Are Democrats overstepping? Ask Barr

The structure of the U.S. Constitution assumes that the electoral process — aka politics — is the primary means of holding federal officials accountable to the people. Which is why President Trump’s tweet storm assailing the House of Representatives’ oversight hearings as “PRESIDENTIAL HARASSMENT” is wrong as a matter of constitutional law.

The hearings inform our politics and reflect them; in this case, who won the midterm.

To be sure, we can all buckle our seat belts in anticipation of fiery probes of all things Trump by the now Democratic-controlled House. The top target: the cozy relationship between the president and Russian President Vladimir Putin, and the possibly nefarious reasons behind it. That it is also the stuff of special counsel Robert S. Mueller III’s investigation in no way removes it from congressional scrutiny.

There are also Trump’s elusive tax returns to look into, the financial ins and outs of the Trump Organization, the administration’s disparate handling of Hurricanes Harvey, Irma and Maria, the family separations and juvenile deaths at the southern border — among umpteen other matters.

Any one of these could undoubtedly have already drawn congressional oversight under more normal administrations. The fact that Congress is roaring back to life is a good thing — for both democracy and “We the People.”

In the Constitution’s separation-of-powers design, members of Congress and the president are held accountable by the people at the ballot box. Those within the president’s chain of command — including military personnel and federal agency bureaucrats — are accountable to the people through him too, because he hires and fires them.

A sitting president may also be held accountable through the courts, but the judicial branch is not tethered to popular will. Federal judges are appointed for life on the theory that the people fare better if courts make decisions based on individualized facts and the applicable law, not on politics or the prospects of reelection. But if these judges get things wrong, the people can’t fire them.

Moreover, relying on federal courts and especially the Supreme Court to judge contentious executive rules and actions is laborious and its outcome —– a decision that determines the meaning of the Constitution — is inflexible. And when it comes to potential criminal behavior, there are those who contend that the Constitution doesn’t allow indictment of a sitting president.

So it’s best that Congress be the one to grade the president’s papers, so to speak; but are there limits?

Just ask the soon-to-be attorney general of the United States, William Barr. He gave an answer to this question in a memorandum prepared back in 1989, when he was an assistant attorney general in the Office of Legal Counsel — the elite unit of the Department of Justice that advises the president on constitutional matters — under President George H.W. Bush.

Barr argued — I think properly — that “the constitutional role of Congress is to adopt general legislation that will be implemented — ‘executed’ — by the executive branch,” and that “this general legislative interest gives Congress investigative authority.” In other words, Congress can investigate because it can legislate.

As a matter of practice, the president can try to evade a congressional investigation with a claim of executive privilege. The theory behind the claim is that candor among the president’s advisors is a good thing. If a president’s confidants know that what they say can be flashed before the public in a congressional hearing or otherwise, they may not be willing to speak up — and a lack of frankness would be bad at the helm of the executive branch.

But executive privilege is not absolute. Back to Barr’s memo: “The Constitution nowhere expressly states that the President, or the executive branch generally, enjoys a privilege against disclosing information requested by the courts, the public, or the legislative branch.” The need for candor must give way to the greater public interest, which includes — and on this Barr quotes the Supreme Court — “the possibility that such conversations will be called for in the context of a criminal prosecution.”

Ideally, “where Congress has a legitimate need for information, and the executive branch has a legitimate, constitutionally recognized need to keep certain information confidential,” the two branches will try to accommodate each other — an unlikely outcome in our toxically polarized political climate.

Which brings us back to the “harassment” versus “appropriate oversight” dance going on in Washington now. When is an executive branch refusal to play ball as legitimate or more legitimate than Congress’ need for information?

There is no black-and-white legal answer to this question. But we can be sure that claims of executive privilege are not a shoo-in. It’s undeniable that questioning acting Atty. Gen. Matthew Whitaker about goings-on at the Department of Justice could help Congress decide whether to pass legislation making it harder to dismiss a special counsel.

Additionally, the 17 known potentially criminal investigations of Trump-related matters provide a strong rationale for a congressional peeking behind the curtain. And indeed, if those who believe that a president cannot be constitutionally indicted by a grand jury — and thus ultimately cannot be tried before a federal judge — are correct, congressional oversight would be the sole option for ensuring the president’s fidelity to the voters’ interests.

So, no, House Democrats are not going “nuts,” to use the president’s word. The hearings scheduled aren’t unprecedented, despite tweets to the contrary. And rather than harassment, robust congressional oversight represents the best way to scrutinize the actions of this or any administration.