Emily Bazelon is a lawyer, but she also is an outstanding legal scholar. In today's essay, she offers excellent analysis of the US form of government in three incependent and co-equal branches: Legislative, Executive, and Judicial. The system has not existed in a vacuum like the US Constitution in a airtight glass case in the National Archives. If this is a (fair & balanced) refresher course in US government, so be it.
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What Happens When A President And Congress Go To War?
By Emily Bazelon
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In early October [2019], President Trump’s White House counsel, Pat Cipollone, sent a defiant letter to four leaders of the House of Representatives. No one in the Trump administration, Cipollone declared, would participate in the impeachment inquiry that Speaker Nancy Pelosi opened in September after Trump’s phone call with President Volodymyr Zelensky of Ukraine came to light. “Because participating in this inquiry under the current unconstitutional posture would inflict lasting institutional harm on the executive branch and lasting damage to the separation of powers, you have left the president no choice,” Cipollone concluded.
Cipollone’s warning came at a pivotal moment for the balance of power between Congress and the presidency. Some political scientists have called Trump a weak president for failing to push through a legislative agenda. But in some ways, he has fit the model of an “imperial presidency,” historians say, by asserting in court — as no president has done before — that he is beyond the reach of criminal law. In a hearing before a federal appeals court in New York in October, one of Trump’s personal lawyers, William Consovoy, said that a sitting president cannot be held accountable for any crime, even if he shot someone. (“Local authorities couldn’t investigate?” Judge Denny Chin asked. “Nothing could be done? That is your position?” Consovoy answered, “That is correct.”) Trump’s Justice Department has also argued for vanishingly narrow readings, as applied to the president, of the crime of obstruction of justice and the Constitution’s emoluments clause, which was written to prevent foreign governments from exerting a corrupting influence.
Since the nation’s founding, Congress has exercised its oversight authority over the workings of the presidency by opening investigations, asserting its power to wrest information out of the executive branch. Its most important tool in this endeavor is the subpoena, which Congress can issue on its own, without the approval of a court, to interview witnesses and obtain documentary evidence. In 1821, the Supreme Court recognized Congress’s power to enforce its subpoenas by holding noncompliant officials in contempt, including by sending a sergeant-at-arms to arrest and detain them.
But over the last half century, the executive branch has grown bolder about withholding information in the name of national security or executive privilege, to keep the president’s communications confidential. And Congress has become the branch least able to enforce its own orders. It hasn’t sent a sergeant-at-arms to arrest or detain anyone since 1935. Asked to referee, courts tend to prefer compromise and negotiation. In 2008, the district court in Washington warned that “unseemly, provocative clashes” over locking up an executive-branch official “should be avoided.” Even when judges step in to take the side of Congress, the appeals process can take so long that the president wins simply by running out the clock. “The judgment is in Congress’s favor,” the Cornell law professor Josh Chafetz says. “But the political value of the information has reduced to zero.”
President George W. Bush and President Barack Obama fought with Congress over particular subpoenas while otherwise respecting its oversight. The Trump administration, by contrast, has said no to all congressional subpoenas even before the impeachment inquiry. On October 31, at a district court hearing in Washington, the Justice Department argued that Congress cannot go to court to enforce a subpoena for the former White House counsel Donald McGahn, who has been called to testify about Trump’s efforts to obstruct the special counsel Robert Mueller’s investigation. (“The House can never go to court?” Judge Ketanji Brown Jackson asked. “I think that is correct,” James Burnham, the Justice Department lawyer, said. “The Constitution does not allow this.”) It’s a sweeping argument. “What’s new is the president denying the legitimacy of the whole idea of congressional oversight, rather than arguing over one specific act,” Chafetz said.
To avoid getting bogged down in legal proceedings, the House committees in charge of the Trump impeachment inquiry haven’t taken a single witness to court, even though senior aides like Secretary of State Mike Pompeo and Rudy Giuliani, Trump’s personal lawyer focused on the Ukraine dealings, have refused to testify or turn over documents. “We are not willing to let the White House engage us in a lengthy game of rope-a-dope in the courts, so we press ahead,” said Adam Schiff, chairman of the Intelligence Committee, who has been leading the impeachment inquiry.
The House is, instead, relying on a tacit partnership with the backbone of the executive branch — career professionals, who work from administration to administration in the State Department, the Pentagon and the National Security Council. These officials may be risking their jobs or pensions by choosing to obey a congressional subpoena rather than Cipollone’s directive, but they’ve been walking into the Capitol, day after day, to tell Congress what they know about Trump’s efforts in Ukraine.
The power struggle between the branches playing out now is what the framers relied on and expected. The checks and balances of American governance are at once fragile and durable, and they’ve been recalibrated in times of crisis. The impeachment process can be the focal point for propelling Congress to reclaim its coequal place. “Disputes between Congress and the president are a recurring plot in our national story,” Judge David Tatel of the US Court of Appeals for the DC Circuit wrote in October, in a ruling for Congress (by a vote of 2 to 1) in a case, separate from impeachment, concerning whether it can subpoena the president’s tax returns. Tatel quoted Justice Louis Brandeis, in a dissenting opinion from 1926: The purpose of the separation of powers was “by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.”
Congress can investigate government corruption or the causes of a mistake or failure (like the burning of Washington by British troops in 1814 or the attack on the US diplomatic compound in Benghazi, Libya, nearly 200 years later). The idea is that lawmakers need to scrutinize to know what’s gone wrong, and then they can fix it by doing their main job of legislating.
Congress embraced this role to address the big corruption scandal of the 1920s — the forerunner of Watergate. Tipped off by a frustrated oil operator, a Senate committee investigated allegations of a bribery plot to lease the federal oil reserves in Teapot Dome, WY, involving the secretary of the interior, Albert Fall. When Attorney General Harry Daugherty failed to prosecute anyone, the Senate suspected him of being involved and subpoenaed his brother, who controlled a bank that held relevant records. He refused to comply, and the sergeant-at-arms arrested him. The case went to the Supreme Court, and the justices set an important precedent in deciding that a congressional committee could compel a witness’s testimony. Congressional power of inquiry was an “essential and appropriate auxiliary to the legislative function,” the justices wrote in their 1927 ruling.
Congress also sought tax records for Fall and Harry Sinclair, an oil magnate suspected of bribery. President Calvin Coolidge had the legal authority to get the records from the Internal Revenue Service, but his aides worried that Congress was on a fishing expedition, and Coolidge hesitated to turn them over. In the end, they compromised: The Senate asked to inspect the tax returns rather than obtain them, and Coolidge agreed. The investigation took down Daugherty, who resigned in 1924, and Fall, who was convicted of bribery in 1929.
In response to the resistance it encountered in Teapot Dome, Congress passed two laws. The Revenue Act of 1924 authorized the chairmen of the House Ways and Means and Senate Finance Committees to demand the tax records of any citizen. In 1925 Congress revised the Federal Corrupt Practices Act, to expand the financial-disclosure requirements for holding federal office. Nearly a century later, the Revenue Act is the basis of the current demand in the House for Trump’s tax returns.
By the 1940s, Congress’s power had ebbed again, reduced by another president, Franklin Delano Roosevelt, who was elected to four terms as he expanded the scope of the executive branch to combat the Great Depression and fight World War II. In Congress, meanwhile, Senator Harry Truman was making a name for himself by finding evidence of fraud among defense contractors and leading a congressional committee that held hundreds of hearings and saved the government millions of dollars in war expenses.
When Truman arrived in the White House in 1945, he found himself on the other side of an aggressive Congress, where Republicans made accusations (later championed by Senator Joseph McCarthy) that Communists were overrunning the State Department. Truman issued an order to screen all federal civil-service employees to assure their loyalty and asked the FBI to conduct background checks. But starting in 1948, when the House Un-American Activities Committee demanded the FBI files, which included speculation about their subjects’ sexual identities and drinking habits, the president fought to keep them confidential. “This time, the liberals and the civil libertarians were on the side of stopping Congress,” says the Yale historian Beverly Gage, who is writing a biography of the FBI director J. Edgar Hoover.
Sam Ervin, a Democratic senator from North Carolina, spent his first year in office in 1954 fighting to censure McCarthy. Ervin was a realist about the danger of congressional investigations. “It can be the catalyst that spurs Congress and the public to support vital reforms in our nation’s laws,” he said later in his career. “Or it can debase our principles, invade the privacy of our citizens and afford a platform for demagogues and the rankest partisans.”
In 1973, Ervin headed the Senate select committee that investigated the Watergate break-in that implicated top aides in the Nixon administration and the president himself. The story of Watergate included a moment when it seemed as if presidential impunity, not accountability to Congress, could win out. When Ervin’s committee demanded the tapes on which Nixon reportedly discussed the crimes surrounding the break-in, Nixon said he didn’t have to turn them over, asserting executive privilege based on the “confidentiality essential to the functioning of the Office of the President.”
Ervin mocked Nixon’s claim as “executive poppycock.” No court had ever ruled that presidents have a constitutional claim to executive privilege — to keep information confidential based on the status of the presidency in the separation of powers. When Ervin’s committee sued to enforce their subpoenas for access to the tapes, it almost certainly marked the first time Congress tested its subpoena power in court against a president’s claim of executive privilege. The district court in Washington sided with the president, and in May 1974, the appeals court agreed, ruling that Ervin’s committee hadn’t shown that its need for the tapes was critical for fulfilling its investigative or legislative function. It was only when the Watergate special prosecutor demanded the tapes for his criminal prosecution of White House officials that the Supreme Court, in July, unanimously ordered Nixon to turn over the tapes.
Watergate, like Teapot Dome, was a crisis that became an opportunity for Congress to reassert itself. The 1970s were one of the most productive periods in American history for government reforms that rebalanced power among the branches. The wave of legislation started with the War Powers Act, which Congress passed over Nixon’s veto in 1973, to set limits on how long presidents can order troops into combat without congressional approval. The list continued with an expansion of the Freedom of Information Act in 1974, which increased media and public access to information inside the government; limits on campaign contributions; a mechanism for appointing a special prosecutor; and (once again) stronger financial-disclosure requirements. In signing some of these laws, two presidents — Gerald Ford, a Republican, and Jimmy Carter, a Democrat — made it possible for Congress, as Sam Ervin put it, to “recover some of its powers.”
The framers could have gone a long way in reducing the friction among the branches. They could have created “three airtight departments of government,” each sealed off from the other two, as the Supreme Court pointed out in 1977. Instead, the Constitution put in place a system of overlapping branches. In the decades since Watergate, as Congress has fought to maintain oversight by exposing the inner workings of the executive branch, each side has often found it in its political interest to compromise. That was the dynamic when George W. Bush’s attorney general, Alberto Gonzales, testified in front of Congress about domestic surveillance in 2006 and when Hillary Clinton, after serving as Obama’s secretary of state, spent 11 hours answering questions from a House committee about the 2012 attacks on the American compound in Benghazi.
But when the branches can’t resolve a clash on their own, a long court battle often feeds into a political war of attrition. During George W. Bush’s presidency, the House Judiciary Committee, led by Democrats, subpoenaed two top White House aides to investigate the firing of nine US attorneys. The committee won an initial court ruling in 2008 against Bush’s claims of executive privilege and obtained some documents. But the aides still refused to testify. At the end of 2008, the appeals court said there was no point in expediting a final ruling, because Congress’s session was about to end, and the subpoenas would expire with it.
In 2011, during the Obama administration, the Republican-led House Committee on Oversight and Reform opened an investigation of "Fast and Furious," an operation by the Bureau of Alcohol, Tobacco and Firearms, in which guns supposedly went missing in Mexico. The Justice Department turned over documents, and Attorney General Eric Holder testified before Congress, acknowledging that "Fast and Furious" was “fundamentally flawed.” But the Justice Department claimed executive privilege — the single time the Obama administration took this position in court — over materials concerning its internal deliberations. The litigation dragged on until April 2019.
A case pitting executive privilege against Congress’s demand for information has never reached the Supreme Court. The fundamental legal question at the heart of the impeachment inquiry remains unresolved. One potential witness in inquiry, the former deputy national security adviser Charles M. Kupperman, has filed a lawsuit to ask the courts whose order he should obey. “Plaintiff obviously cannot satisfy the competing demands of both the legislative and executive branches,” the suit correctly states.
Without the ability to control who testifies, Trump’s presidency looks less imperial. But when impeachment is over, whatever the outcome, Congress may well decide, as it did after Teapot Dome and Watergate, to put the lessons of this investigation to work in resetting the balance of power. To ensure that the public knows more about any personal financial interests that might influence the president, Congress could pass a law requiring the future occupants of the White House to disclose their tax returns and more information about their financial investments. “This should be low-hanging fruit,” said Bob Bauer, who served as Obama’s White House counsel. “Even in our polarized world, this could get done, after Trump. And it should.”
Other proposals involve a trade-off of potential costs and benefits. To prevent court proceedings from dragging on, Congress could set short timelines for rulings, like 30 or 60 days. “Delay helps the status quo, which means it helps the president,” said Steve Vladeck, a law professor at the University of Texas at Austin. “Congress could fix this.”
But what if an increasingly conservative judiciary — Trump has had more than 150 judges confirmed — comes down definitively on the side of executive power? “Be careful what you wish for,” said Jack Goldsmith, a Harvard law professor and alumnus of George W. Bush’s Justice Department. Congress has powers of its own that it has gotten out of the habit of using, he argued. “Literally everything the executive branch does requires funding,” Goldsmith said. “And of course the House controls spending.”
Bauer and Goldsmith are writing a book together tentatively called After Trump: An Agenda for Reform, a collaboration that illustrates some bipartisan agreement, in the legal world, that the separation of powers is out of whack. Congress has to strengthen its own hand (and the next president has to help it do so). To be sure, a core of executive power will remain untouched. The attorney general will continue to serve at the pleasure of the president inside the executive branch, despite the challenges that poses for the independence of the Justice Department and any criminal investigation of the president.
Nixon was wrong when he said, “When the president does it, that means that it is not illegal,” and Trump was wrong [PDF] when he tweeted, “I have the absolute right to PARDON myself.” The framers debated ideas like these and built the whole ingenious and infuriating system of American government on rejecting them. They’d lived under the rule of a king. They understood the inherent danger. “The accumulation of all powers, legislative, executive and judiciary, in the same hands,” James Madison wrote in 1788, “may justly be pronounced the very definition of tyranny.” ###
[Emily Bazelon is a staff writer for The New York Times Magazine and a former senior editor at Slate. Bazelon also is the Truman Capote Fellow for Creative Writing and Law at Yale Law School. She is also the author of the national best-seller Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy (2013); see her other books here. Bazelon is a graduate of Yale College (BA, English) and Yale Law School (JD) and was an editor of the Yale Law Journal.]
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