Recently, the U.S. Court of Appeals for the D.C. Circuit dismissed a House of Representatives’ lawsuit seeking testimony from former White House counsel Donald McGahn about President Trump’s alleged obstruction of then-special counsel Robert S. Mueller III’s inquiry into Russian election interference. The House is almost certain to appeal this latest — though far from final — barrier to meaningful congressional oversight of the executive branch.
Since Democrats took control of the House in 2019, Trump has refused to cooperate with oversight requests for documents or testimony on matters of political significance or potential embarrassment. Consistent with Trump’s maximalist view of presidential prerogative, McGahn claimed he enjoys absolute immunity from Congress’s subpoena for his testimony. In case after case, Trump’s Department of Justice has offered legal arguments that would turn congressional oversight into a matter of presidential courtesy rather than constitutional congressional power.
While presidents have long resisted congressional demands, this absolute refusal to comply is a new stage in the long-term decline of what scholars call the “accommodations process.”
The accommodations process depends on threats
For over two centuries, the executive branch and its congressional overseers negotiated over sharing information, with each arguing for its own interests. Congress had institutional tools to extract information, including requests that the executive branch voluntarily deliver briefings and documents to members and their staffs; demands for transcribed interviews of executive officials by congressional staffers; and senior officials’ routine appearances at public hearings. Congressional investigators only issued subpoenas when these tools failed to deliver necessary information.
For the most part, both sides understood and worked within this system. Often these negotiations delivered at least some accommodation, as the two branches required one another’s cooperation to function, and each faced potential political costs (for congressional overreach or an executive seeming to have something to hide). But both sides knew that in the most extreme cases, Congress could — and sometimes would — find intractable witnesses in contempt and jail them. Congress also could use civil and criminal contempt statutes toward the same end. But from the Constitution’s adoption until the late 20th century, both sides compromised to avoid going to court. Because they did not know which side would win, each feared setting a damaging precedent.
That threat has steadily lost its power
That’s changed over the past several decades. Beginning in 1984, the executive branch has been increasingly successful at preventing Congress from enforcing its own subpoenas. The steady growth in executive power vis-a-vis Congress accelerated in 2012, when Congress held Attorney General Eric Holder in criminal contempt for failure to respond to its document subpoenas and he declined to indict himself for the violation. Congress then initiated civil contempt litigation, which lasted seven years — well past the Obama administration’s end.
Congress learned a lesson about the efficacy of civil contempt litigation in the process, leading it not to sue to enforce unanswered subpoenas even in its 2019 impeachment inquiry. As the nonpartisan Congressional Research Service concluded in 2019, “in many situations Congress likely will not be able to rely on the executive branch to effectively enforce subpoenas directed at executive branch officials, nor will reliance on the civil enforcement of subpoenas through the judicial branch always result in a prompt resolution of the dispute.”
Now that the subpoena threat has been diluted, the executive branch has little incentive to comply with Congress’s demands.
Congress still has options
What options might Congress explore to regain oversight power? For starters, it might use the “power of the purse” — its control of spending — to encourage cooperation. Congress has underway a bill to take back some of the spending power ceded in recent years. Congress could threaten to cut off funding for particular agencies, offices or programs until its oversight demands are met.
But this threat is only credible if both congressional houses and parties can agree to use it. Congress doesn’t want to cut off funding for work in the public interest. And since Congress has steadily changed its appropriations process, funding agencies through “continuing resolutions” maintaining existing funding levels rather than passing a budget and appropriations bills, targeted funding cuts have become more difficult to achieve.
Another option would be for Congress to continue asserting its position in court. In the recent Mazars lawsuit over whether Trump was compelled to give Congress his financial information, both the House and the president took extreme positions, arguing for nearly unchecked power on their own side of the fight. The Supreme Court rejected both, leaving plenty of room for future courts to define the scope of Congress’s oversight authority. While the House lost the latest round in the McGahn case, the panel was divided — and so the opinion may not survive further review by the en banc D.C. Circuit or the Supreme Court.
Finally, members of Congress from both parties have proposed reforms that would fast-track litigation between Congress and the executive branch. However, giving power to the judicial branch to decide what Congress can and can’t exact from the executive branch only shifts rather than reclaims a power that the Constitution made inherent in Congress.
Finally, some members of Congress have suggested that Congress could revive its power of inherent contempt, the long dormant power to punish those who refuse to provide the information Congress needs and to check the executive without relying on a statute signed by a president or a judgment enforced by a court. Some observers recommend passing bills enabling Congress itself to try, convict and fine executive branch officials to reinvigorate Congress’s enforcement power. Congress also could pass a law empowering itself to appoint outside counsel to prosecute those trials, allowing it to bypass the Department of Justice. While collecting fines resulting from these trials might still require going to court, the court’s only role would be to enforce Congress’s decisions in a particular case. And in the extreme case resulting in imprisonment, the courts would retain the power to review any detention through a writ of habeas corpus.
These ideas lay the burden for fixing oversight at Congress’s door, where it should be. But our constitutional design of checks and balances suggests that future presidents should give searching review to ratcheting up their own prerogatives and the resulting imbalance of power in matters of congressional oversight.
Liz Hempowicz is the Project On Government Oversight’s director of public policy, where she develops and advances policy solutions to combat corruption and to promote openness and accountability in government.
Anne Tindall is counsel at Protect Democracy. She most recently served as assistant general counsel for litigation and oversight at the U.S. Consumer Financial Protection Bureau, and before that as oversight counsel for the House Committee on Energy and Commerce under Chairman Henry Waxman.