Trump vows to stonewall ‘all’ subpoenas from the House
The Trump administration escalated its defiance of Congress on Wednesday, as the Justice Department refused to let an official testify on Capitol Hill and President Donald Trump vowed to fight what he called a “ridiculous” subpoena ordering a former top aide to appear before lawmakers.
“We’re fighting all the subpoenas,” Trump told reporters outside the White House. “These aren’t, like, impartial people. The Democrats are trying to win 2020.”
The moves added to an already remarkable week of stonewalling by the Trump administration after the release of the report by special counsel, Robert Mueller, that revealed the scope of the Russian operation to help Trump win the 2016 election and detailed his attempts to impede an investigation he saw as imperiling his presidency.
Trump’s flurry of moves this week to block multiple congressional investigations signaled a new phase of constitutional friction that could redefine long-murky boundaries of Congress’ power to conduct oversight of the executive branch – and the power of presidents to keep government affairs secret from lawmakers.
As a matter of politics, Trump’s strategy sets the stage for open warfare with House Democrats heading into the 2020 election. The results could be unpredictable at a time when House Speaker Nancy Pelosi has tried to keep a lid on liberal demands for impeachment proceedings – which are unlikely to succeed in removing Trump because substantial numbers of Senate Republicans would have to vote for them – by channeling their energies into vigorous oversight investigations of the administration.
As a matter of law, Trump’s declared tactic of fighting every subpoena faces steep obstacles,
‘‘ I THOUGHT AFTER TWO YEARS WE’D BE FINISHED WITH IT. NO. NOW THE HOUSE GOES AND STARTS SUBPOENAS.... I SAY IT’S ENOUGH.
President Donald Trump
legal experts said. The House can vote to hold in contempt officials who refuse to show up in response to subpoenas and ask judges for orders requiring compliance.
Litigation over whether those subpoenas were legitimate will turn on precedents that require both branches to make good-faith efforts to accommodate each other’s needs. It will also delve into whether executive privilege is waived in instances in which the Trump administration has already disclosed some of the information that the president is trying to keep from Congress.
But ultimately, prevailing in court may not be the goal. By essentially forcing Democrats to keep filing lawsuits to try to enforce their subpoenas, Trump will be fighting what he can portray as “presidential harassment” and to stall the inquiries themselves.
On Wednesday, the Justice Department said a civil rights division official, John Gore, would defy a subpoena to testify Thursday about its addition of a citizenship question to the census. This week, White House lawyers indicated that they would tell former White House counsel Donald F. McGahn II and other former officials not to comply with subpoenas for their testimony, a person familiar with the legal strategy said.
Trump has also sued to block a congressional subpoena of his accounting firm, Treasury Secretary Steven Mnuchin missed a deadline to turn over Trump’s tax returns to lawmakers and the former head of White House personnel security, Carl Kline, ignored a subpoena ordering him to appear for a deposition about overriding recommendations to deny security clearances.
Together, the events of the week made clear that Trump has adopted a strategy of unabashed resistance to oversight efforts by the House – reveling in abandoning even the pretense of trying to negotiate accommodations and compromise with the institution controlled by his political opponents.
“The president is attempting to repeal a congressional power of oversight that goes back to the administration of George Washington,” said Charles Tiefer, a former longtime House lawyer who is now a University of Baltimore law professor. He said “the comprehensiveness and intensity of this presidential stonewalling” exceeded anything he had seen in his 40-year career.
He added: “Congress can call witnesses about problems with the executive branch anytime. Otherwise there is no check on whether the executive branch is doing the public’s work or just exercising raw power.”
Speaking with reporters Wednesday, Trump cited the end of the special counsel investigation to declare he had been investigated enough. “I thought after two years we’d be finished with it,” he said. “No. Now the House goes and starts subpoenas.” He added, “I say it’s enough.”
He also falsely stated that Mueller’s investigators “came up with no obstruction.” In fact, they laid out extensive evidence that he committed that crime several times but stopped short of deciding whether to accuse him of it only because the Justice Department considers sitting presidents temporarily immune from indictment.
And on Twitter, Trump offered a novel idea for pushing back against any impeachment proceedings if House Democrats tried to move forward with them: He would get the Supreme Court to order them to stop.
“If the partisan Dems ever tried to Impeach, I would first head to the U.S. Supreme Court,” Trump wrote over two posts. “Not only are there no ‘High Crimes and Misdemeanors,’ there are no Crimes by me at all.”
Nothing in the Constitution or U.S. legal history gives the Supreme Court a role in deciding whether Congress has misidentified what counts as a high crime or misdemeanor for the purpose of impeachment.
Notwithstanding Trump’s denunciation of the subpoena to McGahn, his administration’s legal team has not put forward any legal theory for why executive privilege – the president’s power to keep secret certain internal executive branch information – would ban the kind of testimony the House Judiciary Committee is seeking from the former White House lawyer: essentially, to go over what he already told Mueller.
Trump waived executive privilege to let Mueller freely question McGahn about their conversations, and Attorney General William Barr made McGahn’s accounts public by disclosing most of the special counsel’s report – likely a further waiver of the privilege.
President Donald Trump on Wednesday threatened to take any impeachment battle with Congress to the Supreme Court.