November’s midterm election made a constitutional confrontation between the Democratic-controlled House and the Republican president seem inevitable. And the rising number of flash points over subpoenas from oversight committees to President Trump’s businesses and to administration officials may indeed launch a prolonged battle over how much authority Congress has to investigate the president and his administration.
But Trump, characteristically, seems to be taking the sort of fight most of his predecessors have had with the legislative branch and making the stakes far greater — and the possible damage far worse — than ever before.
The administration’s emerging position appears to be that Congress does not really have the power to investigate the president, at least not when one chamber is controlled by his political adversaries, even if whatever information it seeks might eventually be used in an impeachment proceeding. That’s a deeply disturbing argument, and one that, if successful, would tilt the separation of powers, perhaps irrevocably, toward the executive branch.
Several fights between the administration and the House seemed to boil over this past week. The Justice Department has said the official who oversees its civil rights division won’t give a deposition to a House committee investigating the administration’s plan to add a citizenship question to the 2020 Census. The White House blocked another official, who handles security clearances, from testifying before a different panel looking into that work. Treasury Secretary Steven Mnuchin has missed deadlines to provide Trump’s tax returns to the House Ways and Means Committee, which has requested them as permitted by statute; Mnuchin says he’ll decide next month whether to comply. Trump also sued the chairman of the House Oversight Committee (as well as his own accounting firm) to try to quash a subpoena the panel issued for financial information related to Trump’s businesses.
Some of this looks like a routine dispute — one for which it should be easy to predict the outcome. The Supreme Court has stressed for nearly a century that Congress possesses the “power of inquiry,” and one main form that power takes is the ability to compel participation with investigations of misconduct by the executive branch. What’s more, it is no crisis that at least some of the subpoenas are being resisted or challenged. Congress and the executive branch have tussled for as long as the legislative branch has issued subpoenas; an especially high-profile case from the mid-1980s involved Environmental Protection Agency administrator Anne Gorsuch, whose son Neil may soon be tasked with resolving such a dispute on the Supreme Court. Nor is it a crisis that some of the subpoenas may have been issued for (perish the thought) partisan purposes. That’s what happens in the political branches.
The real crisis is that what used to be a retail constitutional conflict has all the signs of becoming a wholesale one — with Trump telling reporters on Wednesday that “we’re fighting all the subpoenas.” Instead of following his predecessors’ lead and asserting case-specific objections to specific subpoenas (and complying with others), Trump’s approach, at least publicly, has been to attack the idea that any subpoena could be appropriate — in essence, to challenge Congress’s power of inquiry on its face.
Trump told The Washington Post this past week that he opposed present and former White House aides testifying before House committees investigating material covered in special counsel Robert S. Mueller III’s report. “I don’t want people testifying to a party, because that is what they’re doing if they do this,” he said.
There is no question that the power of inquiry has limits. As the Supreme Court explained in 1957, “No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress. Investigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.” Supporters of the president might point to this language as proof that any subpoena issued by the current House is invalid, because it’s clearly part of a “witch hunt” against Trump.
This argument doesn’t remotely follow. No one disputes that one of the most important tasks that the Constitution commits to Congress is the power to impeach and remove federal officers for “Treason, Bribery, or other high Crimes and Misdemeanors.” The very existence of that power is why the Justice Department has concluded, controversially, that a sitting president cannot be subjected to criminal indictment. On that view, uniquely among federal officials, the only mechanism for sanctioning a president who engages in misconduct is the one spelled out in the Constitution.
One of Congress’s “legitimate tasks,” therefore, is impeachment — and so the power of inquiry should extend to investigating whether impeachment is warranted on the facts of a particular case. Congress conducted such an inquiry before the impeachments of Presidents Andrew Johnson and Bill Clinton, and before adopting impeachment articles against President Richard Nixon. If the American people disagree with Congress’s decision to conduct such an investigation, or with the manner in which it does so, they can respond at the ballot box. As the Supreme Court held in 1993, a challenge to how the House impeaches (and the Senate removes) a federal officer is a “political question” that’s not generally subject to review by the courts, despite Trump’s claim on Wednesday that he would appeal impeachment to the high court.
Trump may instead be resorting to a preemptive strategy: seeking to undermine Congress’s power of inquiry, at least with respect to potential impeachment proceedings, before it can be used against him. If this argument is ultimately adopted by the courts despite precedent, it would radically shift the balance of powers in the federal government. The obvious — and intended — effect would be to make it harder for the legislature to remove a president who deserved such a sanction, but eroding the power of inquiry would make it harder for Congress to conduct meaningful oversight of the executive branch, period.
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