What Does Congress Do?
Congress’s power to investigate has deep roots in our political tradition, and the ability of Congress to investigate is embedded in our national charter, which gives Congress the power to legislate. As the Supreme Court has recognized, ‘[a] legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information . . . recourse must be had to others who do possess it.’ Given its function, the congressional power to investigate is quite broad, ‘indeed co-extensive with the power to legislate.’ Moreover, should the Executive Branch refuse to comply with congressional requests for information, Congress has tools available to enforce its oversight authority. (theusconstitution.org here)
Congress has the power of ‘inherent contempt’, with its own constitutional authority to detain and imprison an individual found in contempt until the individual complies with congressional demands. Congress may also rely on the judicial branch to enforce a congressional subpoena and seek a civil judgment from a federal court declaring that the individual in question is legally obligated to comply. To date, Congress has taken the less aggressive path and has sought and received civil judgements from the federal courts.
Where a putative witness refuses to disclose information pursuant to the President’s decision that such information is protected under executive privilege, ‘past practice suggests that the Department of Justice (DOJ) will not pursue a prosecution for criminal contempt’ (everycrsreport.com here). It’s probably safe to assume that the current DOJ will not willingly pursue a prosecution for criminal contempt in the current batch of cases and the House has consequently increased the pressure by scheduling a vote to hold Attorney General Barr in contempt. If successful, this will potentially give the House the authority to detain and imprison him should he continue to refuse to comply with the congressional subpoena; if they want to back away from the nuclear option, they can still ask the courts to enforce the order.
Don McGahn is also facing a contempt citation for refusing to comply with a subpoena. McGahn has already testified to Mueller that not only did Trump ask him to fire Mueller, but subsequently asked him to create a false document for the file saying that the president had not asked him to do any such thing. In and of itself, without any further investigation, that is the clearest case of obstruction of justice imaginable. In addition, McGahn’s testimony can’t be suppressed under the rubric of executive privilege, because McGahn has already spoken about it to the Mueller team, with the president’s permission. And in case Trump thinks he can take back that permission—think of stable doors and horses—there is always this finding of the Supreme Court in the case of US v Nixon:
The presidential privilege for confidential communications that do not concern the military, diplomacy or sensitive national security secrets may be rebutted as a result of the constitutional requirement to produce all relevant evidence in criminal cases. The Court stated that a general claim of presidential privilege based on public interest in confidentiality will not overcome the interest of justice in producing all evidence that is relevant. (legaldictionary.net here)
Unsurprisingly, the Trump administration has now expressed a willingness to negotiate the issue of handing over the unredacted Mueller Report and the related investigative files in return for a postponement of the contempt vote and a withdrawal by the Judiciary Committee of its recommendation of a finding of contempt. Even less surprisingly, Democrats say that they are willing to talk, they may even be willing to discuss reducing the scope of the subpoena, but they will not accept preconditions—especially those preconditions.
What Does Trump Do?
Trump had apparently assumed that, when he reached the White House, Congress would legislate according to his command—that they would be his support staff—apparently ignorant of the separation of powers within the American system of governance; the purpose of the other two governing branches, the Judiciary and the Legislature, is designed specifically to prevent the Executive branch from behaving like a King or Emperor. That ignorance was the underlying cause of many a temper tantrum. He assumed his support staff would necessarily include his appointees to top jobs in the administration and his fury when Geoff Sessions recused himself from the ‘Russia thing’, over a measly little thing like ethics, continued unabashed and unabated until he found Bill Barr—or, more accurately, until Bill Barr found him. The two are now apparently in agreement that it is the Attorney General’s job to protect the President against Congress, leaving Barr himself open to possible impeachment.
Trump’s supposed ignorance takes on a qualitatively different shape in view of what we’ve learned since his election from the Mueller report and its many, currently silenced, witnesses within the Trump team past and present, and from Trump himself. From his refusal to condemn the ‘fine people’ who marched through Charlottesville chanting ‘Jews shall not replace us’ and an assortment of other racist insults, to his admiration of strong-man dictators from Putin to Kim Jung Un, to his demand that his political opponents be investigated or imprisoned, and his chilling throw-away line that his term should be extended to six years because the Democrats had wasted the first two, Trump has shown his would-be authoritarian colours. The current attempt to relegate Congress to the side lines and place himself above the law would make an Emperor of President Trump. It doesn’t even seem too paranoid at this point to suggest that the strategy behind his election was something more than ignorance and supreme contempt for Congress and the Constitution. The seriously scary possibility is that this was part of an overarching agenda—if not Trump’s (because he is a bear of very little brain) then his various minders’, from the outcast Bannon, to the felon Manafort, to the racist Miller, and now to the legal battering ram, Barr, to name but the star players.
As usual with Trump, whether what appears to be Trump’s electoral and ruling strategies came about by chance or someone else’s design is difficult to say. Given what Schwartz called his pathologically impulsive and self-centred personality, it’s hard to believe that Pavlovian Trump could stick to a detailed plan that didn’t bring with it immediate reward. Maybe he could be kept on board with the occasional round-table event in which each member of his team is permitted, in turn, to tell the world what a blessing it is to be allowed to serve Trump. The most likely scenario, as I’ve suggested before, is that Trump, finding a crowd that cheered him, couldn’t help playing to it, and the crowd couldn’t help cheering even louder. Trump the showman had found his niche and his base had found him. Only after that did the parade of chancers, strategists, and manipulators—including but not limited to Bannon, Manafort, Miller, and Barr—see their opportunity and step in.
Putin has to be beside himself with glee. I don’t think the hackers, the troll farmers, and their alleged paymasters in Moscow could have believed their campaign would be this successful. They just wanted to get an idiot who is heavily indebted to them into the White House. But under the dead hand of the now-banished Steve Bannon, Trump’s scorched earth policy toward all things Obama, coupled with the long-time Republican ambition for small government, morphed quickly into dismantling the State from within, and doing from the inside what nobody could do from the outside—gutting the American dream.
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