As Donald Trump vows to fight every congressional subpoena issued by House committees investigating his presidency and personal affairs, Democratic lawmakers and strategists are coming to grips with a new reality in which the subpoena might be obsolete.
“At this point, it’s just a piece of paper,” a former senior congressional investigative aide said. “It’s useless.”
Democrats have so far struggled to cobble together a unified strategy for enforcing their subpoenas while Trump, who will try to delay any disclosure of information until after the 2020 election, is still in office.
Some have proposed deploying an arcane measure called “inherent contempt” to fine or even jail Trump administration officials who defy subpoenas. Democratic House leadership hasn’t entirely ruled that out, though the optics of the House sergeant-at-arms going to the homes of Trump advisers, putting them in handcuffs and marching them to holding cells in the Capitol isn’t very palatable for some Democrats.
The clamor for a coherent way forward has resurfaced existential questions for lawmakers about the limits of legislative branch authority, the most pressing of which goes roughly as follows: If we can’t reasonably enforce our only mechanism to compel information from the executive branch — the subpoena — what kind of government do we have?
A “dictatorship,” offered Rep. Brenda Lawrence, a Michigan Democrat on the House Oversight and Reform Committee.
A “monarch,” House Judiciary Chairman Jerrold Nadler of New York said.
Decay of ‘norms and comity’
In the past, congressional investigations have relied more on “norms and comity” than contempt of Congress votes, litigation, and jail threats, said Chris Armstrong, a partner at Holland & Knight where he handles congressional investigations for clients. He was previously chief oversight counsel for the Senate Finance Committee under Utah Republican Orrin G. Hatch.
“Congress has been asking for documents that presidents didn’t want to turn over literally since the Washington administration. But these conflicts have almost always been resolved through negotiation,” Armstrong said.
The executive branch, theoretically, has things it needs from the legislative branch — money to carry out its functions and confirmation of court and political appointees, to name a few— and thus has a vested interest in maintaining a cooperative relationship.
But the theoretical world is a far cry from the one we live in now.
Congress has increasingly resorted to supplying federal appropriations through stopgap continuing resolutions and ceded some power to the White House to govern through executive action. The president’s incentives to cooperate with Congress’ requests — and its subpoenas — have diminished along with those changes.
On top of that crumbling institutional foundation sits Trump, a uniquely pugnacious president whose administration and personal and business finances are under intense scrutiny from a Democrat-controlled House, eager to unearth any malfeasance.
The Judiciary Committee is conducting a wide-ranging probe into possible corruption and obstruction by Trump and people in his administrative and business orbit. The Oversight panel is investigating his business conflicts of interest and allegations of illegal hush payments he dished out to his former paramours during the 2016 campaign. The Intelligence and Financial Services committees are looking into whether he is compromised by financial ties to foreign entities, including the Russian government, and whether those alleged ties pose a security risk to the country he governs. And the Ways and Means panel has demanded that the IRS hand over six years of his personal and business tax returns to investigate whether he’s cooking the books.
Trump has built his political image on a fierce partisan disdain for Democrats and their oversight investigations that he has branded as “presidential harassment.” He has dismissed, wholesale, what Democrats have said is the legislative branch’s constitutional oversight mandate.
“We’re fighting all the subpoenas,” he told reporters last week, calling them the “weapon of choice” for House Democrats as they wage an “all-out political war.”
It’s comments like those that have Democratic investigators flummoxed over their next steps since Congress has never faced this kind of all-encompassing opposition to administrative oversight.
“What our tactic is? I don’t know. People are looking around because, to a certain extent, there have to be norms that are respected by each of the branches, and that’s in doubt now,” Rep. Peter Welch said.
The Vermont Democrat, who sits on the Oversight panel that is investigating Trump’s finances, possible breaches in the White House’s security clearance policies, and his business entanglements and conflicts of interest, acknowledged that it’s a “common assertion” for presidents, not just Trump, to dismiss congressional oversight inquiries as “just politics.”“But other executives have also acknowledged the separation of powers in the Constitution. … This administration doesn’t do that,” Welch said.
Each administration ‘worse than the last’
Trump’s statements rejecting the legitimacy of congressional investigations mark a sharp departure from his predecessors, who might have fought some congressional inquiries to the death, but by and large negotiated with lawmakers to release at least some requested materials and make some witnesses available for interviews.
“There’s a saying among congressional investigators that every administration is the least responsive in history, because each is worse than the last,” said Armstrong, the former Republican investigative staffer. “The Obama administration was very aggressive against congressional oversight, and the Trump administration doesn’t look like it will be outdone.”
But another former senior GOP oversight aide argued that Trump has already jetted past Obama to set a new bar for stonewalling congressional inquiries.
“I don’t think anyone doubted that there was a respect for the role of Congress in terms of how the Obama administration viewed Congress,” said Kurt Bardella, a senior adviser to former House Oversight Chairman Darrell Issa from 2009 to 2013.
“Even if they disagreed with what we were doing, even if they had a strategy to deal with us, I don’t think any of us doubted President Obama’s belief in our role and recognition of our authority. More often than not, when push came to shove, the administration would end up having to produce whatever it was that we were asking for,” said Bardella, who now identifies as a Democrat.
Republicans on the Oversight panel only held two Obama administration officials in contempt of Congress: former Attorney General Eric H. Holder Jr. for withholding information about the government’s botched Fast and Furious gun smuggling operation, and former Internal Revenue Service appointee Lois Lerner for withholding information about an alleged scheme at the agency to target conservative groups for tax evasion.
Bardella said he felt vindicated in the Holder case when the courts ultimately ruled — after a four-year slog in court — that the Obama administration had to hand over the documents committee Republicans had requested and those documents revealed the controversial specifics of the Fast and Furious operation.
But after the Lerner case turned up little evidence to substantiate Republican allegations, Bardella said it befuddles him to this day why the Obama administration so fiercely defended its position when it had nothing to hide.
The administration ultimately paid “a political price of looking guilty without necessarily being so,” he said.
“Contrast that to Trump who doesn’t care if [his administration] looks guilty, who doesn’t care if they have things to hide, who doesn’t care about anything. And anytime that information comes out that contradicts their narrative, they just call it fake news.”
The politics of subpoena power
Ultimately, some Democratic lawmakers have concluded, the American public will decide whether Trump is right to defy congressional subpoenas.
“This is really a battle of public sentiment,” said California Rep. Ro Khanna, an Oversight Committee member. “What we have to convince the American public is that Trump is engaging in an unprecedented effort to block legitimate oversight.”
Congress only has three options to address a non-compliant executive branch, and all three have unsavory aspects: It can sue the administration for civil contempt of Congress, which would likely drag on for years; refer individuals for criminal contempt to the Justice Department, which is headed by Attorney General William Barr, a Trump appointee; or go the inherent contempt route and order the House sergeant-at-arms to begin arresting people, a step that hasn’t been taken since 1935.
So, Armstrong summarized, Congress “has the options of a multi-year court case, being ignored, or constitutional crisis.”
With Trump casting aside the norms of congressional oversight with more frequency and vigor than any president before him, Democrats have said voters will have to decide whether this is the kind of balance they want between the executive and legislative branches.
“You can read the strict letter of the law, but if you have an executive that just doesn’t care whatever the Constitution says, that creates its own new reality,” Welch said. “So at a certain point, the voters are going to have to weigh in on this. … It’s not like we can send in the 10th Mountain Division to get what we need.”