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.
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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.