Congress may have issued its last successful subpoenas to a president of the opposite party, some senators worry, now that President Donald Trump is acquitted of the House’s obstruction of Congress charge.
The argument is that the 47-53 vote Wednesday to reject the second article of impeachment lessened the legislative branch’s power to oversee the executive branch and complicates ongoing litigation on the power of a congressional subpoena.
While some Republicans played down how much the impeachment would affect the legislative branch, Sen. Christopher S. Murphy had a dire prediction.
“I don’t know why a president would ever honor a subpoena after this,” the Connecticut Democrat told CQ Roll Call. “I think what we have signed off on is the future irrelevance of any congressional oversight of the executive branch.”
“This has really sabotaged the balance of power between the Congress and the executive branch, essentially saying that the executive can violate, ignore subpoenas with impunity and not be held to account,” Van Hollen said. “This is a very dangerous precedent.”
Since taking over control of the House last year, Democrats have clashed with the Trump administration and the president’s pledge to defy every subpoena.
Those time-consuming legal fights include a lawsuit seeking documents from the administration’s failed attempt to add a citizenship question to the census, in which the Justice Department has argued Congress should use its other tools, including impeachment, instead of enlisting the courts.
“It doesn’t even seem like Senate Republicans care. I mean, at least a few of them are going to say that the president did abuse his power, but it wasn’t enough to impeach,” Murphy said. “I don’t hear any of them creating any fuss over their blanket obstruction, and I just — I think that will come back to haunt us, but we haven’t been a very good oversight body for a long time.”
“There are only a handful of impeachment trials, so whatever happens here does become precedent,” Murphy added.
Republicans have opted for a different strategy, with Sen. John Cornyn arguing the House decided against flexing its legal muscle to pursue the administration.
Congressional majorities “are just going to have to enforce it,” the Texas Republican, a former majority whip, said last week. “That’s the problem these House managers had. They dropped the subpoenas and had the litigation declared moot.”
Cornyn also expressed doubt about the potential success of the Justice Department’s efforts to shut congressional disputes out of the courts.
“That wasn’t before us here, and that has yet to be ruled on by a judge,” Cornyn said. “I doubt they’ll be successful.”
Connecticut Democratic Sen. Richard Blumenthal, a fellow member of the Judiciary Committee, certainly hopes that is the case.
“The administration has engaged in this really obstructionist use of the courts, claiming that they don’t have jurisdiction,” Blumenthal said.
Normally, Congress’ subpoena power has existed without hard limits. Staff negotiations over documents and witnesses have typically been the norm, not court battles, which could go on for months or years, according to several experts.
Both Lightfoot Franklin & White LLC partner Jack Sharman and Sheppard Mullin LLP partner Jonathan Meyer said the courts have shied away from refereeing fights between Congress and the White House.
Sharman, former counsel to the House Financial Services Committee during the Whitewater investigation, argued that “executive branch agencies have been resisting congressional subpoenas since time immemorial.”
The president’s refusal to comply with subpoenas in a general sense may have some effect, Sharman said, as agency officials have the president standing between them and Congress.
“An agency official that is under the jurisdiction of, say, the House Financial Services Committee is going to be very concerned about a Financial Services Committee subpoena, and I think as a practical matter there can be some effect if the president himself intervenes between an official or even an agency head,” Sharman said.
Meyer, who served as general counsel in the Department of Homeland Security in the Obama administration and Judiciary Committee counsel before that, argued the courts may eventually rule in the House’s favor, but Trump bought himself time.
“The law seems to be on Congress’ side here, but what the administration has succeeded in doing is delaying testimony and production of documents until impeachment is over,” Meyer said.
Rhode Island Democratic Sen. Sheldon Whitehouse similarly said he doubted the precedential power of the latest impeachment proceeding.
“I think this particular impeachment is fraught with politics and influence and pressures that change over time,” Whitehouse said. “Clearly, the shades of [former Sens. Jeff] Flake and [Bob] Corker still haunt the chamber as recent examples of what happens to the political careers of people who cross Trump.”
Meyer said the impeachment and other subpoena fights have chiefly bought Trump time, drawing out the conflicts over impeachment and oversight. Congressional oversight could slow further, he said, should future administrations take the same strategy.
“Congress would use the mere threat of a subpoena as leverage to get an agency to cooperate,” Meyer said. “This administration’s willingness to just blanket ignore them has taken away a lot of the power that Congress had.”
The spectacle of impeachment may help the House’s case for former White House counsel Don McGahn’s testimony and other cases for administration records, Whitehouse said.
That, he explained, is because Chief Justice John G. Roberts Jr., who presided over the impeachment trial, and the other Supreme Court justices may ultimately decide the validity of congressional subpoenas.
“If there’s any good that has come out of this debauch of a proceeding, it is that Chief Justice Roberts has had to watch these arguments being made,” Whitehouse said. “So that when the case comes to him, I think he may have a better practical sense of how these arguments stand and what they mean.”