A Dangerous Road
Some Democrats are saying that the disputes between Congress and Trump have caused a constitutional crisis. Republicans respond to the effect that if there is a crisis, it is caused by the Democrats who are overreaching for political gain. Regardless of your political persuasion and setting aside the question of motive, there is a looming crisis for so long as Congress insists upon what it strongly believes is its right and obligation to gather evidence, investigate and exercise oversight, and Trump responds by saying “No” to everything.
I think it would be helpful if we looked at this legal problem by disregarding its present context. If we do that, the legal question then becomes one of defining the boundaries of power of the co-equal branches of government.
I suspect the general public believes all of these legal issues must have been decided at some time in the past and that the answers are black and white. This is actually not the case.
In point of fact, many issues regarding the potential limits of Presidential power, the extent of the rights and powers of Congress to investigate and exercise oversight and, in general, the exact boundaries of our checks and balances system of constitutional government have not all been decided. This is not an accident. Courts have prudently avoided as many of these issues as possible and Presidents and Congress have generally to avoid asking the courts to decide these complex issues. Why? Because definitive answers could have devastating consequences to our democracy and the accepted balance of powers. As a practical matter, it is usually not a good idea to ask a question unless you can live with a negative answer.
The power of Congress to investigate is not specifically enumerated in the Constitution. It is an implied power which is supplementary to its legislative responsibilities and to its power of impeachment. The first congressional investigation took place in 1792. The first Supreme Court case involving the power to investigate came in 1881. The Courts have historically been deferential to Congress in determining the latitude of its investigations. The question of whether Congress is exceeding its implied authority to investigate ordinarily comes before the Supreme Court when a witness refuses to testify or refuses to comply with a subpoena.
As the current situation is now postured, if Trump continues to insist that witnesses not testify and that all documents be withheld, Congress will have to go through the process of taking action to hold witnesses in contempt. That action will set the stage for a legal proceeding that the courts can adjudicate. By the time Congress acts to enforce its right to investigate and the courts adjudicate the legal issues, a substantial amount of time will pass.
It is unclear what Trump’s motives are. Does he just want to buy time? Is he trying to, in fact, create a crisis whereby he hopes the judicial system (his Supreme Court) declares that a sitting President doesn’t have to answer to Congress? Is this part of his election strategy? Is he trying to protect his family? Is he trying to provoke Congress into beginning impeachment proceedings? Does he have a strategy at all beyond survival?
There are those, and Attorney General Barr is one of them, who believe a President has very expansive powers. In other words, they don’t believe that the branches of government are co-equal. They would probably like to set the stage for a U.S. Supreme Court decision which would, in essence, place the President above the law and beyond the oversight of Congress. This would destroy the constitutional system of checks and balances and create the “imperial presidency” that the Founders so feared.
There are a lot of cards to be played, but it is not too early and not too dramatic to say that there is an existential threat to the Constitution if we continue to travel down this dangerous road.
It is in the best interest of both parties and of democracy itself to find a different path.