Trump's Defiance of Congress Leaves Democrats With a New Dilemma

The president is openly defying Congressional subpoenas.

Even the announcement was delayed as long as possible.

It has seemed likely since before Democrats won the House of Representatives in November, promising to demand President Donald Trump’s tax returns, that the White House would refuse to hand the documents over without a fight. But after weeks of dickering and assurances that Treasury Secretary Steven Mnuchin was considering the legality of the request, the White House finally said, with just hours to go, that it would not produce the documents by the Tuesday deadline set by House Ways and Means Committee Chairman Richard Neal.


Also on Tuesday, a former White House official in charge of security clearances did not appear to testify to the House Oversight Committee, after the administration instructed him not to comply with a subpoena. Committee Chairman Elijah Cummings said he’d move to hold the former official, Carl Kline, in contempt of Congress. The Washington Post also reported Trump would fight a subpoena calling former White House Counsel Don McGahn to testify. And on Monday, the White House filed a lawsuit against Cummings and his own accounting firm to try to block the firm, Mazars USA, from handing over information about Trump’s finances.

“There is no reason to go any further, and especially in Congress where it’s very partisan—obviously very partisan,” Trump told the Post Tuesday evening, saying he would block any administration staffers from speaking to Congress. “I don’t want people testifying to a party, because that is what they’re doing if they do this.”

Unstoppable force of Democratic investigations, meet the immovable object of Trump administration stonewalling. Or something like that—only with the investigations stoppable, and the administration movable.

Trump’s zero-cooperation policy is unworkable and disconnected from law and precedent. There’s no denying that House Democrats have partisan motives, but some party always controls the chamber. The Constitution doesn’t provide for congressional oversight of the executive branch only when there’s unified control of Congress and the White House—though quite a few past presidents probably wish it did.

More broadly, the Trump administration’s attempt to slow-walk the investigations isn’t especially surprising, and it might be the most strategically savvy step it can take. Even so, there’s a good chance that most or even all of the attempts to block the investigations will eventually come to naught. The lawsuit that tries to block Mazars from complying with the subpoena relied in part on a precedent dating to 1880—which was overruled in 1927, the Postnoted.

The case on the tax returns is flimsy, too. Though the law under which the Judiciary Committee is requesting the returns hasn’t been tested in court, it appears to give the committee the authority to get the returns. The White House claims that Trump can’t release his returns because he’s under audit from the Internal Revenue Service, but that’s a red herring. First, there’s no law that bars anyone from releasing a return that’s under audit. Second, there’s no evidence Trump is actually under audit; his former attorney Michael Cohen told the House Oversight Committee in February that he did not believe Trump was under audit. In any case, Trump said during the 2016 campaign that he’d release his taxes once they were no longer being audited, but after the election, White House officials argued the vote proved there was no need to release them. The administration isn’t even trying to make its stories consistent or persuasive.

But it matters less whether the administration loses legal fights over investigations than when it loses them. Democrats are searching for incriminating information about Trump that might help stymie his agenda and lead to his defeat in the 2020 election. If White House stonewalling can push the resolution of these cases back beyond Election Day, it will have achieved its purpose.

Trump, of course, wouldn’t be the first president to strategically stonewall. President Bill Clinton’s legal team successfully stalled the sexual-harassment suit brought by Paula Jones until after the 1996 election, when the president agreed to settle.

Who knows how long someone like Carl Kline, now a Defense Department employee, will be willing to risk being held in contempt of Congress? But if Mnuchin were held in contempt, he could take heart from the example of Attorney General Eric Holder, who was held in contempt in 2012, with little real effect.

The stonewalling creates a dilemma for Democrats. Party leaders in Congress are reluctant to begin impeachment proceedings against Trump, and they have presented investigation as an alternative (and possibly a prelude) to impeachment. Investigations, however, depend on successful subpoenas. As discussed above, Democrats stand a good chance of winning if they choose to litigate administration stonewalling. That would preserve the system and create good precedents for future congressional investigators. It might also come too late to make a difference in 2020.

So what then? If the House opts for a less conventional head-on fight against the administration, it might get faster results. But it might also yield nothing more than a big fight with the White House over process and accusations of overreach. In other words, it would produce some of the same risks of impeachment that the party’s leaders hope to avoid by taking the investigation track.