President Trump’s announced refusal to comply with all congressional subpoenas, and his demand that current and former government officials do the same, amounts to a flat denial that Congress has a legitimate role overseeing the executive branch. By adopting such a position, Trump has ramped up dramatically his longstanding efforts to undermine American democracy. The question is not just whether former White House counsel Don McGahn and others will testify as Congress is demanding. It is whether the president remains subject to the constraints built into our system of government to preserve the rule of law.
It is a basic principle of the Constitution that the president is not above the law and is checked in his exercise of executive powers in a variety of ways, including civil lawsuits, criminal investigations that may lead to impeachment, and oversight by the Congress. In his first two years, President Trump set out to neutralize most of these, attacking the federal courts, the FBI, and the Justice Department. There was little need, then, to take on the final and arguably most important check of congressional oversight because the Republican-controlled Congress simply was not performing that function.
But with the change in control of the House of Representatives, the president is now facing the kind of legislative oversight that other presidents have long had to deal with, and his response has been to just say no. His plan seems to be to get to the next election by denying House committees any information needed to determine whether the administration is taking care that the laws be faithfully executed, as the Constitution demands. If that strategy succeeds, it will have nullified one of the key checks on the power of the president built into our constitutional system.
There should be no doubt who is right on the law. The power of congressional oversight is well established. The president has invoked executive privilege (which protects some internal advice to the president from disclosure), but that doctrine does not begin to justify the kind of wholesale stonewalling we are now witnessing.
Take for example the example of McGahn, who has been subpoenaed by the House Judiciary Committee to elaborate on the descriptions of presidential obstruction of justice he provided to special counsel Robert Mueller. Last week, the Washington Post reported that two White House officials said the administration plans to invoke executive privilege to shield McGahn from testifying. But that maneuver would not be legal.
First, executive privilege does not provide blanket protection to everything that happens in the executive branch. If it did, oversight would be impossible. The privilege certainly should not be used to block inquiries into whether President Trump obstructed justice by calling on McGahn to fire Mueller.
Second, the White House effectively waived its right to executive privilege when it authorized McGahn to speak to Mueller over the course of 30-hours of interviews, as reported by the New York Times. Former Watergate prosecutor Richard Ben Veniste put it well: “I don’t see how the White House can assert executive privilege with something that has already been revealed. To use the Watergate expression, ‘you can’t put the toothpaste back in the tube.’” And the waiver became even clearer when the White House chose not to invoke executive privilege as a basis to redact any portion of the Mueller report.
The bottom line is that a blanket assertion of executive privilege to block congressional oversight is a gross abuse of power. Perhaps what is most alarming is the president’s calculation that this defiance of Congress will be politically popular. He believes he can sell it as putting up courageous resistance to politically motivated “presidential harassment,” as Trump has dubbed it. And he may be right. It is a hallmark of leaders seeking to free themselves from democratic constraints that they portray themselves as fighting against evil forces holding them back from wielding greater power to serve the people.
This is not to say that the Democrats in the House are acting entirely apolitically. Of course they are not. And prior administrations have certainly used dubious assertions of privilege to block investigations of their perceived failures. It is always tempting for presidents to take advantage of the difficulties in our system of enforcing congressional subpoenas.
But what is happening today is entirely different. The president's blanket refusal to cooperate with congressional oversight is both unprecedented and another example of his unerring instinct for undermining democratic norms. It needs to be seen in that light and opposed by all those working to shore up our system of government. This means Congress itself, the courts, and ultimately the American people. If Trump can get away with ignoring subpoenas from another branch of government, then we have lost an essential check on the power of the presidency for the future.
Paul Smith is the vice president of litigation and strategy at the Campaign Legal Center in Washington. He teaches at Georgetown Law Center and is a member of the board of directors of the American Constitution Society.
Note: originally published at thehill.com; re-published with permission.