Can the Constitution Handle Trump?
The President is systematically defying Congress. Whatever can be done about that?
Jeffrey Toobin contends “The Constitutional System Is Not Built to Resist Trump’s Defiance of Congress.”
Our constitutional system never contemplated a President like Donald Trump. The Framers anticipated friction among the three branches of government, which has been a constant throughout our history, but the Trump White House has now established a complete blockade against the legislative branch, thwarting any meaningful oversight. The system, it appears, may simply be incapable of responding to this kind of challenge.
The President has been candid about his plans for responding to investigations from the House of Representatives, which has been controlled by the Democrats since January. “We’re fighting all the subpoenas,” Trump said, last month, and the pace of his defiant actions has since quickened. The President and his Administration have defied congressional inquiries about security clearances, access to the full Mueller report, the President’s bank records, his tax returns, and the continuing investigation of his campaign’s ties to Russia. (This week, it was revealed that the Republican-led Senate Intelligence Committee has subpoenaed the President’s oldest son, Donald Trump, Jr., to testify before it again.) No White House documents have been produced to Congress; after the Attorney General, William Barr, made a contentious appearance before the Senate Judiciary Committee, last week, no other Administration officials have agreed to testify.
I fear Toobin undermines his case by conflating the personal and the public. Access to Trump’s personal financial information—and even his campaign and his son—are of a completely different piece from Congress’ ability to conduct oversight of the Executive agencies. And Trump is on much firmer ground in resisting the former.
Furthermore, while I agree with Doug Mataconis that Trump’s claims of Executive Privilege regarding the Mueller report are weak, Congress isn’t in fact entitled to see it in its entirety. Portions, including grand jury information, are supposed to be shielded. Attorney General Barr has made a less-redacted version available to select leaders, which the Democrats are boycotting on principle. Regardless, our system has a way to solve these sort of disputes: taking the matter to court. Toobin admits as much:
Disputes between the executive and legislative branches about document production and witness testimony invariably wind up before the judiciary, and judges look at these disputes on a case-by-case basis. If the courts proceed this way, the quality of the Trump Administration’s claims vary. For example, the Justice Department has a pretty good argument to withhold portions of the Mueller report from the Judiciary Committee. The law requires federal prosecutors to protect grand-jury secrets and to safeguard the integrity of pending investigations—and courts might well honor the Administration’s position to keep that redacted information from Congress. On the other hand, the argument made by the Treasury Department to withhold the President’s tax returns from the House Ways and Means Committee seems almost frivolous. The law could not be clearer. It states, “Upon written request from the chairman of the Committee on Ways and Means . . . the Secretary shall furnish such committee with any return or return information specified in such request.” Sometimes laws mean what they say: “shall furnish” means “shall furnish.”
Toobin is being disingenuous here. While the law requires Treasury to furnish tax returns on demand, it also requires a legitimate legislative purpose. The administration contends that a fishing expedition into the President’s personal finances does not qualify. I think Congress has the better case here but, again, that’s a matter for the courts to decide.
This kind of case-by-case approach has worked reasonably well in the past, even in contentious political environments. The Republican-controlled House of Representatives battled the Obama Administration over the coöperation of the Attorney General, Eric Holder, with an investigation of Operation Fast and Furious, a gun-trafficking program. The Democratic House struggled with the George W. Bush Administration over access to information about the firing of United States Attorneys. But this approach by the courts—adjudicating one Administration claim of defiance at a time—will miss the point in the current era. There has never been a President who directed an open campaign of total defiance against another branch of government. It is simply misleading to consider these claims in isolation from one another, because the President has acknowledged that they are part of a coördinated campaign. The law has no clear mechanism for adjudicating these claims together—but they belong together. Trump is leading a political campaign, and it calls for a political, not just judicial, response.
I’m not persuaded by this argument. All of the matters here are related in the sense that they amount to the President trying to make it difficult for Congress to investigate him. That’s obviously frustrating. But, so far as I’m aware, Trump is not routinely denying Congress the ability to conduct oversight of matters of public policy unrelated to his personal corruption.
And, of course, lawsuits aren’t the only tool Congress has at its disposal. Toobin anticipates this objection:
The most obvious political response to Trump’s defiance of Congress—and thus of the norms of constitutional history—is impeachment. One article of impeachment against President Richard Nixon accused him of failing “without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas.” But the Trump Administration is likely to fight all subpoenas in court and wait for resolution there; only then will it be possible to say whether the resistance to all subpoenas is “without lawful cause.” And these cases will drag on. Indeed, Administration lawyers know that bad arguments, as well as good ones, can tie up the courts for months, if not years. (The litigation over Holder and the Fast and Furious documents just ended—after seven years.) Democratic leaders in the House are already skeptical, for political reasons, of pursuing impeachment, and lingering, unresolved disputes in the courts will make a push to remove the President even less likely.
Again, this is unpersuasive. First, the fact that the previous administration successfully ran out the clock on Fast and Furious demonstrates how normal it is for administrations to fight what they perceive as partisan Congressional attempts to investigate them. Second, the notion that Congress can’t impeach the President for refusing to comply with subpoenas until the matters play out in court is absurd; they themselves are the arbiter of whether there’s a lawful cause.
So, after nearly two and a half centuries, Trump will create a new constitutional norm—in which the executive can defy the legislature without consequence. The only likely remedy, therefore, will lie with the voters, next year.
I’m going to go out on a limb here and predict that Trump’s recalcitrance in the face of Congressional attempts to investigate his personal finances won’t be the deciding issue in the 2020 race.
I share Toobin’s belief that the Framers never envisioned a Donald Trump wielding the Presidency. But he’s simply wrong that Congress lacks the Constitutional power to deal with the situation. They could impeach him at any time. They could refuse to fund his programs until he bends to their wishes. That they lack the votes to do either of these things isn’t a failure of the Constitutional system, it’s a political standoff.
I am with you for about half of this, James. But I will address only two points:
First, as long as Trump’s apparent assault on the emoluments clause remains a live issue, I think subpoenas directed to collateral sources like his bank accounts and his son have a highly credible legislative/oversight purpose and are a natural resort to stonewalling from the primary sources. This is how discovery with a recalcitrant opponent works.
Second, I think this administration if fighting a unique two-front strategy. One front relies on Dr. Taylor’s dictum that the Constitution relies on each branch of government fighting for itself, not a single party fighting for its executive across multiple branches. That strategy blunts the impeachment threat (and some think the administration’s judicial appointments block the judicial threat, a concern I do not yet share). Pushing impeachment aside, this administration primarily seeks to block the judicial threat by flooding the system. I agree with your observation that fighting all subpoenas does not necessarily address voluntary cooperation with investigations, though I am not as optimistic as you seem to be that this attitude will lead to such cooperation. But even assuming some cooperation, this administration position essentially reverts to “we will decide what you can investigate.” That is not how oversight is supposed to work.
I am not as alarmed as Toobin and others about where we are, but this two-front strategy does seem to be a new a unique assault on the Constitutional system of checks and balances.
@Joe:
Oh, we agree. I think Trump loses the fight in court. I just don’t think it’s a Constitutional crisis that he’s fighting. (Now, if he refuses to comply with a judicial order and Congress refuses to impeach, then we have a Constitutional crisis.)
But I don’t see that happening outside investigations relating to Trump’s personal corruption.
@James Joyner:
In a corrupt administration there is no line between the personal and the policy. How would you perform proper oversight on our relationships with Russia, Ukraine, Saudi Arabia without knowing whether the president was on their payroll? How do we know whether our relationship with Europe and China on trade is being corruptly influenced? Banking oversight without knowing Trump’s relationship with Deutchebank? Agriculture oversight without knowing whether members of the #TrumpCrimeFamily were lining their pockets by shorting soy beans? Tax policy? The SEC, the FTC, the DOJ, show me the part of government that would not tainted by a corrupt president?
Listen, when you take a psychopath to your bosom as the 46% have done, everything is about that psychopath, that’s the power they wield, they become a black hole sucking all light into themselves. There is not, and there never has been, anything remotely like normal policy work in the Trump administration. He doesn’t care, he has no interest in anything at all that is not about his own personal profit. He is literally not capable of thinking about any interest but his own, and given his obvious corruption and complete absence of morality or ethics, it is silly to assume that any part of his administration does anything other than serve Trump’s personal needs.
@michael reynolds:
I think this overstates things, in that the vast bulk of policymaking is routine, but I agree with your larger point. In one sense, Trump is doing what a normal President would do in shielding executive and campaign processes from partisan opponents in Congress. But he’s of course not normal in that he’s so incredibly corrupt.
But Toobin is wrong to say that the Constitution can’t handle all of this. It absolutely can. It just requires Congress to do its sworn duty. Instead, the Democrats who control the House have decided that impeachment is bad politics and the Republicans who control the Senate have decided that covering up the misdeeds of their President is good politics. They both likely right. But it’s nonetheless a shame.
@James:
The main reason they lack the votes to deal with the executive is actually very much the fault of the constitution: the way the Senate is allocated.
But I do think you are correct, as I have been thinking this week: the House will almost certainly have to impeach so as to enhance the grounds for its investigative powers.
Also: if the courts find a way to act quickly, then I have more confidence that the constitutional processes can achieve appropriate outcomes. If, however, it takes years and years that means Trump will have simply used the courts to avoid these processes entirely.
@James Joyner:
The C0nstitution has done as well as it has because it had a very jaundiced view of humanity. It was designed to balance lust for power against competing lusts for power, keeping all within the basic set of rules. Checks and balances. The Constitution does not work when the fundamental premise has been altered. We are no longer in a balance of power situation, one branch of government, Congress, has surrendered. That was not contemplated by the Founders.
To acknowledge that the Dems don’t have the votes is to acknowledge there was no #blue wave in the ’18 election, and to acknowledge that there was no #blue wave in ’18 is to acknowledge that a percentage of Democratic politics is based on lies.
I don’t think Dems are ready yet to acknowledge that. They seem to be learning all the wrong lessons from Trump.
@Steven L. Taylor: To clarify: they lack votes to do things like curtail policies or budgets because of the Senate. They likewise have zero chance of removal because of the Senate.
They have the potential votes to impeach, however.
When Trumpy the Clown is finally gone we’re going to need a whole slew of legislation to deal with similar problems in the future. We need the emoluments clause made effective with legislation. We need all manner of ethics legislation, disclosure rules, draconian penalties for taking foreign money, election security laws to ensure that our politicians are elected by Americans not Russians. We’ve been coasting on established mores and assumptions about how low a politician will go. We need hard, fast, enforceable laws to ensure we don’t do this again.
I’d also like to see a major advertising campaign-style education of the American people in their responsibilities as citizens. If we can’t teach people to think we can at least teach what is acceptable in civilized society.
Then we need to turn our foreign policy to causing some serious, lasting pain to Russia and the KSA. We should ratchet up sanctions on the Russians and strengthen Ukraine and the Baltic countries, perhaps including forward bases. Saudi Arabia should not see so much as another bullet from us until MBS is gone. But I suppose that’s another thread.
Oh, and we need to eliminate the pardon power for presidents, either by amendment or by legislation that boxes a future president in. We cannot have criminals with pardon power.
Can they? The administration is increasingly just moving money around and spending it on whatever Trump feels like rather than whatever it was actually appropriated for.
If it were just the constitution vs Tiny, I’d ahve no doubts. but it’s vs Tiny and a Senate not just willing but eager to defend El Cheeto with fanatical zeal. Thus far the judiciary has been mostly fair, except at the very top.
So I wouldn’t pale any bets on the Constitution.
So Executive branch is now to judge what the Legislative branch can even contemplate? Can the Constitution handle Trump? Certainly not. Then again, I no longer see the Constitution as a positive force: it’s not up to the task of securing freedom in the 21st century, nor allowing government to address any of the 21st century’s essential problems. It’s politics all the way down, and the only direction is down.
@Stormy Dragon:
Certainly he is trying to clearly subvert legislative will as it pertains to wall funding.
@michael reynolds:
No, we need realistic, strategic thinking.
Democrats couldn’t confirm Merrick Garland or stop Kavanaugh or win any seats in the Senate, but they’re going to push through this whole suite of post-Trump electoral reforms?
No, they’re not. They’re going to run 10 Senators in the presidential primaries and they’re all going to lose to Joe Biden.
@michael reynolds:
I also can’t imagine that the Founders contemplated the election of a corrupt/ retaliatory president. Your point about pardons is an useful example:
During the impeachment (House indictment) phase and during a Senate trial to remove a president, the president retains to pardon power until the actual final vote in the Senate to remove. So how long might that process take? During that time a president is capable of all sorts of mischief, including wholesale pardon of his allies as well as pardon of any other federal convicts/indicted …. just to piss off his adversaries! There seems to be no guardrails on the presidential prerogative to grant pardons for federal crimes including conviction of treason.
Do you think that DT is capable of mischief if he believes the waning moments of his presidency is hours away?
@ James:
James: I’ve looked through that provision of the tax code law that is cited (26 USC 6103) and can’t find any reference to “legitimate legislative purpose”.
As the strict constructionists would say: If it ain’t in the actual law, it ain’t the law.
@James Joyner:
But alas, you seem to be wrong about this because the next sentence reads
The Constitution is only paper. The real power relies on voters electing good people. We don’t. And as your last sentence notes that’s a shame.
The Administration’s position is that the law prohibits the release of grand jury investigation information, unless it meets one of very limited exceptions in the law. Nadler and his minions are trying to get the Attorney General and the DoJ to violate black letter law. There’s a new sheriff at the Department of Justice and wholesale violation of the law is no longer acceptable by department employees and officers. This upsets the Democrats who grew used to using the DoJ against their enemies during the Obama administration.
Accountability is coming.
We have sworn testimony from Trump’s lawyer at the time that Trump was deliberately misstating the value of assets on bank records to receive loans — a crime, and an impeachable offense.
I think there is a case to be made that potential impeachment isn’t a legislative purpose, since it isn’t about crafting legislation (it depends on what legislative means in this context), but the tax returns have also been directly subpoenaed. The Democrats would have a stronger hand if they opened impeachment inquiries.
I’m pretty sure that this is exactly wrong. I don’t know my federalist papers and other background discussions off the top of my head, but I definitely recall something from my high school civics class about the founders discussing a potentially corrupt and abusive president.
They never contemplated the modern Republican Party though.
The Republicans in the Senate are part of the situation.
@James Joyner: “I think this overstates things, in that the vast bulk of policymaking is routine,”
In the same sense that until it metastasizes, the vast majority of a body with lung cancer continues to function in a routine manner…
@James Pearce: “No, they’re not. They’re going to run 10 Senators in the presidential primaries”
I realize you don’t actually understand how anything works, but “the Democrats” are NOT running 10 Senators in the presidential primaries. 10 Senators — or however many there really are — are individually choosing to run in these primaries. You continue to believe — or pretend to believe — that there’s some shadowy force controlling everything done by every member of the party.
@JKB: “There’s a new sheriff at the Department of Justice and wholesale violation of the law is no longer acceptable by department employees and officers. ”
Nope, that privilege is reserved exclusively for the president, and this attorney general will cover for him every time he indulges in it.
The reality is, a government where a president elected by a minority of voters and 34 senators elected by less than 10% of the country means complete unilateral power is not going to remain stable long term.
And the longer it goes before this is corrected, the worse the eventual backlash is going to be.
@wr:
I’m simply saying that there’s all manner of policymaking—the lion’s share of all policymaking—that happens largely without presidential notice, much less direction. I don’t think Trump is stopping that.
@Steven L. Taylor:
I would support a constitutional amendment that says “After each census, once the Representatives are allocated, any state having no more Representatives than Senators, or less than 0.5% of the total enumerated population must find a buddy state and merge.”
Not only would it solve the problem, but we would get the term “Buddy State” into the constitution.
@JKB: Some days I get all the way to 5:00 PM and think “wow, almost a whole afternoon’s gone by, and I haven’t seen some egregiously stupid bullshit on the internet yet.”
And I can always count on you to rectify that.
@wr:
Ha. If there was some shadowy force controlling everything, there wouldn’t be 20 plus people in the race.
You don’t think it’s a problem that so many Dem senators want to leave the senate?
@Gustopher:
Given the fact that he is currently serving a prison sentence for, among other things, lying to Federal agents, Michael Cohen’s testimony alone isn’t going to convict anyone of anything in any court anywhere. There needs to be corroborating evidence. Possibly that evidence exists, but we don’t know that.
@Kit:
The question of whether or not there is a “legitimate legislative purpose” to the request for Trump’s tax returns will be up to the courts. That’s the system working the way it is supposed to.
@Doug Mataconis:
As I said above, there no stated restrictions in 26 USC 6103 that says or implies that the chair of the House Ways and Means needs a legislative purpose, much less a legitimate purpose.
So the only thing the court could do is create new law restricting what Congress has adopted and has been in place for nearly a 100 years. (That is, require a stated legislative purpose and then judge if that purpose is sufficiently “legitimate”) .
IMO, the way the system is supposed to work is the court upholds “black letter” law provided that law does not violate constitutional rights.
@JKB:
Again, you’re lying. You know as well as I do that Trump is a criminal and that talk of accountability at Trump’s DOJ is ludicrous. You know none of that is true, which makes your comments meaningless. Just wind. You were conned by Trump and now you lack the integrity to admit it. And dude, everyone here knows it. You’re fooling no one.
@Doug Mataconis:
Really? Is this the case of the Constitution laying out what legitimate legislative purposes are, and stating that the courts can judge as to the constitutionality of any legislative action, or is it the case that the courts have written themselves into the equation?
@Kit:
It’s a combination of both.
Or would you rather have a situation where Congress can request, and make public, any person’s tax return for any reason?
@Bob@Youngstown:
As I have written here, the Supreme Court has made clear that Congress does not have the authority under the Constitution to request any document for any reason.
@Doug Mataconis:
Unless I’m mistaken, the law itself states under what conditions the tax returns can be provided and how they must be treated. That’s not the issue. The issue is: what in the Constitution gives the courts the right to decide what Congress may consider?
@JKB: It’s almost as if everytime you speak, you’re doing a demonstration of Orwell’s Politics and the English Language. Wow!
The “all this” that the Constitution can’t handle includes “…Republicans who control the Senate [who] have decided that covering up the misdeeds of their President is [their sworn duty].”
@Kit:
See Marbury v. Madison 5 U.S. (1 Cranch) 137 (1803)
@Doug Mataconis:
I’ve read that and re-read it, and I fail to see how it applies. The argument is not that seeing tax returns is unconstitutional, but rather that in this case before us it serves no legislative purpose and so cannot be undertaken.
@James Pearce: “There was no ‘blue wave’…”
Here’s the thing, if the sign of a *real* blue wave is that government is completely transformed after the unicorn stampede, you’re always going to end up disappointed. Same thing with oil tankers and container ships, they can’t make 90 degree turns (well I suppose they can theoretically, but…).
My own personal bias also goes toward the idea that *wave* outcomes create something more like a sea change event than this one did. From that perspective, America doesn’t have wave outcomes–we’re basically market capitalists who tilt the outcomes toward the owners of the capital no matter which party wins. The changes that do happen tend to be pretty incremental–Obamacare being a prime example in that complete government takeover of one-seventh of the US economy actually looks in real life like government paying the bulk of the premiums for the lowest income Americans who don’t qualify for relief through Medicaid. The Democratic-controlled House has a similar disparity between what people imagine they’re seeing and what they’re really looking at. Is it a significant change? Yes and no. Yes it did significantly shift an element of the balance of power. Is government going to suddenly start functioning? No, but it has a better chance now than it did 10 months ago. And that’s not nuthin’.
@Kit: Marbury v. Madison established the power of judicial review, i.e., the power of the Court to declare a law unconstitutional.
While I recognize the point Doug is making about the broad powers of the Court. I agree with those who are saying that if the law about tax returns does not contain strictures, I am not sure that any court wouldn’t follow the clear letter of the law.
@Kit:
You are not mistaken, 26 USC 6103 (f):
There is no mention of a requirement of legislative purpose, legitimate or otherwise.
I followed the link and read about the two cases cited, and I don’t see how either is relevant here. Both are about the limits of Congressional ability to compel testimony by individuals in a Congressional investigation. Neither addresses, directly or indirectly, limits on Congressional ability to execute statutory authority over the Executive Branch. The law clearly requires that Treasury turn over the tax information of anyone at all, should Congress request it, full stop. There is no testimony by an individual involved; this is an intragovernmental matter.