Congressional Oversight I

Executive Privilege

The purpose of this blog has been to explore President Trump’s assaults on our democracy.  With the President’s attempts within the last several weeks to refuse all congressional investigations and to block completely Congresses’ constitutional responsibility to provide oversight of the executive branch of government, we move into new and dangerous territory. 


This President survives on chaos.  An important part of his modus operandi is to throw outrageous comments and actions at the wall and see what sticks.  In the meantime Congress, the media and the public are overwhelmed by his challenges to the point that adequate responses get buried in the onslaught. 

• Since the release of the Mueller report, Trump has insisted that the report exonerates him.  This is simply a lie.  In actual fact, the report explicitly outlines at least ten different instances of obstruction of justice.  Mueller makes it explicit that he is not exonerating Trump, only gathering the facts.  He does not press charges because prosecution of a sitting president is not legally permitted.  It must be left to congressional impeachment or prosecution after Trump leaves office.  Nevertheless, the President, his supporters in Congress and the media parrot this obvious lie, which reveals once again the Republican Party’s utter complicity in obstructing justice.
• In the context of clearly legitimate investigations by the House of Representatives, Trump has invoked absolute executive privilege to prevent all documents from being released and all subordinates from being interviewed.
• Trump has refused to allow his Secretary of the Treasury Mnuchin to release the President’s tax returns even though, by law, Mnuchin has a clear responsibility to do so.
• And on and on.

The President twists the law and disregards the Constitution almost daily, and those who would hold him accountable just can’t keep up.  If one charge doesn’t stick, Trump either doubles-down or forgets it and moves onto the next.  He is a moving target. 

Trump’s claim of executive privilege in order to prevent congressional investigation of his presidency is a good example.  The Supreme Court has concluded that the

power of the Congress to conduct investigations is inherent in the legislative process.  [That power is broad enough to include] probes into departments of the Federal Government to expose corruption, inefficiency or waste ….

A federal court of appeals declared that “[a] legislative inquiry may be as broad, as searching, and as exhaustive as is necessary to make effective the constitutional powers of Congress.”  The concept delineated in this phrase is part of the foundation of the separation of powers fundamental to our government.  It is the basis of the “separation of powers” fundamental to our government.  Although there have been several specific legal challenges to this congressional responsibility (the impeachment hearings of Presidents Richard Nixon and Bill Clinton are two examples), no one until now has challenged the basic responsibility of Congress to provide oversight of the executive branch.  Trump’s blanket refusal is unique in American history.

The President’s claim of executive privilege, however, does muddy the waters.  Executive privilege is not an enumerated constitutional right.  Although numerous presidents (starting with George Washington!) have attempted to block congressional attempts for documents, most conflicts between presidents and Congress have been resolved through negotiation and compromise.  In fact, the doctrine of executive privilege didn’t even exist until President Richard Nixon’s impeachment hearings in 1974 when the Supreme Court legitimized it.  Executive privilege

covers communications between the president and his closest aides on matters that must be kept from Congress or the courts to protect the effective operation of the executive branch. 

Although the Supreme Court has failed to define executive privilege clearly and completely, some things are certain: Executive privilege

• is a limited power.  It can only be invoked for specific purposes that are clearly identified and legitimate.  Trump’s blanket refusal will not hold up in court.
• cannot be used to prevent investigation of a criminal charge.
• cannot be used to prevent investigation of behavior that took place before the president’s inauguration.
• cannot be used to keep individuals who are no longer subordinates to the president from testifying.

After reading multiple explanations of executive privilege, the one thing that I can say for certain is that it is still a fuzzy concept.  Discussions may be found here, or here.  But the President steps so far over the boundaries of executive privilege that arguments about the exact definition are hardly required.

Perhaps the most revealing aspect of Trump’s claim to executive privilege is its breadth, which makes obvious his intent to obstruct the process.  He has refused to turn over any documents, refused to allow the testimony of any of his aides, tried to block the testimony of people who were not his subordinates, refused to turn over the complete Mueller report, and claimed privilege for events that happened before he became president.  The courts will eventually rule against him, but the process may take months or even years.

With his willful violation of constitutional principles, the President has found a way to (temporally at least) withhold all information that has been or will be subpoenaed by the House Judiciary Committee (or any other congressional committee), thus fundamentally challenging the constitutional mandate for congressional oversight.  It is a profound challenge to our democracy.  The President is fighting for the power to rule our country without any oversight, the very definition of autocracy.

These are perilous times.  When I began this blog I was, of course, concerned about our democracy, but I had confidence that our democratic structures would hold against the assault and things would eventually turn to a relative normality.  Now, I’m not so sure.  For the first time since I’ve been writing this blog, I fear for the ultimate survival of our democracy.