Robert Reich. (photo: Unknown)
30 April 19
The president is treating Congress with contempt. This cannot stand – and Congress must fight back
e’re fighting all the subpoenas,” says the person who is supposed to be chief executive of the United States government.
In other words, there is to be no congressional
oversight of this administration: no questioning officials who played a
role in putting a citizenship question on the 2020 census. No
questioning a former White House counsel about the Mueller report.
No questioning a Trump adviser about immigration
policy. No questioning a former White House security director about
issuances of security clearances.
No presidential tax returns to the ways and means
committee, even though a 1920s law specifically authorizes the committee
to get them.
Such a blanket edict fits a dictator of a banana
republic, not the president of a constitutional republic founded on
separation of powers.
If Congress cannot question the people who are making
policy, or obtain critical documents, Congress cannot function as a
coequal branch of government.
If Congress cannot get information about the executive
branch, there is no longer any separation of powers, as sanctified in
the US constitution.
There is only one power – the power of the president to rule as he wishes.
Which is what Donald Trump has sought all along.
The only relevant question is how to stop this dictatorial move. And let’s be clear: this is a dictatorial move.
The man whose aides cooperated, shall we say, with
Russia – the man who still refuses to do anything at all about Russia’s
continued interference in the American political system – refuses to
cooperate with a branch of the United States government that the
Constitution requires him to cooperate with in order that the government
function.
Presidents before Trump occasionally have argued that
complying with a particular subpoena for a particular person or document
would infringe upon confidential deliberations within the executive
branch. But no president before Trump has used “executive privilege” as a
blanket refusal to cooperate.
How should Congress respond to this dictatorial move?
Trump is treating Congress with contempt – just as he has treated other democratic institutions that have sought to block him.
Congress should invoke its inherent power under the
constitution to hold any official who refuses a congressional subpoena
in contempt. This would include departmental officials who refuse to
appear, as well as Trump aides. (Let’s hold off on the question of
whether Congress can literally hold Trump in contempt, which could
become a true constitutional crisis.)
“Contempt” of Congress is an old idea based on the inherent power
of Congress to get the information it needs to carry out its
constitutional duties. Congress cannot function without this power.
How to enforce it? Under its inherent power, the House
can order its own sergeant-at-arms to arrest the offender, subject him
to a trial before the full House, and, if judged to be in contempt, jail
that person until he appears before the House and brings whatever
documentation the House has subpoenaed.
When President Richard Nixon tried to stop key aides
from testifying in the Senate Watergate hearings, in 1973, Senator Sam
Ervin, chairman of the Watergate select committee, threatened to jail
anyone who refused to appear.
Congress hasn’t actually carried through on the threat since 1935 – but it could.
Would America really be subject to the spectacle of
the sergeant-at-arms of the House arresting a Trump official, and
possibly placing him in jail?
Probably not. Before that ever occurred, the Trump
administration would take the matter to the supreme court on an
expedited basis.
Sadly, there seems no other way to get Trump to move.
Putting the onus on the Trump administration to get the issue to the
court as soon as possible is the only way to force Trump into action,
and not simply seek to run out the clock before the next election.
What would the court decide? With two Trump appointees now filling nine of the seats, it’s hardly a certainty.
But in a case that grew out of the Teapot Dome scandal in 1927, the court held that the investigative power of Congress is at its peak when lawmakers look into fraud or maladministration in another government department.
Decades later, when Richard Nixon tried to block the
release of incriminating recordings of his discussions with aides, the
supreme court decided that a claim of executive privilege did not
protect information pertinent to the investigation of potential crimes.
Trump’s contempt for the inherent power of Congress
cannot stand. It is the most dictatorial move he has initiated since
becoming president.
Congress has a constitutional duty to respond forcefully, using its own inherent power of contempt.