As the deadline looms for President Trump to produce evidence for Congress of the “tapes” he suggested he made of his conversations with former FBI director James B. Comey, lawmakers are trying to figure out what to do if he doesn’t.
But even with a subpoena, the panel stands little chance of actually compelling Trump to turn over anything he doesn’t voluntarily want to produce, according to legal experts, setting lawmakers up for a high-stakes choice: Let it go, and look like they are giving the president a pass; or pursue the subpoena, and risk exposing the legislative branch’s weakness in the midst of a historic probe of the president.
“I’m skeptical about this ever getting any traction,” said Andrew Herman, a specialist in civil and criminal federal litigation and an expert on congressional investigations. “If it behooves him to release a tape or tapes, he will; otherwise, he won’t.”
The case at hand began just a few days after Trump fired Comey from his perch as FBI director, warning in a tweet that “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press.”
The tweet inspired Comey to pass memos he had kept of his conversations with Trump to the New York Times with the help of a friend, the former FBI director told the Senate Intelligence Committee earlier this month.
It also inspired lawmakers in both houses of Congress to ask not only for copies of Comey’s memos, but for Trump to produce the tapes he referenced as well.
Thus far those requests for the tapes are only requests — and the House Intelligence Committee’s request is the only one carrying a hard deadline. On Tuesday, White House spokesman Sean Spicer said that Trump “will make an announcement on this. I expect it this week. And so when he’s ready to make that announcement, we’ll let you know.”
But despite promises to divulge information about the tapes soon, neither the president nor his lawyer has actually addressed the issue with any finality or additional details, leaving lawmakers to contemplate their next possible steps.
The House and Senate Intelligence Committees have been deploying subpoenas at an unusual pace over the last few weeks, with Senate investigators demanding personal documents and business records from former national security adviser Michael Flynn and House investigators demanding documents, testimony and business records from Flynn and Trump lawyer Michael Cohen. Flynn has turned over some paperwork to both committees.
The committees have issued those bipartisan subpoenas as their probes into alleged Russian meddling in the 2016 election heat up, particularly in the realm of investigating potential collusion between the president’s surrogates and Kremlin officials.
Senate Intelligence Committee chairman Richard Burr (R-N.C.) said this week that “where we’ve utilized [a subpoena], it has been very effective.”
But subpoenaing the president is another matter entirely — particularly because the entire strength of it rides on Congress overcoming political divisions to enforce it.
There are exemptions for federal officials claiming executive privilege on behalf of the president — and no figure in the White House is closer to the president than the president himself. Congress can try to circumvent that hurdle by passing what is known as a “contempt” resolution ordering the matter to a court — but against a Republican president, that is a tall order in a GOP-led Congress.
Even if lawmakers did manage to muster a majority of the House to support a contempt citation for the president, the case would likely be mired in court proceedings for years, lawyers noted — not exactly an ideal pace for lawmakers rushing to complete a congressional probe.
“It’s the pop gun effect,” said Stanley Brand, an expert in congressional investigations who formerly served as the House’s general legal counsel under then-Speaker Thomas P. “Tip” O’Neill, Jr. “That’s the problem — they get high and mighty and say ‘we’re going to subpoena,’ and they don’t give the next sentence, which is: how are you going to enforce it?”
Brand pointed out that “public opprobrium and pressure” remain the best tools at the lawmakers’ disposal to enforce a subpoena, given restrictions on other enforcement possibilities that have complicated Congress’s efforts to force answers from the executive branch through some of the most high-profile investigations, including Watergate and the Iran-contra affair.
“But to threaten subpoenas is an empty threat, honestly,” he said.
Some lawmakers argue that if a subpoena is their only option to step up pressure on the president, it is the best one.
“If they’re not going to cooperate the only other option is to subpoena them, and I hope it doesn’t come to that, but that’s — that’s the only other way to get it out of them,” said intelligence committee member Eric Swalwell (D-Calif.)
Rep. Mike Conaway (R-Tex.), the senior intelligence committee member tasked to run the panel’s Russia probe after chairman Devin Nunes (R-Calif.) stepped aside under ethics inquiry during the spring, has not said whether he supports using a subpoena to compel information about “tapes” from Trump.
“We’re not talking about those details,” he said this week.
But there is another factor to consider in issuing those subpoenas, lawyers warned, which is that no subpoena exists in a vacuum. One unheeded subpoena potentially weakens the strength of the next one — which is exactly what lawmakers with limited enforcement tools running a congressional probe into the activities of a sitting president want to avoid.
“It’s a diminishment of their institutional power vis-a-vis the executive branch,” Herman said. “It’s another one in the executive branch’s column, when they can ignore subpoenas with impunity.”