Can He Really Do That?

For months President Trump has been refusing to cooperate with what is now a formal impeachment inquiry into his presidency.  But last week, he reached a new level of non-cooperation, announcing that the inquiry was another “witch hunt,” and he would send no more documents to the House Intelligence Committee nor allow any government officials to testify (although several officials have already defied him).  Later in the week, White House lawyer Pat Cipollone sent a blistering letter to the committee, refusing the subpoenas and attempting to delegitimize the inquiry.   The Administration’s stance is that they can refuse to give any information to congressional investigators.  Now the President has descended into calling it a "lynching."

What is important to notice is that the President is claiming the right to a blanket refusal as opposed to refusing individual documents or administration officials’ testimony.

CAN THE PRESIDENT REALLY DO THAT? 

Well, yes and no. 

YES, HE CAN

Can President Trump really refuse to hand over documents or prohibit Administration officials from testifying?  And the simple answer is fairly obvious: Of course, he can; he’s already doing it and will continue doing it until the Supreme Court prevents him.  Until then, no one can force him to comply.  Any unfavorable decision in the lower courts would, of course, be appealed by Trump’s team, and it is not clear whether lower courts would (or could) enforce their decision before the Supreme Court weighs in.  The Court might decide to expedite the process and consider the appeals immediately.  Otherwise, the decisions regarding Trump's authority would have to wend their ways through the courts, which could take until after the 2020 elections resolution. 

NO, HE CAN’T

According to the nonpartisan Lawfare Blog, the President's actions are unconstitutional, and the constitutional and “legal” arguments in Cipollone's letter are baseless and misrepresent constitutional law and precedent.

The basic conflict is that the Constitution gives Congress the "sole power" to conduct inquiry without having to meet any of the President's conditions.  But the President is claiming executive privilege which gives him the right to keep conversations and documents from Congress.  Stalemate!

Trump’s problem, however, is that executive privilege can be invoked in very limited circumstances. 

Executive Privilege is a doctrine that enables the president to withhold certain information from disclosure to the public or even Congress. The doctrine is based upon constitutional principles of separation of powers, and is designed to enable the president to receive candid advice from advisers, as well as to safeguard information, the disclosure of which might threaten national security.  

Executive privilege is never mentioned in the Constitution, and the Supreme Court has never explicitly defined its limits or its priority vis-à-vis congressional oversight. 

Although there have been specific cases brought before the Supreme Court (for instance the Court’s order that President Nixon turn over his tapes to a federal court), the Supreme Court has never offered explicit guidance about what is to happen when, in general, Congress and a president collide.  In most previous cases, in fact, Congress and president have worked together and found a way to resolve the issue without involving the judiciary. 

There have been decisions, however, made by lower courts that have then been used as precedents.  Some things are clear:

Executive privilege is not unlimited; in fact, it is quite limited to matters that pertain to

• communication between the president and his advisers and
• matters of national security.

A president cannot claim executive privilege

• when crime or malfeasance is suspected, or
• if Congress can demonstrate that the information sought is necessary to its functioning and can’t be obtained elsewhere.

On the basis of the above and other precedents, if the question of testimony and documentation cannot be worked out informally, each claim of executive privilege must be decided individually by the courts.  Trump’s blanket refusal to provide documents and testimony has no basis in the Constitution or legal precedents.

These are important questions not only for Trump’s future, but also for the future of the democracy.  If presidents are allowed to withhold from Congress anything they want, the Constitution’s requirement for congressional oversight (and the Constitution itself) is deeply wounded.