Democrats in the U.S. House are preparing to wield their new majority power in January. While they lack the control of both chambers necessary to push through legislation, they can, and almost certainly will, increase oversight of the executive branch on a range of matters, including possible collusion between the Trump administration and Russia in the run-up to the 2016 election and an array of other issues. In the process of plotting their course, their preparations will need to account for all the ways the Trump administration can slow-walk or otherwise undermine that effort.
While the chairs of the various committees will now have subpoena power, the White House can find ways to resist or run out the clock. Some of those tactics might fit the pattern of previous administrations, but others may break new ground in an administration that prides itself on disrupting settled norms.
Jonathan Turley, a professor at George Washington University Law School who represented four U.S. attorneys general during the litigation over the impeachment of President Bill Clinton, says the fight is likely to get intense – and long.
“We’re going to get into a type of trench warfare between the branches,” Turley told an audience at the National Press Club on Nov. 15. He was among legal scholars on a panel discussing a range of potential legal and policy challenges facing the Trump administration and specifically the president. Those challenges range from House investigations all the way to the possibility of impeachment. Looming over it all, of course, is Special Counsel Robert Mueller’s investigation of Russian interference in the 2016 presidential election and possible collusion with the Donald Trump’s campaign.
Richard Ben-Veniste, a former member of the Special Prosecutor’s team in the Watergate probe, said U.S. House investigators should lean in.
“They should go as far as they ought to go, satisfying their responsibility as a check against the executive branch, to investigate,” said Ben-Veniste. But he also warned about going too far. “Politically, they need to be very careful that they don’t trip over each other, that they organize themselves, that they are acting coherently and not vindictively.”
Turley, Ben-Veniste and the other panelists agreed that there would and should be little talk about – or consideration of – impeachment, at least until Mueller’s investigation produces its final report, and depending on what it says. While the counsel’s office has maintained a firm clamp on any leaks, it has issued a string of indictments, including Trump campaign officials and Russian military officers, and analysts have speculated that the probe might extend into early 2019 but wrap up shortly thereafter. The new Congress takes office on Jan. 3.
In the meantime, Democrats are likely to pursue a range of investigations of the Trump administration, from spending by Cabinet secretaries, to separations of immigrant children from their parents, to emoluments.
Other Avenues for Information
At least initially, House investigators likely will try to avoid the most contentious demands for information from the executive branch by exploring other avenues first, said Andy Wright, who is a former staff director and counsel to the national security subcommittee of the U.S. House Committee on Oversight and Government Reform and later associate counsel to President Barack Obama.
“Third parties — banks, accountants, social media companies, building tenants — hold a lot of the records relevant these investigations,” and the president will have no authority to interfere with access to those kinds of documents, said Wright, who is also senior fellow and founding editor at Just Security. He gave the example of the sex-advertising website Backpage.com, which he said “failed spectacularly in court in its effort to resist a Senate subpoena. The same fate would befall other private companies in Trump-related investigations.”
But House overseers will almost certainly want information that comes directly from the executive as well. Absent White House cooperation, the House majority will almost certainly rely on its subpoena power in pursuit of documents and testimony it deems essential.
And the administration already shows signs that it will resist. The day after the Nov. 6 election, Trump threatened a “warlike posture.”
“It is likely that the White House will attempt to slow-walk anything that Congress is doing, and they can be effective at that,” Ben-Veniste said. “They can dribble out materials, they can promise things, they can negotiate, they can look for places where there might be divisions in the committee and exploit those. All those things are tried and true methods of slowing down the investigation.”
Potential court challenges could tie up the process for months or years.
Jen Daskal, an associate professor in American University’s Washington College of Law and a founding editor of Just Security, agreed that the process is likely to get contentious. But it also might shed light on key, unresolved issues about the scope of executive privilege, she said.
“We are going to start seeing a lot of fights about subpoenas and executive privilege,” Daskal told the National Press Club audience. “There’s a lack of clarity about the scope of executive privilege, so I think we are going to see some opportunity for the courts to get involved and begin to clarify, to some degree, the scope.”
Executive Privilege
That said, there are two issues that are settled, Daskal said. First, executive privilege is not absolute. Second, “the courts get to decide.” Marbury v. Madison, the landmark 1803 Supreme Court decision that affirmed the authority of federal courts to determine the constitutionality of legislative and executive decisions, “still is good law,” Daskal said, despite the stated preferences of Acting Attorney General Matthew Whitaker when he made an unsuccessful bid for the U.S. Senate in 2014.
There are some areas where executive privilege is at its zenith, Daskal said. She cited communications with the president; national security, military, and defense issues; and certain types of ongoing law enforcement investigations.
“But even in those areas where the claim of executive privilege is at its highest, it’s not absolute,” Daskal said.
Executive privilege is among the likely arguments the White House would posit to resist a request for any Mueller report, should it not be made public by the administration. But Daskal and Jack Quinn, former White House counsel to President Bill Clinton, agreed that any report from Mueller likely would not qualify for executive privilege.
Turley emphasized that Congress “has the advantage in subpoena fights” for legitimate oversight and likely would prevail. “The question is really when.”
`Not a Lot of Runway’
Turley and Ben-Veniste noted Trump’s allusions after the midterms to the fact that Democrats have only two years to pursue him before the next election. That timeline – the potential contempt citations, court cases, and appeals — likely has been discussed in the White House, Turley said.
“All that eats time, and there’s not a lot of runway left,” Turley said. “Two years might sound like a lot of time, but it’s really not.”
Quinn said such fights historically have been resolved by a “process of accommodation of the legitimate interests of the other branches.” But that tradition began to collapse when Newt Gingrich became Speaker of the House in 1995, he said.
“There was literally no interest on the part of the Congress in accommodating the legitimate interests of the executive branch,” he said. Quinn, a partner at Manatt law firm and a CNN legal analyst, recalls vividly when the House Oversight and Investigations Committee held him in criminal contempt, a charge he ultimately overcame. “It really got to the point of confrontation. And it was heated, it was unnecessary, and it was unpleasant … I hear the echoes of those experiences that I had in the Clinton administration all the time right now.”
Quinn called for Congress to “robustly assert its prerogatives for oversight and investigations.” But it should do so in a manner that will “be responsible, sensible, focus on genuinely important matters and not overreach,” he said. “Learn the lessons of what happened during the Clinton years.”
While the administration has the ability to thwart Congress by slowing the process, such an approach could raise unwanted questions, Ben-Veniste said in the Press Club discussion.
“The political cost of doing so, where a legitimate question for the American public to ask is `What is the White House hiding,’ may inform how the White House ultimately regards a congressional investigation,” Ben-Veniste said. “Having said all that, the real wild card is what Bob Mueller does.”