Why His Effort to Defy
Congress Is Unlikely to End How He Wants
Donald Trump thinks
that he can thumb his nose at Congress because the federal courts will protect
him. But that’s not the way our Constitution works. It’s also not the way the courts have held in cases going to the early days of our Constitution.
But since tens of
millions of Americans take Trump’s words as gospel, let’s look at the facts,
starting with Trump’s blanket declaration of noncooperation with House
inquiries.
“There is no reason to
go any further, and especially in Congress where it’s very partisan — obviously
very partisan,” Trump told The
Washington Post Tuesday night in declaring that cooperating
with House investigations is not going to happen.
Nowhere does
partisanship play a role in our Constitution, written by men who largely
disliked political parties as a concept. Many presidents have had to deal with
the opposition and at times a hostile opposition, among them presidents Andrew
Johnson, Richard Nixon, Bill Clinton and Barack Obama.
Trump’s declaration is
an extension of his dictatorial approach to the presidency. Telling Democrats
in Congress to pound sand has been Trump policy almost from the day he took
office.
Trump’s declaration also was not new, but an extension of his dictatorial approach to the presidency. Telling Democrats in Congress to pound sand has been Trump policy almost from the day he took office.
Consider the lede
of this June 2017
Politico piece and note that the sourcing is exclusively from
Republicans:
“The White House is
telling federal agencies to blow off Democratic lawmakers’ oversight requests,
as Republicans fear the information could be weaponized against President
Donald Trump. At meetings with top officials for various government departments
this spring, Uttam Dhillon, a White House lawyer, told agencies not to
cooperate with such requests from Democrats, according to Republican sources
inside and outside the administration.”
Trump imagines that
with two appointees on the nine-member Supreme Court he has a shield from
Congress.
This tweet, part a
barrage that shows how panicked Trump has become, is noteworthy for two reasons
beyond proving his ignorance of our Constitution.
Second, in declaring
himself innocent, Trump used the language of skels and
mobsters in falsely tweeting that Mueller “didn’t lay a glove on me.”
As the third-generation head of a white-collar crime family that has partnered with Mafiosi, Russian mobsters and other criminals throughout his life, Trump’s language is revealing of how he never left that milieu.
As the third-generation head of a white-collar crime family that has partnered with Mafiosi, Russian mobsters and other criminals throughout his life, Trump’s language is revealing of how he never left that milieu.
Had Trump ever read
our Constitution he would know that under Article I, Section 3, Clause 6 of our
Supreme Court has only a single and very limited role in impeachment
proceedings. In a Senate trial, the presiding officer will be the Chief Justice
of the United States, currently John Glover Roberts Jr.
That’s it. Our Supreme Court has no other authority in any impeachment proceeding. I doubt it would even accept a petition from Trump. If it does, I expect that it would dismiss the petition out of hand.
Our Supreme Court has
been quite clear going back to the earliest days of our republic that Congress
has very broad powers to investigate and conduct oversight of the executive
branch, which is charged with doing what Congress instructs.
Legislative Purpose
Until 62 years ago the
investigative power of Congress was thought to be unlimited. But in an important
1957 case known as Watkins during Congressional witch hunts for
communists in the U.S. Army, Hollywood, unions and elsewhere the court imposed
one limit, which has no benefit for Trump.
“The power of the
Congress to conduct investigations is inherent in the legislative process,” the
Supreme Court held in Watkins.
“That power is broad.
It encompasses inquiries concerning the administration of existing laws, as
well as proposed or possibly needed statutes. It includes surveys of defects in
our social, economic or political system for the purpose of enabling the Congress
to remedy them. It comprehends probes into departments of the federal
government to expose corruption, inefficiency or waste.”
The Watkins case
involved a United Auto Workers organizer who had been a Communist Party member.
Some details of the case are important to understand why Trump’s reliance on it
to save him from investigations by Congress is, well, poppycock.
The government
acknowledged that in testifying before the Senate a “more complete and candid
statement of… past political associations and activities can hardly be
imagined.”
Watkins declined only
to name names of people who had quit the party. Watkins argued that such
questions served no legitimate purpose.
Seven Supreme Court
justices agreed.
“No inquiry is an end
in itself; it must be related to, and in furtherance of, a legitimate task of
the Congress,” the majority held. “Investigations conducted solely for the
personal aggrandizement of the investigators or to ‘punish’ those investigated
are indefensible.”
That cannot help Trump
because he has given Congress ample reasons to review his tax returns, his
businesses and what I call the “eyes wide open blind trust” that owns them. The
Mueller report described as at least 10 specific attempts to obstruct justice.
Defying the Supreme
Court
Trump’s blanket
declaration of no cooperation with Congressional investigations, at least by
the House, also defies the Supreme Court holding in Watkins.
“It is unquestionably
the duty of all citizens to cooperate with the Congress in its efforts to
obtain the facts needed for intelligent legislative action,” the Watkins court
held.
“It is their
unremitting obligation to respond to subpoenas, to respect the dignity of the
Congress and its committees, and to testify fully with respect to matters
within the province of proper investigation.
This, of course, assumes that the constitutional rights of witnesses will be respected by the Congress as they are in a court of justice.”
This, of course, assumes that the constitutional rights of witnesses will be respected by the Congress as they are in a court of justice.”
One of the few
presidents who were intellectuals, Woodrow Wilson, would also not support
Trump. If only we could bring our 28th president back from the
grave. So, we must rely on what he wrote in 1885 while earning his political
science doctorate at Johns Hopkins University.
“Quite as important as
legislation is vigilant oversight of administration,” Wilson declared.
“It is the proper duty
of a representative body to look diligently into every affair of government and
to talk much about what it sees. It is meant to be the eyes and the voice, and
to embody the wisdom and will of its constituents,” Wilson wrote in Congressional Government: A Study in
American Politics, available free online.
“The informing
function of Congress should be preferred even to its legislative function,”
Wilson added, words that Trump would find troubling if had the intellectual
capacity to study the history of the presidency and Congress.
The fact is that “Congress
has the authority to create, abolish, reorganize, and fund federal departments
and agencies. It has the authority to assign or reassign functions to
departments and agencies and grant new forms of authority and staff to
administrators. Congress, in short, exercises ultimate authority over executive
branch organization and generally over policy.
Congress’ Oversight
Duties
The 2014 Congressional Oversight Manual notes
that “oversight of the executive is designed to fulfill a number of purposes:
making sure the president complies with the intent of Congress; operates the
government efficiently and effectively; evaluating program performance;
ensuring the president doesn’t usurp powers held by Congress; that the
president conducts himself and his administration with integrity; is competent;
administers our government in the public interest rather than his own; and
protects the people’s Constitutional liberties and rights.
There are at least 10
more oversight duties, according to the Congressional Research Service report.
There are only two
ways that Trump can get away with evading his Constitutional duties.
The first is to hope
that he gets lucky and his cases are heard by the one in nine federal judges
whom he has appointed, a group mostly known for their ideological opposition to
unions and the “general welfare” principle of our Constitution and, in some
cases, hostility to equal protection under law for racial, religious, gendered
and other minorities.
They should follow the
principle, beloved by judicial conservatives, known as stare decisis.
That’s Latin for following legal precedents unless there is clear reason to
overturn past decisions.
His second hope is to
win another term, in which case he will have run out the clock on federal
crimes because they generally have a five-year statute of limitations. Trump
has already made clear he plans to stay in office until he dies if he can get
away with it.
We’ll know next
November whether enough voters prefer a Trump dictatorship to liberty to make
that happen.
