Trump and Barr Vs. Congress Can Only End in a Stalemate

(Bloomberg Opinion) -- The brewing conflict between the House Judiciary Committee and Attorney General William Barr — over whether he will testify this week as scheduled, and under what ground rules — is a symptom of a much bigger emerging clash between Congress and the president. The most probable outcome is a stalemate: because the framers designed the Constitution that way.

We have entered a new phase of the constitutional stress test that began with President Donald Trump’s election and shows no signs of winding down. In the first phases, Trump pushed the limits of executive power on immigration, and went after the criminal justice system in the hopes of delegitimizing it.

This time, the initiative comes not from the president, but from a different branch of government.

The Democratic House intends to exercise its oversight and investigation powers to hound Trump right up until the 2020 presidential election. To do so, it must either get cooperation from executive branch witnesses or compel them to appear using the power of subpoena.

Trump is welcoming the challenge. He’s reportedly told dozens of current and former executive branch officials to refuse to testify before Congress, setting the stage for a battle royale with Congress.

This fight will be different from the government shutdown. That conflict, too, pitted Democratic congressional leadership against the president. But the shutdown fight, although unusually long, was an ordinary political struggle, carried out for the most part under the auspices of mutually accepted constitutional rules: Congress had the power to pass the budget. Trump had the power to sign or veto. There was no dispute about these basic powers.

To be sure, Trump threatened to act in a potentially unconstitutional manner by using funds not designated by Congress to pay for the border wall. But the threat wasn’t the determinative element in the struggle. (Trump made good on the threat even after Congress approved some border funding, and the question of whether he can spend that extra, unallocated money is now before the courts.)

In contrast, if House Democrats actually use their subpoena power to force executive branch officials to appear under threat of arrest, and if current or former Trump administration officials refuse to appear or to testify, that will amount to a genuine constitutional conflict.

Neither side agrees on where the line should be drawn between the power of the legislative branch and the privilege of the executive.

And the courts are extremely unlikely to intervene. The classic situation in which the judiciary refuses to adjudicate a conflict is where the relevant powers have been assigned by the Constitution to the legislative and the executive branches.

In 1975, the U.S. Supreme Court held that the judiciary would not intervene to quash a Senate subcommittee subpoena — even though the lower federal courts had said the subpoena violated the First Amendment. Issuing subpoenas, the court held, was “essential to legislating.” It therefore fell within the provision of the Constitution that protects members of Congress from being “questioned in any other place” (like a court) for their activities of “speech and debate” in Congress.

No justice on the current Supreme Court would relish getting in the middle of an interbranch conflict that doesn’t require the court to take a stand — the liberals because they might lose the fight, and the conservatives because victory would have the pyrrhic effect of making them look like a political body, potentially emboldening Democrats on the eve of the 2020 election.

So what happens next?

There is no express provision in the Constitution giving Congress the power to investigate, issue subpoenas or question cabinet officials. That’s in contrast to constitutional arrangements in a number of parliamentary democracies, which provide a specific right to the legislature to question cabinet or other executive officials, a right known as “interpellation.”

But members of Congress from early in the history of the Republic acted as though they had investigative and subpoena powers similar to those of the British Parliament. Early Congresses found several witnesses in contempt, and in 1821, the Supreme Court ratified the practice by saying that holding people in contempt was part of Congress’s implicit constitutional authority, necessary so that Congress could fulfill its function in a democratic government.

There’s also no provision in the Constitution saying that the president or the other executive branch officials enjoy any special privilege of exemption from subpoena. Like Congress’s subpoena and contempt powers, executive privilege is the product of constitutional inference, custom and raw assertion of power.

George Washington refused to give Congress his correspondence with U.S. ambassadors, reasoning (with an assist from Alexander Hamilton) that his constitutional authority to conduct foreign policy included the capacity to do so effectively — including by keeping some matters private from Congress.

The framers provided no remedy for a struggle between Congress and the president over congressional subpoenas — because they didn’t specify either the right of investigation or executive privilege in the document. In this conflict between constitutional powers, there’s no express constitutional answer.

And without the judiciary, there’s no referee.

The upshot is that you can expect stalemate. Congress can keep harassing and embarrassing the president. The president can keep resisting. Ultimately the check on both branches is public opinion — in the form of the voters who will go to the polls in 2020 and (maybe) resolve the conflict by picking a winner.

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

©2019 Bloomberg L.P.