The Dangers of Constitutional Hardball

(Photo: Gage Skidmore)

For decades, the executive branch has recognized its constitutional obligation to accommodate legitimate congressional oversight requests. But the Trump administration’s actions over the past week and a half suggest that it may have decided to adopt a strategy of across-the-board stonewalling, violating a half-century of norms and creating a political and constitutional quandary for lawmakers, as American Oversight Chief Counsel John Bies writes over at Lawfare blog.

Bies notes that while nearly every recent administration has seen a few contentious issues leading to disputes between Congress and the executive branch over executive privilege, the vast majority of such disagreements were resolved through the accommodations process. But the White House’s efforts to block multiple congressional investigations with limited attempts to negotiate with Congress — especially given President Donald Trump’s “strident statements” and his “willingness to transgress norms and conventions” — could be “a harbinger of a sharp turn to … a maximalist resistance strategy.”

Indeed, the president’s claim of “We’re fighting all the subpoenas” doesn’t seem so far off: Last week, the White House instructed Personnel Security Director Carl Kline not to show up for a deposition in the House Oversight and Reform Committee, which has been investigating the administration’s process of granting security clearances to Jared Kushner and others over objections of career personnel. And after the committee subpoenaed financial disclosure information from the accounting firm of Trump’s businesses, the Trump Organization filed suit to prevent the firm from complying.

Treasury Secretary Steven Mnuchin also failed to turn over Trump’s tax returns by the deadline set by the House Ways and Means Committee. And Attorney General William Barr instructed Justice Department official John Gore not to comply with a subpoena to testify last Thursday about the department’s involvement in the decision to add a citizenship question to the census (we also are suing the Justice Department for related information).

The White House has said it intends to fight, possibly by asserting executive privilege, a House Judiciary Committee subpoena for the testimony of former White House Counsel Don McGahn, who figured prominently in Special Counsel Robert Mueller’s report on Russian election interference and obstruction of justice. Meanwhile, Attorney General Barr’s scheduled appearance before the House Judiciary Committee to discuss the Mueller investigation is uncertain as of today, with Barr objecting to the proposed format of the hearing.

If all these uncooperative actions do indicate the administration has decided to play “constitutional hardball” instead of engaging in good faith efforts to negotiate and reach “reasonable accommodations” consistent with the executive branch’s long-standing recognition of Congress’s oversight authority, then “the country is truly at an important constitutional moment that has the potential to shape the relationship between the branches in significant ways for the foreseeable future.” Bies writes:

The adoption of constitutional hardball tactics places other constitutional actors in a difficult quandary. Actors on the receiving end are often confronted with a choice between two unappealing options: acquiesce, and accept the changes in the constitutional system wrought by the dissolution of the constitutional understandings and conventions that have been broken; or escalate, and enter a high-stakes constitutional confrontation that may be politically unappealing. When the president is the one adopting a constitutional hardball tactic, there is an additional complication: Congress’s institutional interests may be at cross-purposes with the political interests of at least those members who share the same party as the president, which creates cross-pressures that can confound Congress’s ability to respond in an effective manner.

This is the choice facing the House of Representatives—and, more specifically, House Democrats—if the administration has, indeed, adopted a strategy of resisting oversight across the board.

You can read more here.

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