A Caution on Congressional Subpoenas and “Constitutional Crisis”

Last week, as part of its ongoing investigation into White House security clearance procedures, the House Committee on Oversight and Reform subpoenaed former White House personnel security director Carl Kline. The White House then directed Kline not to testify, and Kline followed that directive.

Specifically, the White House objected to the committee rules barring agency counsel (here the White House counsel’s office) from attending depositions of executive branch employees. While the executive branch complaint is not without merit, this has been the committee’s practice for over a decade. When I was in counsel’s office, I was forced to sit in the hallway while my White House colleague sat for a transcribed interview taken by the staff of then-Chairman Darrell Issa (R-Calif.).

But, should Kline fail to appear, I would caution against a rush to declare a constitutional crisis. Rather, I would suggest it is a constitutional conflict which will ultimately be determined by the courts.

As yet, Congress has neither exhausted its own remedies nor ripened a case for judicial enforcement of its subpoenas. If Kline obeys the President’s order not to testify, then Congress can hold him in contempt — as Chairman Elijah Cummings (D-Md.) has indicated he intends to do. At that point, Congress would be in a position to seek a federal court order directing Kline’s testimony. That is a drawn out process, but the courts can rule on the dispute. (We would revisit the constitutional crisis discussion were the executive branch ever to defy a federal court order.)

Aside from that compulsory process, Congress has collateral powers it could use to leverage its oversight interests, including the power of the purse, reauthorization of authorities needed by the Executive, and Senate confirmations.

One more point that should not be lost here: Public political consternation over executive branch resistance to congressional requests is common for presidents of both parties — assertions of confidentiality interests are often cast as stonewalling or a developing constitutional crisis. And sometimes the stonewalling label might be justified. But stoking umbrage is also one of the most important levers Congress uses to help pry information from a resisting Executive. Traditional media outlets will be Congress’ natural allies because of journalism’s longstanding watchdog culture that demands government transparency. Together, public outcry amplified by journalists shapes a political environment, and judicial atmosphere, that is less hospitable to a president’s legal position.

Congressional oversight is an escalatory process. It can be maddening. As a congressional investigator, I used to complain that each investigation, like Sisyphus, we had to start pushing the boulder up the hill anew.

But there is method in the process’s madness — courts want to afford the political branches maximum opportunity for accommodation and compromise before they get involved. And the courts will take a branch’s failure to negotiate in good faith into account once a judicial decision can no longer be avoided. Each choice the White House makes to refuse cooperation now risks not having a record of meaningful accommodations that courts will likely look for down the line.

Photo by Alex Wong/Getty Images

 

About the Author(s)

Andy Wright

Senior Fellow and Founding Editor of Just Security, Partner at K&L Gates, former Associate Counsel to the President in the White House Counsel’s Office. You can follow him on Twitter @AndyMcCanse.