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Are We in a Constitutional Crisis?

The scope of the Trump administration’s defiance of Congress points to one, argues Brennan Center Fellow Victoria Bassetti.

May 14, 2019

Clear the docket at the District of Columbia federal court­house. The House of Repres­ent­at­ives versus Trump admin­is­tra­tion over­sight subpoena war has landed at its door­step, and the next year prom­ises legal skir­mishes galore.

But is it a consti­tu­tional crisis? House Judi­ciary Commit­tee Chair Jerrold Nadler (D-NY) said it was last week after the commit­tee voted to cite Attor­ney General William Barr for contempt of Congress. “There can be no higher stakes than this attempt to abrog­ate all power to the exec­ut­ive branch away from Congress and, more import­antly, the Amer­ican people,” Nadler told report­ers Wednes­day. “We talked for a long time about approach­ing a consti­tu­tional crisis — we’re now in it.” 

There is no Merriam-Webster defin­i­tion of consti­tu­tional crisis — no simple check­list to determ­ine whether it’s happen­ing. Not surpris­ingly, then, many people are push­ing back on Nadler’s asser­tion. They argue that tension between the exec­ut­ive and legis­lat­ive branch is common. It’s not unusual for the Depart­ment of Justice to push back on and nego­ti­ate over what docu­ments it will supply to Congress. More partic­u­larly, we have not reached a complete impasse yet. These conflicts are likely headed to court. It won’t be a consti­tu­tional crisis unless and until the admin­is­tra­tion refuses to comply with a court order.

Yet three elements of the current show­down — its breadth, tenu­ous legal found­a­tion, and tone — all point to crisis, if not now then soon.

First, the admin­is­tra­tion’s defi­ance of House over­sight efforts is stun­ningly unpre­ced­en­ted and all-encom­passing. Pres­id­ent Trump wasn’t kidding when he said, “We’re fight­ing all the subpoenas.” He defies congres­sional over­sight the way he decor­ates his houses: extra­vag­antly and in your face.

The current spar­ring over the House Judi­ciary Commit­tee’s effort to obtain an unre­dac­ted copy of the Mueller report and its under­ly­ing mater­ial is just the tip of the iceberg (or just one gold-plated Louis XV bergère among many, if you will). However, it’s worth recount­ing the sweep and scope of the admin­is­tra­tion’s nonco­oper­a­tion in some detail to demon­strate just how vast it is.

Secur­ity Clear­ances: After a whis­tleblower revealed to the House Commit­tee on Over­sight and Reform that secur­ity clear­ances for 25 people at the White House were gran­ted despite concerns about black­mail, foreign influ­ence, or other red flags, the commit­tee reques­ted docu­ments and testi­mony regard­ing the matter. The White House initially instruc­ted its former head of person­nel secur­ity, Carl Kline, to ignore a subpoena. After he was threatened with contempt, Kline test­i­fied behind closed doors, but one lawmaker in the room felt he was unforth­com­ing. “I think that the White House [is] basic­ally instruct­ing the witness not to answer ques­tions that are very pertin­ent to our inquir­ies,” Rep. Raja Krisnamoorthi (D-IL) told report­ers. In addi­tion, the White House denied the commit­tee’s request for docu­ments, call­ing it “highly improper” and show­ing “total disreg­ard for indi­vidual privacy.”

The Census: Three federal district courts have called the Commerce Depart­ment’s justi­fic­a­tion for adding a citizen­ship ques­tion to the 2020 census pretextual — what a normal person would just call bogus. In an effort to get to the bottom of the decision, in early April, the House Over­sight Commit­tee subpoenaed John Gore, deputy assist­ant attor­ney general for the Depart­ment of Justice’s Civil Rights Divi­sion and one of the key play­ers in the drama. No surprise: he did not comply with the subpoena. The commit­tee also sought to inter­view Commerce Depart­ment staffers but was told no unless it could “further justify” the request. Last week, in an effort to get those inter­views under­way, the commit­tee threatened to use a law that allows it to with­hold the salar­ies of govern­ment offi­cials who inter­fere with its abil­ity to commu­nic­ate with other govern­ment employ­ees.

Record­keep­ing at the Interior Depart­ment: In early April, the Over­sight Commit­tee began to suspect that then-acting (now Senate confirmed) Secret­ary of the Interior David Bernhardt was play­ing games with his offi­cial calen­dar and docu­ment­a­tion in viol­a­tion of federal record­keep­ing laws. It launched an invest­ig­a­tion that was seconded by the National Archives, which also had concerns. To the shock of no one, the Interior Depart­ment failed to comply with any of the requests, and last week, the commit­tee also resor­ted to threat­en­ing to with­hold salar­ies in an effort to get the docu­ments and testi­mony it wants.

Puerto Rico: Earlier this year, at the request of several House members, the inspector gener­al’s office at the Depart­ment of Hous­ing and Urban Devel­op­ment announced it would invest­ig­ate whether the White House hindered efforts to get help to Puerto Rico after Hurricane Maria slammed into the island in 2017. But within a matter of weeks, the inspector general sent up a flare complain­ing about a “systemic lack of cooper­a­tion” at HUD and “unreas­on­ably” delayed docu­ment produc­tion.

The list goes on and on. Pres­id­en­tial aide Stephen Miller will not appear. Wilbur Ross, the secret­ary of commerce, declined to testify in support of his budget submis­sion. The attor­ney general was a no show at a hear­ing where he was to be ques­tioned by House staff attor­neys about the Mueller Report. Treas­ury Secret­ary Steven Mnuchin refused to release Pres­id­ent Trump’s tax returns. Pres­id­ent Trump person­ally has sued his banks, his account­ants, and the chair of the Over­sight Commit­tee, Rep. Elijah Cummings (D-MD), to block docu­ment produc­tion.

Indeed, POLITICO repor­ted that the admin­is­tra­tion is block­ing at least 30 docu­ment requests to 12 House commit­tees while at least 8 offi­cials have refused to appear before commit­tee for inter­views or testi­mony.

In many of these cases, the admin­is­tra­tion has some argu­able legal basis for its recal­cit­rance. But more often, the legal argu­ments are slim, laugh­able, nonex­ist­ent, or over­broad. Barr’s refusal to appear before the House Judi­ciary Commit­tee had no justi­fic­a­tion other than his appar­ent belief that he’s above being ques­tioned by staff. The admin­is­tra­tion’s asser­tion of exec­ut­ive priv­ilege over the entire Mueller report was over­broad. Mnuch­in’s argu­ment that a law that states he shall provide the pres­id­ent’s tax returns lacks “legis­lat­ive purpose” is mysti­fy­ing. Trump’s personal lawsuits against his banks and account­ants to block their compli­ance with subpoenas are, in the words of one comment­ator, “espe­cially comic.”

The noncom­pli­ance with the census, Puerto Rico, and Interior record­keep­ing inquir­ies is legally unsup­port­able.

These flimsy to fant­ast­ical legal posi­tions are coupled with a breath­tak­ingly confront­a­tional tone toward a co-equal branch of govern­ment. It is not yet clear whether members of the Trump admin­is­tra­tion have demon­strated legal contempt of Congress, but they have certainly shown literal contempt of Congress.

A recent exchange between Mnuchin and House Finan­cial Services Commit­tee Chair Maxine Waters (D-CA) laid bare the level of disrespect. Mnuchin, who wanted to leave a hear­ing early in order to meet with Bahrain’s interior minis­ter, was told by Waters that he could just walk out if he wanted to. Unsure what to do, Mnuchin then instruc­ted Waters how to run her own hear­ing: “Please dismiss every­body. I believe you are supposed to take the gravel [sic] and bang it,” he said. Waters, who is not to be trifled with, hit back: “Please do not instruct me as to how I am to conduct this commit­tee.” The video of the show­down went viral.

Attor­ney General Barr was less obvi­ous during his testi­mony about the Mueller report. But the sneer­ing tone certainly crept in on occa­sion. His exchange with Sen. Richard Blumenthal (D-CT) was partic­u­larly reveal­ing. After Barr acknow­ledged that there were notes taken during his call with Special Coun­sel Robert S. Mueller, Blumenthal asked, “May we have those notes?” To which Barr flatly said, “No.” The senator followed up: “Why not?” Barr’s answer: “Why should you have them?”

Barr and Mnuchin are simply reflect­ing the atti­tude of the pres­id­ent. And to be fair, it’s not as if the coun­ter­parties in the fraught exchanges were being partic­u­larly nice to them. All told, then, the parties are stak­ing out maxim­al­ist confront­a­tional posi­tion and leav­ing very little room for comprom­ise.

Prin­ceton polit­ics professor Keith Whit­ting­ton argues that there are two types of consti­tu­tional crises: oper­a­tional ones “when import­ant polit­ical disputes cannot be resolved within the exist­ing consti­tu­tional frame­work” and a crisis of fidel­ity where “import­ant polit­ical actors no longer believe[] them­selves bound by the consti­tu­tional rules.” Look­ing at the evid­ence of the last few weeks, it’s hard not to come to the conclu­sions that both are in play.

Cumu­lat­ively, if the stem-to-stern defi­ance of Congress coupled with thread­bare legal excuses and a confront­a­tional tone don’t add up to a consti­tu­tional crisis, then what does? Are we actu­ally wait­ing for the pres­id­ent to tweet a confes­sion? 

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center for Justice.

(Image: Adam Bettcher)