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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)