It was an extraordinary week in an extraordinary presidency. The Trump administration shifted from merely committing individual acts that flout the rule of law to a series of coordinated actions by the White House and the Cabinet in pursuit of that goal.
Let’s review key events.
On Tuesday, to the astonishment of the presiding judge, arguments denying Congress’s constitutional right to exercise oversight of its co-equal executive branch of government were made with apparent seriousness in a Federal court of law in Washington DC by the president’s personal lawyer.
On Wednesday, the White House counsel—a public servant—wrote to the Chairman of the House Ways and Means Committee and made the same, legally preposterous, argument. In the process, any distinction between the legal team defending the president personally and the apparatus of government evaporated.
On Thursday, the Attorney General appeared on Fox television and defended the president’s oft-repeated but evidence-free claim that the duly constituted Mueller probe, which has revealed repeated communications of the Trump campaign with Russia and multiple obstructions of justice by the president, was a “witch hunt” and a “hoax.”
Deliberately ignoring the extensive evidence laid out in the Mueller Report, the Attorney General also said that Trump was justified in characterizing the investigation “as a politically motivated fishing expedition.” In the absence of any fresh evidence, the Attorney General also announced he is investing significant resources into finding out if “government officials abused their power and put their thumb on the scale” when launching the Russia probe.
On Friday, Treasury Secretary Mnuchin wrote to Chairman Neal of the Ways and Means Committee and said that he was refusing to comply with a subpoena that the IRS provide Trump’s tax returns in accordance with black letter law drafted explicitly in the 1920s to deal with the questionable acts of presidents. Mnuchin wrote he was not acting alone but rather on the legal advice of Attorney General Barr.
The same day, in an interview with the Wall Street Journal, Attorney General Barr reiterated his evidence-free claim that the FBI was “spying” on the Trump campaign during the 2016 election.
These actions by the White House and Cabinet officers, in apparent violation of established practice and the U.S. Constitution, reveal an alarming degree of deliberateness and orchestration. They reflect the president’s vow to systematically stonewall “all” requests and subpoenas from the U.S. Congress, in defiance of the American system of checks and balances among the three co-equal branches of government. They constitute an unprecedented coordinated assault on the rule of law.
The Challenge To Congressional Oversight
The challenge to Congressional oversight is both surprising and alarming. On Tuesday, Judge Amit P. Mehta of the District Court for D.C. expressed his astonishment that such an argument was made in a Federal court. Trump’s personal lawyer William S. Consovoy argued that the Constitution does not give Congress the power to investigate potential presidential corruption because determining whether someone broke the law is a function reserved exclusively for the executive branch.
Judge Mehta pointed out that the argument implied that many famous historical congressional oversight investigations such as Watergate and Whitewater were illegal. Judge Mehta also referred to significant Supreme Court case law showing that Congress does have the authority to perform oversight investigations to inform itself and the people about issues of public importance, in addition to its lawmaking function.
But Consovoy persevered in his argument and argued that no legislation that Congress might conceivably enact about the presidency could be constitutional because the Constitution limits the legislative branch’s ability to impose any limits on the presidency.
Judge Mehta did not seem to appreciate the idea that he should determine that there was no conceivable law that Congress might enact that would pass constitutional muster, saying, “You don’t suggest I have to undertake a constitutional review of legislation that does not exist?”
Judge Mehta gave the parties until the end of the week to make additional legal arguments and indicated that he would issue his decision imminently. An appeal is expected.
The White House Counsel’s Letter
Undeterred by Judge Mehta’s onslaught, on Wednesday, White House Counsel Pat Cipollone wrote a letter making the same far-fetched legal arguments in a letter to the Jerrold Nadler, Chair of the House Judiciary Committee.
On Thursday, Chairman Nadler wrote in reply that Trump cannot simultaneously claim “the President cannot be indicted by the Department of Justice and that Congress cannot investigate him.” The argument would put Trump “above the law.” Demanding that the House stop its inquiry is “inconsistent with the most basic principles underlying our constitutional system of government.”
The Speaker of the House, Nancy Pelosi, also described the White House counsel’s letter as “outrageous, a joke, beneath the dignity of the presidency of the United States, in defiance of our Constitution.”
Speaker Pelosi also pushed back on the argument that Cipollone outlined in his letter — that Congress can’t ask any questions of the administration unless it has a legislative purpose. “One of the purposes that the Constitution spells out for investigation is impeachment,” Pelosi said. “And you can say — and the courts would respect it if you said — we need this information to carry out our oversight responsibilities and among them is impeachment. It doesn’t mean you’re on an impeachment path, but it means if you had the information, you might.”
The Treasury Secretary And The Attorney General Defy A Subpoena
Last month, Richard E. Neal, chairman of the Ways and Means Committee, had demanded six years of Trump’s personal and business returns, from 2013 to 2018, in letters to the administration.
In the week before last, Rep. had issued subpoenas that gave Mnuchin and Internal Revenue Service Commissioner Charles Rettig until Friday at 5 p.m. to turn over Trump’s financial records.
On Friday, Treasury Secretary Mnuchin wrote to Chairman Neal of the Ways and Means Committee that the IRS and the Treasury Department, saying that they were refusing to comply with the subpoena despite the law that the IRS “shall” provide tax returns when so demanded, again because the request “lacks a legitimate legislative purpose.”
Mnuchin’s letter said that he was not acting alone but rather on the legal advice of Attorney General Barr, although the actual advice was not disclosed.
The suggestion that the subpoena is invalid because it “lacks a legitimate legislative purpose” is even more ludicrous here than it is in the case before Judge Mehta. Here the statute is explicit that the legal duty to provide tax returns to the Congressional Committee is absolute and not dependent on any finding of fact or declaration of purpose. Moreover, the law was explicitly drafted in the 1920s to deal with the questionable conduct of presidents, which is exactly the current situation.
The Dangers Of Complacency
It is now apparent that Congressional requests for information and subpoenas are being resisted, not on a case-by-case basis or on their merits, but instead, across the board, in a coordinated denial of the function of oversight envisaged by the separation of powers and the Constitution.
In effect, the president has now mobilized the organs of government in an orchestrated effort to undermine the Constitution and to make himself immune from investigation or indictment and hence above the law—the very thing that the U.S. Constitution was meant to prevent.
In the face of these coordinated efforts to thwart the law, Cabinet officers are supporting and enabling the president's actions. Yet there are no demonstrations in the streets. Nor are there any motions in Congress to impeach the president and his cabinet. Apart from Senator Mitt Romney and Representative Michigan GOP Rep. Justin Amash, no Republican in Congress has spoken out against the outrages.
Even in the press, there has been little recognition that the administration has crossed a new line in undermining the essence of good government. The perilous developments for the rule of law were overshadowed by news of the administration’s possible plans to launch a war with Iran; the president’s befriending of a visiting authoritarian leader from Europe and the competition among Southern states to defy settled law on abortion.
Yet the coordinated actions of the Trump White House and the Cabinet to undermine the rule of law constitute a graver threat to the long-term well-being of the nation than any of those outrages. The administration’s actions constitute an accelerating assault on constitutional government itself and a significant step on the path towards authoritarian rule. The worry is that the journey along that path, as Ernest Hemingway noted in a different context, “happens gradually and then suddenly.”
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