The deliberations of the Constitutional Convention in 1787 were held in strict secrecy, so the curious townsfolk in Philadelphia gathered outside the doors of Independence Hall and peppered the delegates with questions as they exited the building. As recorded in his notes by Maryland delegate James McHenry, a woman named Eliza Powel asked Benjamin Franklin, "Well, Doctor, what have we got, a republic or a monarchy?" Franklin replied, with no hesitation, “A Republic, if you can keep it.”
Many were most likely taken aback by the hint of pessimism in Franklin’s words. Well, we are about to find out, at long last, what Franklin meant.
There has never been an administration so permeated with the stench of criminality as the one we have had to endure over the past two years. The special counsel’s investigation thus far has yielded 35 known indictments, criminal convictions, or guilty pleas, among them of several members of what can fairly be described as Donald Trump’s inner circle. Several others are awaiting trial. These are only the crimes that have been exposed to date. The strikingly venal character displayed by nearly all of Trump’s executive appointees and Cabinet members and their apparent willingness to embrace corruption and perpetrate appalling acts, supposedly in the performance of their job duties, practically guarantee that in the coming years we will be deluged with evidence of state-sponsored criminality on a scale never before witnessed in this country.
The American people spoke resoundingly in 2018, voting to end the farcical role House Republicans had played in enabling this abomination. One of the primary duties of the newly sworn-in Democrat-controlled House is to exercise its constitutionally mandated powers of overseeing the executive branch. When voters last year overwhelmingly approved this legislative body to provide a check on Donald Trump, that power to exercise oversight is exactly what they were voting for.
And the Democrats have responded. Within weeks of being sworn into office, House Democrats issued requests to 81 separate individuals and entities seeking the voluntary production of documents and materials pertaining to Trump’s business dealings with Russia; payments of hush money to silence women with whom he'd had affairs; surreptitious communications with Russian despot Vladimir Putin; the impetus for firing FBI director James Comey; the issuance of security clearances to Trump family members with undisclosed personal conflicts; and a host of other issues, some of which are also under scrutiny by the special counsel’s office. These requests were sent by the chairman of the House Judiciary Committee; separate requests came from chairmen of the Foreign Affairs, Intelligence, and Oversight committees. All of the information sought from the administration is directly relevant to its potentially illegal, unethical, or otherwise criminal actions.
Several respondents, all of them private citizens or nongovernmental entities, have submitted the requested documentation. However, there has been no response from anyone occupying a position in the administration, not even an acknowledgment that the letters were received. The administration has in effect thumbed its nose at the new Democratic House and dared it to issue subpoenas, declaring that it has no intention of cooperating with the Congress. When those subpoenas are ultimately issued, it is a forgone conclusion that they will be ignored. As a subpoena is by definition the equivalent of a court order, House Democrats will then have no other recourse but to seek relief from the courts to enforce the ignored subpoenas, hold these members of the administration in contempt for their refusal, or both.
That a regime this steeped in its haughty disrespect for the rule of law would refuse to comply with an investigation into its own corruption and illegality is not surprising. The Bush administration similarly stonewalled efforts to discover information about its torture policies, domestic surveillance of U.S. citizens, and political attacks on its enemies. Through the Justice Department, it instructed members of its federal agencies to delay, defer, produce incomplete information, and otherwise try to run out the clock on Congress. In the end the always-repeated mantra was that such materials and information could be withheld under executive privilege. As Scott Horton wrote in Harper’s magazine of the Bush administration's efforts in 2007:
What happens is that executive privilege is now used to block any inquiry by the legislative branch—the ultimate power play used to turn the Congress into a meaningless ornament, stripped of the core of its Constitutional function. The White House’s calculus now is that it can transform Congress into an impotent and meaningless collection of busybodies.
As Horton noted, Bush was aided in this malfeasance by the peculiar law that mandates that contempt charges involving a congressional subpoena be brought by the U.S. attorney for the District of Columbia. The Bush administration’s position (articulated earlier in a Justice Department opinion issued during Reagan's administration) was that it would not allow that to happen, as the U.S. attorney’s office is an arm of the Department of Justice in itself and is therefore part of the executive branch. The Justice Department would therefore not allow a U.S. attorney to bring contempt charges or convene a grand jury in such a case, using claims of executive privilege. Since by this circular reasoning there was no statutory remedy for Congress to enforce any subpoenas it issued, the executive could act with total impunity, no matter what criminal conspiracies it chose to indulge in.
Just imagine the implications of that.
The singular difference between the Trump and Bush administrations is that Trump’s venality is far more pervasive, his contempt for the law far more transparent and openly expressed, and his criminal behavior far more personal. At least the Bush administration could cloak its illegality with a veneer of policy; the actions attributed to Trump in many cases simply reek of personal nefariousness and that of his family. That may turn out to be an important distinction.
Even so, there is little doubt that the Justice Department under Trump would pursue a similar course as did Bush’s Justice Department, one intended to nullify the Congress’s powers of contempt in any matter—no matter how corrupt—involving the president by declaring it covered by executive privilege. The glaring constitutional problems involved in such a position have not been fully resolved by the courts. Although the Supreme Court effectively declared in U.S. v Nixon that a sitting president embroiled in a criminal investigation is not above the law, no court has rendered a decision on an effort by an administration to wholly evade the contempt power of a co-equal branch of government based on “executive privilege,” the position in effect espoused by the Bush Justice Department. Moreover, as explained by Dan Eggen and Amy Goldstein of the Washington Post, there is one other remedy available to the Congress if it has the will to use it:
Both chambers also have an "inherent contempt" power, allowing either body to hold its own trials and even jail those found in defiance of Congress. Although widely used during the 19th century, the power has not been invoked since 1934 and Democratic lawmakers have not displayed an appetite for reviving the practice.
Democrats would do well to re-evaluate that lack of "appetite" in the face of the most lawless administration in the country’s history, one that likely won an election through soliciting the assistance of a hostile foreign power. But the bottom line is that anyone who expected this Congress to be able to actually obtain any damning evidence or witness testimony from administration officials in the near future is going to be sorely disappointed. In fact, what we are just as likely to witness instead is just how little power the Congress actually has. As former U.S. Attorney Harry Litman put it recently, writing for the New York Times:
The upshot: Enforcing congressional subpoenas means protracted civil litigation. And there’s every reason to think it will be only more contentious and prolonged with the Trump administration, given the president’s instincts to thumb his nose at legal orders.
[...]
[T]hose nursing two years of pent-up frustrations watching the administration cross legal and ethical lines with impunity have to prepare for a long and bumpy road. The subpoenas will fly, but they will be met with staunch executive branch resistance and months — if not years — of delays, and will result in only partial success.
Still, there is absolutely no excuse for delaying the inevitable. There is no reason at this point not to follow up with subpoenas and then contempt filings and motions to enforce the subpoenas. The courts are ultimately going to tell us whether we can keep our republic or not, and whether the Congress that we worked so hard to elect in 2018 has any real power or not.
And we don’t have the luxury of time, either. Trump and his Republican enablers in the Senate have already polluted the federal judiciary with too many radical ideologues eager and willing to shift as much power to the executive as possible. That is one of the reasons why Brett Kavanaugh is now on the Supreme Court. Meanwhile, the courts of appeals that will decide many of these issues as they percolate up to the Supreme Court are being stacked with Federalist Society-vetted reactionaries just itching to put their ideological fixations into practice.
If now is not the time to put these issues in front of the courts, there will certainly never be a better time. This administration openly flouts the law and mocks the legislative branch that represents the will and interests of the American people. Donald Trump himself is a walking, talking template for the abuse of power. If Congress does not insist on its powers of oversight now, under these circumstances, when does it expect to?
Barring a significant electoral shift, the federal judiciary is not likely to become any more liberal in the lifetime of anyone reading this. And if an executive this unscrupulous is not checked, and if it somehow manages to get re-elected, and Republicans maintain their hold on the Senate, then there will be no more independent judiciary, just a group of the dictator’s legal lackeys, willing to defer to his every whim.