting chief of staff Mick Mulvaney.
The outcome of such oversight clashes between Congress and the president depends in large part on norms, expectations and public pressure. Enforcing a subpoena against the executive branch isn’t easy: Courts are loath to get involved and prefer to allow the political branches to hash it out if possible. Litigation rarely produces a timely resolution. In the dispute over whether Congress was entitled to certain documents related to the Bureau of Alcohol, Tobacco, Firearms and Explosives’s Operation Fast and Furious, it took nearly four years before a district court ruled in 2016 that Congress was entitled to certain records. Likewise, the House Judiciary Committee’s attempt to enforce a subpoena for the testimony of former White House counsel Donald McGahn is unlikely to be resolved soon. McGahn and the Justice Department are appealing the district court’s decision that he lacks “absolute immunity” from testimony; even after that is decided, there will still be a question as to whether executive privilege shields McGahn from answering questions about anything other than information already disclosed in the Mueller report.
Indeed, the very availability of such enforcement lawsuits is uncertain. In both the Obama and Trump administrations, the Justice Department has taken the position that courts lack jurisdiction to consider lawsuits by Congress to enforce subpoenas against the executive branch, and the increasingly conservative Supreme Court — which has never taken up a case involving a congressional oversight dispute with the executive branch — might one day agree.
Congress has other tools in its toolbox, such as conditioning items on the president’s wish list (e.g., Senate confirmations and funding for programs) on compliance with oversight requests. But the effectiveness of such threats depends in no small part on the extent to which the public values what Congress is trying to do and approves of its efforts to play hardball.
If Trump is allowed to skate without any witnesses being called and without producing relevant documents, the Senate will be on record as not caring very much about White House stonewalling. As Americans become increasingly inured to the White House ignoring Congress, a future administration may face less pressure in the next showdown with Congress. While Trump would benefit now, the next beneficiary might be a Democratic president whom Republicans are trying to hold in check. Or it might be a reelected and emboldened Trump, with even less reason to heed Congress — a Frankenstein’s monster who has escaped the lab.
Obviously, Trump is not the first president to stiff-arm Congress — indeed, the argument that top aides are entitled to “absolute immunity” is not new. But his administration’s broad intransigence on a matter of such importance as the impeachment inquiry sets a high-water mark for disregarding Congress’s oversight authority.
It is remarkable that Congress, entrusted with the grave responsibility of determining whether to remove the president, is being denied crucial information. While Senate Republicans may not care about the consequences in this instance, the reverberations will echo. The high-profile impeachment trial represents their best opportunity to push back on the White House and make clear that any future administration that acts like this one will pay a political price.