House Democrats are grappling with how to respond to President Trump’s blanket resistance to cooperating with their investigations — defiance that legal experts say could upend the nation’s fundamental principle of checks and balances.
House Oversight and Reform Committee Chairman Elijah E. Cummings (D-Md.) announced plans on Tuesday to hold one Trump administration official who defied a subpoena in contempt of Congress and has threatened a second with the same punishment if he failed to show for a Thursday deposition. And with Trump promising to bar all former and current aides from testifying, the House began confronting the possibility of issuing multiple contempt citations and initiating civil litigation to defend its oversight role.
“This is a massive, unprecedented, and growing pattern of obstruction,” Cummings said in a statement Wednesday.
Yet Democratic leaders also have been just as adamant that their investigations of the president not overshadow their legislative agenda, which they view as vital to holding their House majority in the 2020 election. While lawmakers are furious with the White House, Democratic leaders are trying to come up with a plan enabling investigators to push back on Trump without totally subverting their proposals on health care, infrastructure and the economy.
In that sense, Trump’s no-cooperation stance has created a conundrum for House Speaker Nancy Pelosi (D-Calif.). Democrats have worried about appearing overzealous in their probes of the president. Trump, however, may leave Democrats no choice but to declare all-out war on his strategy.
“We’re fighting all the subpoenas,” Trump told reporters Wednesday, blaming politics for their probes. “The Democrats are trying to win 2020. . . . And they’re not going to win against me.”
Trump’s comments came a day after the Treasury Department ignored a House Ways and Means Committee deadline for Trump’s tax returns, and the White House moved to prevent an administration official from showing up for subpoenaed testimony on security clearances. Trump officials also announced that they would bar former White House counsel Donald McGahn, a central witness on potential obstruction by Trump, from testifying before the House Judiciary Committee about the president’s demand that he move to fire special counsel Robert S. Mueller III.
Separately, Trump’s private-sector attorneys have filed a lawsuit against the Oversight Committee and Trump’s own accounting firm after the panel subpoenaed his financial records. And the Justice Department announced Wednesday that Attorney General William P. Barr instructed one of its top officials to ignore a subpoenaed deposition.
Rep. Gerald E. Connolly (D-Va.), a member of the Oversight Committee, said Trump’s moves are “triggering a constitutional crisis” and argued that the White House posture shouldn’t just concern Democrats but Republicans as well. The House, he said, should revisit the idea of instructing the sergeant at arms to find and jail those who defy subpoenas until they relent, a step Congress hasn’t taken since the 1870s.
“If [Trump] were to prevail in this fight, then you will permanently debase the role of the legislative branch of government and fundamentally alter the constitutional framework,” Connolly said. “We cannot let that happen. . . . The consequences would radically alter the balance of power in our government.”
Rep. Jerrold Nadler (D-N.Y.), chairman of the House Judiciary Committee, recently suggested fining Trump officials who refused to comply with subpoenas — even jailing them, according to Bloomberg News. On a Monday night call with fellow Democrats, Rep. Jared Huffman (D-Calif.) suggested that the House should impeach the IRS commissioner for refusing to provide Trump’s tax returns, information Congress has traditionally obtained upon request under the law.
“The idea that the IRS commissioner would instead follow the direction of Donald Trump’s legal team instead of statutory directive just can’t stand,” Huffman said in an interview Wednesday. Impeachment of the heads of departments and agencies, he said, “is the constitutional backstop when executive branch officials refuse to follow the law. . . . It has to be in the conversation at some point if they continue to act like arms of the Trump legal team.”
Democratic aides downplayed the possibility of either happening, but such comments underscore the frustration in Congress. Democrats expressed optimism that they will win on the merits as their issues head to the courts, but Trump’s strategy creates political pitfalls and the prospect of delays in the legal system.
The aides said Trump’s defiance will force them to prioritize which cases are the strongest and most critical to their investigations. That was a topic of discussion as the House counsel and aides conferred Wednesday, and considered how to respond to the Trump administration’s refusal to comply with subpoenas.
House Democrats have also discussed the idea of tying federal funding to requirements that department and agency heads comply with their investigations. They’ve also considered finding ways to enforce an obscure law that bars officials from being paid if they hinder another federal employee from cooperating with Congress.
Anticipating potential showdowns with Trump, Pelosi backed a rule change at the start of the Congress that would enable the Bipartisan Legal Advisory Group — a five-member panel of Pelosi, Majority Leader Steny H. Hoyer (D-Md.), Majority Whip James E. Clyburn (D-S.C.), Minority Leader Kevin McCarthy (R-Calif.) and Minority Whip Steve Scalise (R-La.) — to approve taking a civil contempt charge to court, according to a congressional aide who spoke on the condition of anonymity to discuss private deliberations.
Traditionally, the House votes on a resolution holding someone in contempt before the counsel takes the matter to court. But leadership realized they could have multiple instances of contempt, and sought a way to streamline the process. Under the new rule, only two members of the advisory group would have to approve such court action.
The change would allow Democrats to keep the focus on legislation rather than having to vote constantly to hold Trump officials in contempt — a likely occurrence if the administration sticks with its strategy.
However, Democrats may decide to bring some contempt citations to the full House to force Republicans to cast votes. The GOP, for example, backed the subpoena for John Gore, a deputy assistant attorney general in the Justice Department’s civil rights division, who is expected to skip his subpoenaed deposition Thursday on the administration’s plan to add a citizenship question to the 2020 Census.
Additionally, Pelosi worked to change House rules to strengthen committees. She backed a change to make it explicit that the Oversight Committee has jurisdiction over the White House, for example, when that was previously less clear.
Richard Ben-Veniste, a former Watergate prosecutor, called Trump’s rebuff of subpoenas “a serious escalation of the president’s effort to defy congressional oversight of the executive branch” and “a deep erosion of the fundamental precepts of the balance of power enshrined in the constitution by our framers.” He noted that the constitution makes clear that “the president and the executive branch are subject to oversight by the Congress.”
“You can’t have a president acting as though he is the monarch,” he said.
Correction: This story has been updated to reflect that the Bipartisan Legal Advisory Group in the House consists of five members from the majority and minority leadership, not three.