Trump Faces Test of Power in Court Clash Harking Back to Nixon
Trump Faces Test of Power in Court Clash Harking Back to Nixon
(Bloomberg) -- The Trump administration will square off against House Democrats on Tuesday over a crucial question: Is a congressional subpoena of White House officials a formidable weapon or an empty threat?
The battle, which is likely to reach the Supreme Court, could shape legal fights ranging from the quest for President Donald Trump’s tax returns to a conflict over his proposed border wall with Mexico. More broadly, it will help determine the extent of his and future presidents’ power.
The case, in federal appeals court in Washington, stems from the Democrats’ subpoena of former White House counsel Donald McGahn. The demand for his testimony came in the wake of Special Counsel Robert Mueller’s probe into Russian interference with the 2016 U.S. election and in the run-up to last year’s impeachment hearings.
But while those struggles ended in the president’s acquittal and now seem a world away, Tuesday’s court clash goes far beyond them.
The dispute “hits at the core of the constitutional separation of powers,” said Richard Pildes, a constitutional law professor at New York University. “When high-level executive officials refuse to comply with a congressional subpoena, this case will determine whether Congress can turn to the courts to resolve that conflict.”
The Supreme Court has scheduled a May 12 hearing on Trump appeals that raise sweeping questions about government’s investigative powers, including the president’s claim of immunity from local criminal probes while in office. That case, in which the Manhattan district attorney is seeking the president’s financial records, “is probably more of a threat to President Trump personally,” Pildes said.
The McGahn case is important because it will affect the continuing struggle between the legislative and executive branches, he said.
It began in August when the House Judiciary Committee sued after Trump directed McGahn not to comply with the subpoena. The Justice Department argued that as an immediate adviser to the president, he was “absolutely immune from compelled testimony before Congress.”
In November, U.S. District Judge Ketanji Brown Jackson in Washington ordered the lawyer to appear. Jackson, an appointee of President Barack Obama, said “compulsory appearance by dint of a subpoena is a legal construct, not a political one.”
The administration appealed Jackson’s decision, and a three-judge panel of the D.C. appeals court ruled in Trump’s favor in February. It narrowed the instances when the judiciary can resolve disputes between Congress and the executive, requiring that a member of the public, and not just part of the government, suffer some harm. Otherwise, the panel wrote, those two branches would be “swallowed up” by the courts.
Now, a larger panel of the appeals court’s judges will hold a rare “en banc” rehearing of the whole case (rarer still because it will be held by phone). The court has consolidated the McGahn case with a House lawsuit challenging Trump’s diversion of military funds to the border wall, another of the many clashes that have erupted between the two branches.
The composition of the court doesn’t bode well for the president. Seven of its active judges were appointed by Democratic presidents. The four named to the bench by Republicans include two appointed by Trump himself, Neomi Rao and Gregory Katsas. Both have recused themselves, without saying why.
The Judiciary Committee has urged the judges to uphold the district court’s decision compelling McGahn to appear and disputed the three-judge panel’s finding that the judicial branch has no business stepping into the case.
“That conclusion -- which no other court has ever reached -- is wrong,” it said in an April 16 filing.
The committee noted that presidents starting with George Washington had complied with congressional demands for information. That changed with the Watergate scandal, when the Senate had to sue for evidence it sought from President Richard Nixon’s administration, the House said. The case reached the Supreme Court, which in 1974 required Nixon to turn over the secret Oval Office tapes that would lead to his resignation.
Since then, the Democrats say, Congress has turned to the courts when necessary, and “this court and others have uniformly held that committees have standing to do so.”
The lawmakers sought McGahn’s testimony to show that the president had tried to obstruct the Mueller probe. Trump’s assertion of absolute immunity is “a particularly egregious and transparent attempt to avoid revelation of acts of misconduct,” a group of Watergate scholars not involved in the case said in a brief in support of the House.
The Trump administration has vigorously defended the three-judge panel’s ruling.
“For the first two centuries of this nation’s history, the political branches of the federal government resolved disputes between themselves through political contest and compromise, not by asking the judicial branch to pick a side in zero-sum litigation,” it argued in a March 30 brief.
That’s how Hans von Spakovsky, a lawyer at the conservative Heritage Foundation, sees it.
“When it comes to disputes between the executive branch and the legislative branch, that really is a political issue, and the courts should not get into it,” he said in an interview. “This has traditionally been handled through negotiations and accommodations.”
The administration argues in its brief that no legislation explicitly gives Congress the right to sue over claims of executive privilege. Allowing that “would shift power from the executive to the legislature while politicizing the judiciary,” it warned.
Congress has other recourse if an administration refuses to cooperate with an investigation, the Trump team contends, such as declaring it in contempt or blocking funding for the White House. The three-judge panel said as much in its February ruling.
“For a variety of reasons, I think that’s really not a useful tool for Congress and not something Congress would ever want to do,” said Jonathan Weinberg, a law professor at Wayne State University. “If there is no judicial recourse, when a president says ‘no,’ then no matter what, there’s really nothing that can be done.”
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