Most Americans understand that the federal government has three branches—legislative, executive, and judicial—and that the Founding Fathers deliberately pitted them against one another so that no one branch would gain too much power. Congressional oversight and investigation of the executive branch, including the White House and the president, are essential to that system of checks and balances.
The 45th president has again set himself apart—this time by resisting congressional oversight to an unparalleled degree.
President Donald Trump’s administration has declared war on congressional oversight, and the House of Representatives is fighting back—by suing in federal court to enforce its subpoenas.
I served for more than 20 years in the House’s Office of General Counsel, from 1995 to 2016. During that period, House committees issued hundreds of subpoenas to executive-branch officials. In the majority of those cases, the subpoenaed officials either complied outright or negotiated agreements with the House about the information to be provided. Only twice in those 20 years did the House feel compelled to go to court to enforce its subpoenas.
Now, however, in the space of just seven months, this president and his administration have defied, or obstructed compliance with, House-committee subpoenas in more than half a dozen different matters—resulting in at least five lawsuits to date, with more likely to follow. Whatever your political leanings, you should hope fervently that the House comes out on top in these legal fights.
The executive branch is the operational arm of the federal government. It administers the multitude of federal programs that touch on the lives of nearly every American, employs the bulk of the federal workforce, collects and holds our tax remittances, spends well in excess of 99.9 percent of all federal dollars, controls the armed forces, exercises prosecutorial and law-enforcement functions, and so on. Congressional oversight and investigation help preserve our individual liberties by informing Congress about the administration of existing laws and the need for new laws; by exposing overreach, corruption, and mismanagement by executive-branch officials; and, ultimately, by enabling voters to make more informed decisions at the ballot box.
No administration enjoys congressional oversight, which is a blunt and uneven tool. It sometimes produces nothing, and it is invariably influenced by political considerations of one sort or another, including, in a disturbingly large number of cases, on whether the occupant of the White House is from “our party” or “the other party.”
All prior administrations chafed when Congress asked difficult questions or sought potentially embarrassing documents; all resorted to characterizing Congress’s motives as “political” when the inquiring congressional chamber was controlled by the opposite political party; and all, to a greater or lesser degree, pushed the envelope to see what they could get away with. Even so, all accepted the necessity of congressional oversight and acknowledged, if grudgingly, the crucial role it plays in our constitutional structure—until now.
The Trump administration—as it has in so many other dangerous ways—again has set itself apart, this time in the unprecedented degree to which it has resisted congressional oversight. In the space of just a few months, Trump has declared war on the House’s investigation of the executive branch—and, effectively, on the Constitution itself—through actions such as these:
- The president’s April 22 suit to block a House Oversight and Reform Committee subpoena to a private accounting firm for Trump financial records (a federal district judge entered judgment in favor of the committee less than a month later; the president has appealed);
- His April 29 suit to block House Intelligence Committee and House Financial Services Committee subpoenas to Deutsche Bank and Capital One for Trump financial records (a federal district judge decided, less than a month later, not to enjoin enforcement of the subpoenas; the president has appealed);
- The president’s April 24 avowal that “we’re fighting all the subpoenas”;
- His patently bogus May 8 blanket assertion of executive privilege in response to the House Judiciary Committee’s subpoena to Attorney General William Barr for the unredacted report of Special Counsel Robert Mueller;
- The treasury secretary’s refusal to comply with House Ways and Means Committee document subpoenas for the president’s tax returns (resulting in a civil suit by that committee on July 2 to enforce its subpoenas);
- The refusal by the attorney general and the commerce secretary to comply with House Oversight and Reform Committee subpoenas for documents about the administration’s failed effort to include a citizenship question on the census form (those refusals resulted in them being held in contempt of Congress on July 17 and may yet result in civil suits to enforce the subpoenas);
- The president’s July 23 suit against the House Ways and Means Committeeto block disclosure of his tax returns to that committee pursuant to New York state law; and
- The administration’s instruction to former White House Counsel Don McGahn not to comply with a House Judiciary Committee testimonial subpoena (resulting in a civil suit by that committee on August 7 to enforce its subpoena).
Under these circumstances, the House has to keep fighting, including by suing civilly to enforce its committees’ subpoenas. During the period that I served in the Office of General Counsel, only two House-subpoena cases ended up in court: Committee on the Judiciary v. Miers (during George W. Bush’s presidency) and Committee on Oversight and Government Reform v. Holder (during Barack Obama’s presidency). I worked on both. These cases provide some guidance on how the current suits will likely unfold, at least at the lower-court level.
In 2007, when Nancy Pelosi was speaker, the House Judiciary Committee subpoenaed former White House Counsel Harriet Miers to testify about, and White House Chief of Staff Joshua Bolten to produce records relating to, the White House’s firing of an unusual number of U.S. attorneys. The Bush White House directed Miers not to appear and Bolten not to provide records, claiming that senior White House aides were absolutely immune from congressional subpoenas (the same claim the Trump White House now makes with respect to McGahn). Ultimately, the committee, after being so authorized by the full House, sued to compel compliance.
U.S. District Judge John Bates, a Bush appointee, ruled in 2008 in the Miers case that senior White House aides are not immune from congressional subpoenas, that Miers had to appear before the committee but could raise privilege objections in response to specific questions, and that Bolten had to either produce the documents subpoenaed or provide to the committee a log of the documents as to which he claimed privilege. Bates also indicated that if further disputes ensued regarding specific privilege objections, he would help resolve them. Miers and Bolten appealed. But shortly thereafter, President Obama was sworn in, and the parties settled: The Judiciary Committee took Miers’s testimony and Bolten produced some, although not all, of the subpoenaed documents.
In 2011, when John Boehner was speaker, the House Committee on Oversight and Government Reform subpoenaed Attorney General Eric Holder for documents that concerned “Fast and Furious,” an undercover Justice Department law-enforcement operation that went awry and resulted in the death of a U.S. Border Patrol agent. After months of back-and-forth and the production of a small number of documents to the committee, Holder claimed that the remaining documents were protected by a common-law privilege little understood outside legal circles, known as the deliberative-process privilege. As before, the committee, after being so authorized by the full House, sued, this time to compel compliance with certain specific aspects of its document subpoena.
In 2013, U.S. District Judge Amy Jackson, an Obama appointee, ruled that the House had standing to sue. On the merits, however, the case dragged on for several more years—because of the volume of documents at issue, because Jackson allowed the Justice Department to assert new privileges as the case proceeded, and because she concluded that the deliberative-process privilege had some constitutional roots. Ultimately, the committee obtained many, although not all, of the documents it had sought.
These cases offer three principal lessons. First, the federal judiciary understands and, at least up to now, has been prepared to vindicate Congress’s role in overseeing and investigating the executive branch, regardless of which political party sits at which end of Pennsylvania Avenue.
Second, executive-branch whining about “partisan congressional Democrats” or “partisan congressional Republicans” is a waste of time, at least insofar as the federal judiciary is concerned. The courts understand that virtually everything of a policy nature that occurs in Washington has political overtones, that political considerations are inherent in the process of democratic self-governance, and that such considerations are irrelevant to the question of whether a congressional subpoena should be judicially enforced.
Third, court fights can take time, particularly if the factual underpinnings are complex. That does not appear to be the case with the House Ways and Means Committee’s subpoenas for the president’s tax returns, or the House Judiciary Committee’s subpoena for McGahn’s testimony, or the other lawsuits that are now pending. But Trump is not Bush or Obama, and we should not expect him or his administration to settle, compromise, or otherwise seek to resolve any of the cases they are litigating until they have exhausted every available judicial avenue, up to and including the Supreme Court.
What the Miers and Holder cases do not tell us, of course, is how a Supreme Court that includes two Trump appointees and a conservative majority—in an era when conservative ideology embraces very expansive notions of executive power—will rule on any of the congressional-oversight cases that end up on its docket. If you care about your individual liberties, and if you believe as I do that the vigorous exercise of our system of checks and balances is central to the preservation of those liberties—regardless of who the president is—you should pray that the Supreme Court takes the long view and that it resoundingly reaffirms the primacy of congressional oversight of the executive.