The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Donald Trump

On Congressional Inquiries and Presidential Defiance

|The Volokh Conspiracy |

Over at The Atlantic, I have a new piece on the escalating tensions between the Trump White House and the Democratic House of Representatives. The House has been unusually aggressive in its pursuit of oversight of the executive branch, which has often veered into an unofficial and now more official impeachment inquiry. For its part, the White House has been unusually defiant of congressional investigations, from the president's early declaration that the administration would fight all subpoenas to the White House counsel's announcement of a policy of total noncooperation.

The piece revisits the constitutional rationale for a congressional investigative and oversight function and the challenges of performing that task in an environment of partisan polarization. Presidents have some responsibility to cooperate with congressional oversight when possible, though less of a duty to facilitate their own impeachment. Even so, presidents also have some legitimate reasons for obstructing congressional investigations, and the tools available to Congress to coax reluctant administrations to be more cooperative are ultimately more political than legal.

Here's a taste:

Pelosi's House seems to have lost much of its leverage over the Trump administration. The president seems to be assuming that he will inevitably be impeached and that there is no legislative policy agenda to be advanced, and so he has nothing more to lose by refusing to cooperate further with the House. He is now positioning himself for the Senate trial and the electoral campaign.

Read the whole thing here.