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Trump’s Troubling Rebuke of Congressional Oversight

Congress’ ability to fully know the facts and to investigate them thoroughly is critical for our democracy to work, argues Brennan Center Fellow Victoria Bassetti.

As Congress’ invest­ig­a­tions into the Trump admin­is­tra­tion heat up, the White House has respon­ded by refus­ing to comply with many of the subpoenas and over­sight requests from the House Demo­cratic major­ity. Citing House Demo­cratic sources, Politico reports that the Trump admin­is­tra­tion has at least 30 times refused or delayed the release of inform­a­tion reques­ted House commit­tees and half a dozen offi­cials have refused to appear before House panels. Notably, the Trump admin­is­tra­tion has ignored a dead­line for releas­ing Pres­id­ent Donald Trump’s tax returns and attemp­ted to block subpoenas for current and former offi­cials to appear before Congress, includ­ing former White House coun­sel Don McGahn, former White House person­nel secur­ity director Carl Kline, and senior policy adviser to the pres­id­ent Stephen Miller.

Victoria Bassetti, fellow at the Bren­nan Center who worked for the Senate Judi­ciary Commit­tee for eight years, spoke with staff writer Tim Lau to discuss the context behind the House’s invest­ig­a­tions, how they differ from the Mueller inquiry, and what must be done to strengthen consti­tu­tional norms related to congres­sional over­sight.

This inter­view has been edited for clar­ity and length.

Tim Lau: The White House has been refus­ing to comply with the House’s subpoenas and over­sight requests. Are there any histor­ical paral­lels we can refer­ence, and if so, how do they compare to this time around?

Victoria Bassetti: There aren’t precise histor­ical paral­lels because the Trump admin­is­tra­tion’s refusal to comply with to House subpoenas and over­sight requests is so sweep­ing and broad. We’ve never quite seen anything like this before.

However, there are two recent histor­ical compar­is­ons some people might make. One is the invest­ig­a­tion that followed the U.S. Attor­ney firing scan­dal that star­ted in late 2006 during the George W. Bush admin­is­tra­tion. And a second compar­ison was the House of Repres­ent­at­ive’s 2012 invest­ig­a­tion into the so-called Fast and Furi­ous scan­dal involving the Bureau of Alco­hol, Tobacco, Fire­arms and Explos­ives (ATF). With these two cases, we have examples of a Demo­cratic House invest­ig­at­ing a Repub­lican exec­ut­ive branch and of a Repub­lican house invest­ig­at­ing a Demo­cratic admin­is­tra­tion.

So those are two most recent analo­gies, but even they don’t really hold up to the Trump admin­is­tra­tion’s refusal to comply with Congress’ subpoena and over­sight requests. Both of the previ­ous cases involved narrow topics about specific incid­ents and specific people. And in both cases, the House effect­ively “won.” In the U.S. Attor­ney firing scan­dal, the House ulti­mately got their witnesses and docu­ments after a number of legal proceed­ings. And in the Fast and Furi­ous scan­dal, both the Justice Depart­ment and White House ended up turn­ing over a large number of docu­ments to the House. Although the House did ulti­mately cite then Attor­ney General Eric Holder for contempt, it did not further pursue the matter in court.

Neither of the previ­ous examples had the same scope and breadth as the Trump admin­is­tra­tion’s recal­cit­rance — or the calcu­lated, in-your-face rebuke to the House’s over­sight author­ity. What the Trump admin­is­tra­tion is doing now is all-encom­passing. They’re drag­ging their feet on pretty much every issue that the House wants to do over­sight on. The current situ­ation is more extreme in its affront to our consti­tu­tional separ­a­tion of powers.

The Trump team argues that it’s already finished its job, so to speak, by “comply­ing” with the full process of the Mueller report.

First of all, comply­ing with the Mueller invest­ig­a­tion is differ­ent from comply­ing with a prop­erly issued subpoena from Congress — whose status as a coequal branch of govern­ment is crucial to a func­tion­ing consti­tu­tional system of demo­cracy. Also, it’s a stretch to say that Trump complied with the Mueller invest­ig­a­tion. But even if he had, it does not relieve him from respect­ing our consti­tu­tional system.

Second, the House has an incred­ibly import­ant and radic­ally differ­ent role to play than Mueller might have played in invest­ig­at­ing Trump. Congress is the insti­tu­tion that passes obstruc­tion of justice laws, and they prob­ably have a lot to learn about how to modify those laws based on the after­math of the Mueller report. Addi­tion­ally, Congress can poten­tially pass laws on the inde­pend­ent coun­sel process. So, they might want to learn how Attor­ney General William Barr handled the Mueller invest­ig­a­tion, and based on that, decide that some type of legis­la­tion needs to be passed. Finally, Congress plays a crit­ical role in protect­ing and secur­ing elec­tions, includ­ing the alloc­a­tion of funds to states or to the exec­ut­ive branch for admin­is­ter­ing our elec­tions.

Across all of these issues, Congress’ abil­ity to fully know the facts and to invest­ig­ate them thor­oughly is crit­ical for our demo­cracy to work and to be protec­ted against hostile powers. Congress also plays a crit­ical role in keep­ing our justice system fair, provid­ing strong defenses against obstruc­tion of justice, and ensur­ing that the Justice Depart­ment can adequately invest­ig­ate exec­ut­ive branch officers so that no one is above the law.

And let’s remem­ber that Congress’ author­ity to subpoena and to request docu­ments goes back to the found­ing decades of our demo­cracy. As early as 1795, Congress was using its invest­ig­at­ive and contempt power. By 1821, a Supreme Court ruling held that Congress has the inher­ent author­ity to seek inform­a­tion and to hold people in contempt for refus­ing to provide it. In other words, Congress’ subpoena author­ity and its power to enforce its subpoenas are almost as old as our Consti­tu­tion.

What kind of role, if any, will the courts play moving forward?

There’s a strong like­li­hood that a lot of this is going to end up in the courts. At the end of the day, I don’t see how the House is going to accept the Trump admin­is­tra­tion’s recal­cit­rance, which leaves going to the courts as the final option. So, we’re going to have kind of a triple play of our consti­tu­tional insti­tu­tions swirl­ing about one another trying to nego­ti­ate this conflict. What that means is that if the House exer­cises its subpoena author­ity, Congress and the Trump admin­is­tra­tion are frequently going to be in front of the courts as they attempt to adju­dic­ate this conflict. And there are few things that are likely to happen.

The first is that it’s likely going to go slowly, so it’s unclear to what extent there will be any resol­u­tion for these cases before the 2020 elec­tion. (However, there’s always a possib­il­ity that some indi­vidual cases will be fastracked.) The second is that the courts tend to try exer­cise restraint when it comes to medi­at­ing  these inter­branch conflicts, and that the courts tend to attempt to use sort of a defer­ence when adju­dic­at­ing these cases. But third, despite that defer­ence, I think it’s highly likely that the courts will ulti­mately be forced to decide. If that happens, the long line of preced­ent — regard­ing exec­ut­ive priv­ilege and the scope of Congress’ power to request docu­ments and for people to appear — is largely in Congress’ favor. That does­n’t mean, however, that Congress is going to win every one of these battles.

Where do these recent devel­op­ments fit within the broader narrat­ive of the Trump pres­id­ency?

Over the last two years, we’ve consist­ently seen the Trump admin­is­tra­tion act like they are above and beyond anyone’s over­sight and ques­tion­ing. In one recent example, just a few weeks ago, Commerce Secret­ary Wilbur Ross refused to appear before the House and Senate Appro­pri­ations commit­tees to answer ques­tions about his own budget requests. Also a few weeks ago, Treas­ury Secret­ary Steven Mnuchin gave curs­ory respect to the House Bank­ing Commit­tee’s request for him to stay past a certain period of time. Right now, these high-level admin­is­tra­tion offi­cials increas­ingly have an atti­tude of almost sneer­ing at Congress, which sets up an increased poten­tial for conflict across the board.

What can Congress do to strengthen the rule of law and consti­tu­tional norms?

You know, that’s a very diffi­cult task for Congress right now because the prospect of Pres­id­ent Trump sign­ing reforms into law are not partic­u­larly high at this moment. But it seems indis­put­able to me that the process of think­ing through the codi­fic­a­tion of norms and rule of law prin­ciples needs to begin soon.

And that issue, as you know, is one that the Bren­nan Center Task Force has issued a report on, with a number of really crit­ical sugges­tions on how to move forward on these reforms. But as it stands today, Congress unfor­tu­nately has only has two tools at its disposal. One is the slow-moving, slightly weak power that it has to enforce subpoenas. Going to court to seek contempt takes a long time and is diffi­cult to accom­plish.

The other major tool that Congress has at its disposal is the power of the purse, or its appro­pri­ations power. But that is an awfully blunt instru­ment. And as we know, using that power is not a straight­for­ward process and can poten­tially create a crisis or a shut­down. The fact that there really only these two tools — one weak, and one incred­ibly strong but blunt and hard to use — really points to the need for some­thing in between, in terms of laws. And it really points to the need for a return to a sense of comity and bipar­tis­an­ship and shared values about our consti­tu­tional insti­tu­tions.

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

(Image: Zach Gibson/Getty)