The Trump Administration’s Disrespect for Constitutional Checks and Balances Earns It Congressional Subpoenas


American Oversight

This week, two House committees issued high-profile subpoenas to the Trump administration. The Judiciary Committee has called for the full report of Special Counsel Robert Mueller, and the Oversight Committee’s subpoenas relate to changes to the 2020 census and to the committee’s investigation of a whistleblower’s report that the White House was issuing security clearances against the advice of career security personnel.

In each of these three investigations, Congress had asked for documents, and in each case, the executive branch tried to deflect or outright refused the requests. With regard to the Mueller report, the House subpoena is preemptive. But in the case of the security clearance subpoenas, the White House has argued that Congress has no right to the requested information, providing an interesting study in the breakdown of the so-called “accommodation process.”

The accommodation process is meant to encourage good-faith negotiation between the legislative and executive branches to find compromise between Congress’s oversight authority and the administration’s confidentiality interests. In deciding to issue subpoenas this week, Congress has, in essence, determined that the White House abandoned the negotiation process in favor of a contest of political will.

The breakdown is clear: The White House counsel has argued that it does not need to answer Congress’s requests for information because the executive branch has the “exclusive” power to grant security clearances and therefore Congress has no “legitimate legislative purpose” for asking for the information. Put another way, the White House is saying, “None of your business.” But the administration’s uncooperative position is not only legally dubious; it also stands in the way of Congress’ important constitutional functions.

The executive branch has jealously guarded the security clearance process for decades, dating back at least to the 1988 Supreme Court case Navy v. Egan. There, the Court said that “the decision to grant or deny a security clearance is a discretionary function that belongs exclusively to the Executive Branch.” But the Court did not explicitly hold that Congress could not regulate the clearance process if it chose to do so. Indeed, the Court noted that deference to the executive was in part due to congressional silence: “unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.” While the Court emphasized that outsiders should not be able to second-guess national security decisions of executive branch experts with “necessary expertise in protecting classified information,” the Trump White House has been accused of systematically overruling the clearance recommendations of those same experts. Moreover, the case says nothing about whether executive branch actions that risk national security might provide a ground for Congress to consider impeachment, an important function of Congress under the Constitution.

In most cases, the Justice Department releases information based, at least in part, on the acknowledgment that under our constitutional system, Congress has the right and obligation to check executive power and abuse — including through investigation. In addition to using its broad oversight powers to check the executive branch, Congress also can use those powers to develop critical political and legislative remedies. The reason to release information about the security clearance process to Congress is not so that Congress can simply duplicate the efforts of executive branch decision-makers; rather, lawmakers’ scrutiny has distinct constitutional underpinnings and purposes.

In the matter of the security clearance process, Congress is clearly interested in whether national security information is being protected from those who cannot be trusted to keep it safe. If not, Congress may try to hold the responsible parties accountable, as well as propose reforms to add new guardrails to the system (for example, by requiring new protocols for adjudicating clearances or congressional notice any time a security clearance is granted over objections). The White House position apparently is that it won’t even have a conversation about the topic.

There are few areas completely cordoned off from constitutional checks and balances, making the White House’s decision to declare the issue so clear-cut as to foreclose any oversight of the security clearance process confusing. Whether or to what extent Congress could regulate the process is contested, and Congress has never agreed that it lacks such jurisdiction. For decades, presidents have guarded their prerogative, including by compromising to specific oversight requests rather than picking a legal fight and teeing up the issue for the courts to rule on Congress’ oversight powers. The White House’s approach reveals its stridency and aggressiveness with respect to oversight. And by inviting subpoenas, it may find its short-term delays come at a long-term cost.

Ideally, the administration would reengage with the accommodations process and reach negotiated deals to get Congress the information it needs while protecting its longstanding confidentiality interests. The accommodations process, and the compromises that stem from it, should reflect each branch’s respect for the other’s independence and importance in our system of government.

Right now, the Trump administration is operating from a posture of disrespect, testing what it can get away with politically instead of basing its decisions on what is right. The subpoenas issued this week will shape the future of transparency in the Trump presidency in terms of what the public gets to see, what the executive branch gets to hide, whether Congress will be able to perform its oversight responsibilities — and whether Congress is up for the job.