Donald Trump has decided to shrug off the last vestiges of pretense and go full authoritarian—denying laws that require the IRS to turn over his tax forms, launching a lawsuit to prevent Congress from seeing his financial documents, and ordering a former White House staffer to ignore a subpoena on a matter of national security. Trump is deliberately bringing on a collision with Congress that's been avoided for 230 years—and the wreckage threatens to include the entire government.
That picture of Andrew Jackson that Trump keeps on his wall isn’t just there because it allows Trump to bask in the history of racism and cruelty. Jackson is also there for his most famous response to a court decision that he didn’t like: “John Marshall has made his decision; now let him enforce it!" With Trump gleefully defying every law he faces, and Attorney General William Barr standing by to administer absolution for all sins, just what action can be taken?
The direct order from Trump to block the testimony of former White House personnel security director Carl Kline is likely to be the first of Trump’s beyond-unitary-executive claims to get a further test. House Oversight Committee Chairman Elijah Cummings has already announced his intention to hold a vote on a motion of contempt directed at Kline. And he has pulled no punches in describing where things stand: “The White House and Mr. Kline now stand in open defiance of a duly authorized congressional subpoena with no assertion of any privilege of any kind by President Trump.”
Rep. Cummings states that Trump “believes that the Constitution does not apply to his White House” and that he can order his staff to do anything, legal or not. And he cites an astounding point: Since Democrats took control of the House, the Trump White House has not produced a single official to testify or turned over “a single scrap of paper.”
This is an existential fight for the Constitution of the United States, and the battle is already well underway.
As this 2007 article from the Associated Press makes clear, Cummings can launch a contempt citation in the Oversight Committee, and it would then move to the full House for a vote. Assuming a majority votes to support the citation—as it surely will in this case—that citation is then turned over to the U.S. attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action.”
In legal terms, “shall” is not optional—but that’s certainly not how the Trump administration has been treating it. After all, the instructions to the IRS are also that it “shall” produce the documents upon request, but the Treasury Department is refusing to act on the plain meaning of the law. William Barr could easily instruct the U.S. attorney to simply not take up the charge, putting attorney Jessie Liu in exactly the same position as Kline: obey Trump, or obey the law.
And when it comes to refusing to take up a charge of contempt of Congress … this wouldn’t be the first time. Because another Republican has already blazed this trail.
In 1982, then-EPA Administrator Anne Gorsuch refused to turn over documents subpoenaed in relation to Ronald Reagan’s rollback of environmental regulations. A contempt citation passed the House 259-105, and the Justice Department … simply refused to take up the case, “shall” be damned. Instead, the Justice Department sued the House of Representatives, claiming that trying to look at the documents was “interfering with the authority of the executive branch.”
It’s easy to predict that this is exactly where the contempt case against Kline is heading. The legal case Trump has launched against the House Oversight Committee regarding his own finances serves as a reminder that Trump loves to sue. He’s long found success in dragging cases from one court to another, wearing out opponents and making issues irrelevant by the simple agency of delay.
Trump will not produce his taxes. Trump will take every step to block the release of his financial forms. He will go the wall to block Kline, or any other official, from giving testimony before Congress.
Trump is escalating his war with Congress deliberately. This is his 2020 campaign.
The results of that court case in 1982 may at first seem hopeful, because in the final result Reagan and Gorsuch produced the requested documents. But they did so only after the court essentially turned the case back to Congress and the White House, telling them to work it out on their own.
It is hard to imagine any circumstance where Trump, without some compelling force, would accede to requests from the House. It doesn’t matter that the House has a perfect right to the information and testimony it’s requested. For Trump, knowing that he is generating strife and division isn’t a side effect: It’s the goal. And for Barr and Mitch McConnell, this is a perfect time to force their long-held vision of a unitary executive perched atop the mechanisms of government unchallenged.
In fact, Elijah Cummings has already tried to negotiate with the White House for Kline’s testimony. The result was exactly as expected.
“The White House claims that ‘under no circumstance’ will it provide to Congress any information about any specific White House employee—regardless of whether that employee lied to federal investigators about communicating with the Russians or continued working in the White House after the FBI reported derogatory information involving domestic violence. The White House has disregarded numerous examples of the Committee obtaining exactly this type of information under previous Chairmen.”
Trump’s goal here isn’t just to protect himself. It’s to demean Cummings, diminish the role of Congress, and simply break the government.
Assuming that Kline or other officials are held in contempt, and assuming that some attorney, somewhere, is eventually ordered to take them into court, the charge is only a misdemeanor, with a maximum punishment of a $100,000 fine and a one-year sentence in federal prison. And there is nothing—nothing—that would stop Trump from simply pardoning Kline if the case reached that point.
There’s also the possibility that this case, or others involving Trump’s resistance to Congress, could reach the Supreme Court. Neither the executive branch nor the legislative branch has been in a hurry to get there in the past, because a definitive ruling on the limits of executive privilege vs. congressional authority could make life difficult for either side. However, now that beer fan Brett Kavanaugh has been seated, Trump may actually be in a hurry to get a case before that court and simply have it grant him the power to kick Congress every day and twice on Sundays.
For more than two centuries, the United States has operated not just on laws, but on the understanding that the people at the highest level of government would be embarrassed to be found in violation of those laws. Trump isn’t embarrassed. He’s excited. Barr has made it clear that, no matter the severity of his actions, there will be no consequences. Trump can stand “in open defiance” of Congress all day, every day. Trump will tweet about it. Barr will smirk about it. McConnell will joke about it. Republicans will fundraise off of it.
Endgame may not open in theaters until Friday, but in Washington, it’s already playing.