The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Stanford law professor (and former federal judge) Michael McConnell had a Washington Post op-ed this week suggesting that many critics are over-reacting to the Trump Administration's refusal to cooperate with Congressional investigations. It begins:
Never before have so many congressional committees issued so many subpoenas demanding documents and testimony from so many executive-branch officials, with so little attempt at negotiation or accommodation. President Trump says he will invoke executive privilege on "all" of them. Attorney General William P. Barr balks at appearing before a House committee to discuss the Mueller report without changes in the format. Democrats threaten impeachment, and solemn commentators proclaim that Trump's refusal to comply subverts America's constitutional system of checks and balances.
How quickly Washington forgets — when it is convenient. Trump is not the first president to resist congressional investigation of the inner workings of his administration, and Barr is not the first Cabinet officer to negotiate the terms of his appearance before a committee. In fact, the responses are unremarkable.
As Professor McConnell notes, prior administrations have often been quite uncooperative with legislative oversight committees, going all the way back to the Washington Administration. Moreover, the refusal to cooperate has sometimes provoked a stern response, as when the House voted to hold Attorney General Eric Holder in contempt of Congress for failing to cooperate adequately with the "Fast and Furious" probe (and Holder's not the only one, as this CRS report discusses).
Professor McConnell concludes:
What does this history tell us? That disputes over congressional demands for documents and testimony are as old as the republic. Congresses demand; presidents resist. Generally, after a political tussle the two sides meet somewhere in the middle. As a leading scholar of the subject, Cornell law professor Josh Chafetz, has written, "most disputes between the executive and legislative branches over information have historically been settled by negotiation and accommodation."
This process cannot take place if one side assumes that it has unilateral authority to demand whatever it wishes and that any delay or resistance from the other branch is categorically illegitimate. Trump should abandon his attempt to defy "all subpoenas," but the House should recognize that the executive is an equal branch of government with constitutional privileges of its own. For a president to assert the rights of his office, as almost every president has done, is neither blameworthy nor impeachable.
Professor Chafetz, for his part, has a different take, as he noted in this Twitter thread. In Professor Chafetz's view, the difference between the Trump Administration's behavior and that of prior administrations is that, in the past, resistance to congressional oversight has usually focused on specific requests for specific information about specific matters, such as the Bush Administration's decision to fire multiple U.S. Attorneys or the Obama Administration's handling of the"Fast & Furious" scandal. Here, however, the Trump Administration appears to be resisting oversight across the board. This, according to Professor Chafetz is "different not just in degree but in kind."
It's not a claim that Congress doesn't deserve access to some particular information; it's a claim that Congress doesn't deserve access to any information."
That, in turn, amounts to a claim that Congress has no legitimate oversight role. And that claim is radically different from the claim that some specific piece of information is privileged.
And here's the kicker from Professor Chafetz:
To my mind, denying that Congress has any role whatsoever in overseeing the executive ought to be understood as an impeachable offense.
Indeed, it is the prospect of potential impeachment proceedings, in part, which induces executive officials to cooperate with congressional investigations in the first place. As a general matter, the White House doesn't turn over documents just to be nice, but because there is an implicit threat of potential escalation and sanction -- ultimately impeachment itself -- if legislative investigation is unduly obstructed.
Although Professor McConnell is not on Twitter, he did send a response to Professor Chafetz, which I am posting with Professor McConnell's permission.
1. I agree with you that Trump's statement that he would defy "all subpoena" is overbroad, which is why the conclusory paragraph of my op-ed stated that "Trump should abandon his attempt to defy 'all subpoenas.'" (I do not agree with you that overbroad claims, unaccompanied by action, are impeachable offenses.)
2. Mr. Trump has the self-destructive tendency to deliver blunderbuss declarations, which are quickly abandoned or modified. That is the way I interpret his "no subpoenas" tweet.
3. Already, two Trump administration officials (Barr and Kline) have testified in response to congressional demands, and Barr has agreed to testify in the House if the House committee will employ the ordinary procedures used for cabinet officials. "Apparently, "defy all subpoenas" means "comply with some of them."
4. The Supreme Court has held that the content of communications between the President and his aides is "presumptively privileged" on the sensible ground that Presidents need to be able to talk candidly before decided on acts. Trump waived that privilege for Mueller, but he has no obligation to do so with every House committee that asks.
5. President Obama invoked executive privilege in the Fast & Furious investigation on the ground that any testimony regarding internal deliberations (even by low-level officials in a Department) would "inhibit the candor" of executive-branch deliberations and that "compelled disclosure would be inconsistent with the separation of powers established in the Constitution."
6. I have not seen all the House committee demands for information, but quite a few of them seem to intrude on the deliberative process privilege, or others.
7. Ordinary congressional oversight involves the administration of congressionally-authorized offices and authorities. (Fast and Furious is a clear example.) Many of the current investigations have to do with President Trump's exercise of his own constitutionally-vested powers. These raise delicate unresolved questions of separation of powers.
8. In the past, congressional committees have proceeded in a less precipitous fashion: asking for testimony first, narrowing their demands in response to legitimate executive branch concerns, and issuing subpoenas and threatening contempt only when discussions break down.
9. Let us see how this plays out in the context of actual congressional demands and actual executive responses. There is too much hair-trigger talk of defiance on one side and contempt, sanctions, and impeachment on the other--and too little of the "negotiation and accommodation" your excellent scholarship has identified as characteristic of the past.