Executive Privilege: Is Impeachment The Only Way To The Truth?
Reprinted with permission from the Alliance For Justice blog Yeomans Work.
Democratic leaders, including Nancy Pelosi, have discouraged movement toward impeachment for now. Their rationale has been twofold: the House of Representatives’ time and energy would be better spent pursuing substantive legislation and, in any event, House committees will conduct oversight investigations that will shine devastating light on the operation of the Trump administration. Both rationales make sense for the short-term political benefits they yield, but, in the end, both blink at reality.
The House should, of course, develop and pass legislation that addresses the major problems facing the country. H.R. 1 is an excellent start. It should move on to a revitalized Voting Rights Act, health care, immigration, climate change, and other elements of the Democratic agenda. But, it will do so in full knowledge that the Senate will not take up any but the least controversial of these enactments. Should substantive legislation miraculously slip through, Trump will veto it. The effort is still important to show the public what Democrats would do with control of the government, but it will not be an effort that consumes all of the House’s resources. The House can and should legislate and investigate simultaneously. This is the constitutional version of walking and chewing gum at the same time.
While it assuredly makes sense to begin the investigative process by authorizing multiple committees to launch oversight inquiries, the limits of that approach became glaringly obvious this week when the White House made clear it would stonewall requests for documents. The House Judiciary Committee’s deadline for compliance with its voluminous document requests passed quietly. Elijah Cummings, Chair of the House Committee on Oversight and Reform, voiced his frustration in a Washington Post op-ed, complaining that he had sent a dozen letters to the administration, which had failed to produce a single document or witness in response. Unidentified administration members confirmed that the White House planned to resist almost all requests.
In any administration, congressional oversight is a complicated dance. It is one of the core constitutional functions of Congress. Administrations generally recognize that there is some obligation and some advantage to cooperating up to a point. Impasses generally are resolved through negotiation, but many of the usual forces pushing the parties toward resolution do not exist between the Trump administration and the House.
Initially, the general sense of obligation for governing responsibly that animates the vast majority of government actors is alien to this president. Self-enrichment, adulation by his base, and self-protection leave no room in Trump for concern about responsible governance. Nor does Trump fear political embarrassment from non-cooperation. He has built his political brand around hostility to all who oppose him. That now includes the Democratic House, and his supporters revel in the fight.
Nor does Trump fear that the House will exact a price by withholding its support or legislating in opposition to him. He does not have a significant legislative agenda and does not expect the House to support any of his core goals. His emergency declaration to produce wall funding demonstrated his disregard for the House and the benefit he sees in opposing it. He is confident that between Mitch McConnell refusing to allow votes on House legislation and his veto pen, the House cannot harm him legislatively. It should, therefore, surprise no one that the administration will engage in scorched-earth resistance to congressional efforts to shine light into its inner workings.
Unfortunately, stonewalling can work. The cumbersomeness of congressional compulsion can allow a recalcitrant administration to run out the clock. If Trump ignores document or witness requests, congressional committees will feel obligated to engage in some negotiation.
When that fails, the committee can issue a subpoena, which imposes a legal requirement on the witness to appear. A witness can continue to resist the committee, likely asserting that executive privilege protects her testimony. The committee can vote to hold the witness in contempt. The House can then authorize a referral to the U.S. Attorney for the District of Columbia who can seek to indict the witness for criminal contempt of congress. The U.S. attorney, who works for the Department of Justice, will not seek an indictment because it will already have signed off on the lawfulness of the assertion of executive privilege. The committee can then seek authorization to file a civil contempt action in federal district court.
Civil litigation can be painfully slow. The House initiated civil contempt proceedings against Harriet Miers and Karl Rove in 2007 after they asserted executive privilege in refusing even to appear at a House Judiciary Committee hearing to address the firings of U.S. attorneys. The district court eventually held they had to appear, but could object to answering individual questions. They finally agreed to a closed-door interview two months after the Bush administration left town.
Importantly for the proceedings that may come, executive privilege is a real thing. The Supreme Court recognized its constitutional grounding in U.S. v. Nixon, in which it held that the privilege was qualified and was overcome by the need for subpoenaed evidence in a criminal prosecution. Since then, the Supreme Court has stayed away, but the D.C. Circuit has discussed the scope of the privilege in a couple of significant opinions. We know that the privilege applies most powerfully to presidential communications, including those between the president and his close advisors and between those advisors and others they contact to prepare advice for the president. A great deal of the information the House is seeking will fall within that bubble.
We also know that the needs of a criminal investigation may overcome the privilege, but it is less clear that generalized congressional oversight will, in most instances, provide a sufficient interest to puncture the privilege. The needs of a specialized and focused impeachment inquiry, however, provide a justification at least as compelling as a criminal investigation and should defeat the privilege.
Developments in the Mueller investigation, whether further indictments or the release of a report, may affect the course of congressional investigations. As things now stand, however, the Trump administration appears intent on stonewalling to exhaust the clock. It can be expected to assert executive privilege, forcing Congress to litigate unresolved questions about the weight of general oversight in piercing the privilege. The House would greatly increase its likelihood of prevailing in those disputes, and of exposing more quickly the misdeeds of the Trump administration, if it were conducting an impeachment inquiry.
Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He previousy served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General.