While there’s nothing new about the courts refereeing disputes between Congress and the White House over executive privilege, the broader trend of resorting to the courts reflects the political reality of the House’s relative helplessness. Controlling only one half of the legislative branch and without any allies in the Republican-controlled Senate, it is effectively trying to enlist the federal courts in the cause while declining to use the full powers at its disposal, such as impeachment.
“Imperial presidency, unyielding partisan loyalty for a president regardless of what he does, and Democratic political fears,” said Julian Zelizer, a professor of history and public affairs at Princeton and author of the book “Fault Lines: A History of the United States Since 1974.” “You take all three of these factors, add them together and you have what we see today.”
On Tuesday, President Trump invoked executive privilege to prevent former White House counsel Donald McGahn from complying with a subpoena for documents and did so again Wednesday, in the face of a subpoena to Attorney General William P. Barr for the full report by Robert S. Mueller III and the underlying evidence the special counsel gathered.
The House Judiciary Committee voted along party lines to hold Barr in contempt of Congress Wednesday for refusing to turn over the requested material.
Assuming any contempt citation winds up in court, as they have in the past, it will join other legal actions by the House already underway: one in defense of its appropriations powers to halt Trump’s repurposing of federal funds to build a wall on the southern border; another in defense of the Affordable Care Act, which the Justice Department has declined to defend though it has historically been its duty to defend acts of Congress; and another at the Supreme Court where, in a friend-of-the-court brief, the House is trying to undo the Trump administration’s decision to add a citizenship question to the 2020 census.
The chairman of the House Ways and Means Committee, Richard E. Neal (D-Mass.), has said he is also considering legal action to obtain Trump’s tax returns. Treasury Secretary Steven Mnuchin refused to produce the president’s filings despite a 1924 law that says the IRS “shall” turn over tax returns to Congress.
And two House committees, Financial Services and Intelligence, are seeking to intervene in the lawsuit filed by President Trump, his children and the Trump organization to quash subpoenas to Deutsche Bank and Capital One Financial Corp.
The sum of the various court proceedings is an unprecedented multifront constitutional battle with the White House — waged not along either end of Pennsylvania Avenue but in courtrooms across the nation.
The president has a distinct advantage. While the House must wait for courts to act, he’s largely got what he wants. Barring some negotiated settlement, witnesses won’t testify, documents won’t be produced, evidence won’t be reviewed and contracts have already being signed for construction of the border wall.
That is not exactly how checks and balances were supposed to work. The original idea of the framers of the Constitution was that each branch of government would have “a will of its own,” as James Madison wrote, and armed with powers to protect themselves from encroachments by the others — such as the power of the purse and the power of impeachment — they would use them in self-defense.
Today, real checks and balances seem to come into play only when government is completely divided, with one party in control of both houses of Congress and another occupying the White House.
As a result, presidents have often been free to expand their power at the expense of, and often in complicity with, Congress or at least with congressional acquiescence.
Now, with a cadre of White House and Justice Department lawyers that has dramatically expanded since the 1960s, the president issues executive orders, said Bruce Ackerman, a constitutional law professor at Yale Law School “and then orders the bureaucracy to implement them. Congress is confronted with a fait accompli. The political dynamics put [it] on the defensive.”
“One of the most important restraints on how a president uses that power,” he said, “comes from self-restraint and norms against taking certain action. President Trump is not bound by those, and he exposes some of the limits of congressional power.”
Congress took advantage of the Vietnam War and Watergate to restore some balance among the branches, said Daryl J. Levinson, a professor of law at New York University.
“The presidency came out” of that period “having lost quite a bit of de jure authority to Congress — with respect to war powers, intelligence oversight, even the National Emergencies Act,” which Trump invoked in support of funding the wall, Levinson said.
But, he added, “Congress has never again mustered the political will to actually use any of the power that it took for itself at that high-water mark of bipartisan opposition to presidential misconduct.”
While Trump feels free to assert the full powers of his office, the House is holding back.
House Speaker Nancy Pelosi, for instance, noted at a Washington Post Live event Wednesday that one of the articles of impeachment against Richard Nixon was that he ignored congressional subpoenas, just as Trump says he will. “That could be part of an impeachable offense,” Pelosi (D-Calif.) said.
Yet she has also resisted impeachment in part because Republicans control the Senate, where impeachment trials are held, viewing the process as politically damaging to Democrats as well as futile.
The most potent weapon the framers gave the Congress is, at least for the moment, off the table.
So too, it appears, is the use of the House’s “inherent power” of contempt, which allows the House to hold someone in contempt and then lock them up or, more realistically, fine them.
Unused since 1935, it looks likely to remain mothballed, despite suggestions from Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) and Intelligence Committee Chairman Adam B. Schiff (D-Calif.) that they would consider it.
There’s “a level of Democratic timidity,” said Zelizer. “The Democrats are concerned about using the power that they do have because of the political consequences.”