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President Donald Trump greets people after delivering his State of the Union address to a joint session of Congress on Capitol Hill in Washington, February 4, 2020.
The election of a Democratic president and a Democratic Congress in November will be more than the normal alteration of power between two major parties in a mature democracy. It will be deliverance.
Democratic voters will want Congress to support, not check, the president whose election victory ends the nightmare of the Trump presidency. There will be little political reward for congressional Democrats to enact legislation to harden democratic institutions against future abuses of presidential power.
But that is exactly when Congress must enact reforms. Trump himself may be an aberration, but we cannot assume that the abuse of presidential power is. It is now rightist dogma that the Constitution vests broad and “illimitable” power in the president. A smarter, more disciplined, less brazen future president may be even more of a threat to democracy. The day could come when Democrats in Congress will regret failure to enact reforms while they had the chance.
I know whereof I speak.
As a House member, I introduced legislation in 2009 to remedy abuses in which the George W. Bush administration engaged. The legislation would have strengthened Congress’s power to enforce subpoenas. And the legislation would have addressed the sinister role that the Department of Justice’s Office of Legal Counsel has come to play in the abuse of presidential power.
Senator Obama, the former constitutional law professor, promised in his 2008 campaign to restore checks and balances. President Obama was less enthusiastic once in office. He encouraged congressional Democrats to attend to more immediate issues, not hypothetical future abuses of presidential power, abuses in which he assured us that his administration would never engage. Safeguards against potential abuse of presidential power slid down our priority list.
That legislation would have been very helpful to House Democrats in their fights with the Trump administration.
Trump has flouted the House’s subpoenas and has gotten away with it so far. Trump promised a “warlike” response to congressional investigations even before the new Congress took office after the 2018 election. “We’re fighting all of the subpoenas,” he told reporters. “Look, these are not like impartial people.”
Trump himself may be an aberration, but we cannot assume that the abuse of presidential power is.
None of this should have come as a surprise. House Democrats learned in the George W. Bush administration—and House Republicans learned in the Obama administration—that Congress’s power to enforce subpoenas is easily frustrated by an administration determined to withhold information.
Congress’s oversight power is foundational to any check on the president. Neither Congress nor the courts nor voters can check presidential power abused in secret. An abundant body of law and democratic thought supports Congress’s subpoena power, the power of Congress to inform itself and the American people.
Enforcement of judicial subpoenas is immediate and effective. Trump’s associates may not have complied cheerfully with the Mueller investigation, and some may have committed perjury, but none openly defied subpoenas, at least not for very long.
In theory, Congress’s subpoenas have the same legal force as judicial subpoenas. In practice, Congress’s enforcement power is wanting. Trump’s obstruction of Congress’s investigation is an impeachment count, but a check on presidential power that requires a two-thirds vote of the Senate is hardly any check at all now.
The House has the power by its own vote to throw in jail someone who disobeys a congressional subpoena, just as judges can order from the bench that witnesses who refuse to answer proper questions in court be incarcerated until their attitude improves. The Supreme Court first held in 1821 that Congress has that inherent power to guard against “rudeness, caprice, or even conspiracy.” There is no credible legal authority to the contrary.
There are reasons that Congress has rarely used that power since the Civil War and not at all since 1935. It would rankle many Americans to see fellow citizens jailed by a partisan vote of Congress. The debate would be a spectacle despite every effort to appear judicious. On the right, the briefest jail time for contempt would confer perhaps even greater martyrdom than court-martial for war crimes. And if the contemnor is protected by the Secret Service, there is the nightmarish possibility of an armed confrontation when the House sergeant at arms attempts to take the contemnor into custody.
There is a criminal contempt of Congress statute that is almost identical to the criminal contempt of court statute. The Department of Justice claims discretion whether to prosecute or not, however. When House Democrats referred contempt of Congress for defiance of congressional subpoenas by the George W. Bush administration, the Bush administration refused to prosecute. When House Republicans referred criminal contempt of Congress for defiance of congressional subpoenas by the Obama administration, the Obama administration refused to prosecute. And when House Democrats referred criminal contempt of Congress for defiance of congressional subpoenas by the Trump administration, Attorney General William Barr refused to prosecute himself or other administration officials.
Instead, the House has sought to enforce subpoenas through the legal strategy established by the House a decade ago: The House files lawsuits that ask the court to decide whether the House is entitled to the subpoenaed information, and if so, to order the administration to comply with the subpoena. If an administration official disobeys the court’s order, then the official is in contempt of court.
In theory, Congress’s subpoenas have the same legal force as judicial subpoenas. In practice, Congress’s enforcement power is wanting.
The problem is that lawsuits take time, as Adam Schiff pointed out to rebut the argument in the Senate impeachment trial that the House should have waited for the judicial process to play out before proceeding to impeachment. This extensive delay is a serious obstacle even when the parties act in good faith, which the Trump administration predictably has not.
The House has won repeatedly in court, but the decisions are still on appeal. The House has yet to receive the subpoenaed information that the Trump administration refused to produce. Trump’s allies, sometimes even when on the record, make little pretense that Trump’s defenses to the subpoenas have legal merit. Trump’s obvious strategy is to delay, to run out the clock, despite court rules that forbid dilatory tactics and frivolous legal arguments.
Congress can enact legislation that would greatly strengthen its enforcement of subpoenas.
At a minimum, Congress should enact legislation to expedite lawsuits to enforce congressional subpoenas. Congress can require that courts give the lawsuits priority, and can shorten the time allowed for court filings. Congress can streamline appeals. Congress required that Voting Rights Act cases be tried by a special three-judge court, rather than by a single judge, with direct appeal to the Supreme Court. That would hasten an enforceable final decision by months, and a three-judge court would be less of a crapshoot than assignment of a single trial judge. Congress’s message to the courts would be clear: Take these cases seriously, and decide one way or the other, but decide.
A monetary fine has many advantages over incarceration as a sanction under Congress’s inherent contempt power. There would be no melodramatic TV images of the contemnor in handcuffs and no prospect of armed confrontation between the House sergeant at arms and the Secret Service. There are scattered about the legal authority on Congress’s inherent contempt power references to the “power to fine and imprison.”
Neither the House nor the Senate appears ever to have imposed a fine as a sanction for defiance of subpoenas, but the Supreme Court has upheld fines for contempt imposed by trial judges. Some House Democrats have considered fines as a sanction against Trump administration officials for contempt, but without any known precedent, caution prevailed, as it too often has.
I introduced legislation a decade ago that explicitly provided that the House could impose fines under its inherent contempt power. There would be additional fines for each day of defiance of congressional subpoenas. The House could collect the fines through the federal courts, which routinely collect fines and judgments. Contemnors could argue that the subpoenas are improper and challenge the fines, but not without risk: The meter would run while the court considers the legal arguments.
There is another advantage of fines to enforce compliance with subpoenas under Congress’s inherent contempt power: Such fines are likely not subject to the president’s pardon power.
The most effective remedy for disobedience to congressional subpoenas is criminal prosecution, however. The Department of Justice first claimed discretion whether to prosecute contempt of Congress in the Reagan administration. There was then a strong independent-counsel law enacted after Watergate. If DOJ refused to prosecute senior administration officials, then Congress could have required appointment of an independent counsel. Administration officials did not ignore congressional subpoenas when they feared prosecution for contempt of Congress.
The independent-counsel law expired in 1999 without lament from Democrats or Republicans. Democrats thought that Republicans abused the law to smear Clinton administration officials. Cabinet members incurred ruinous legal fees to defend against flimsy evidence of misconduct unrelated to their duties in office. And, of course, there was the Ken Starr investigation. Republicans were happy at the end of the Clinton administration to spare future Republican administrations from similar treatment. Since then, officials of the George W. Bush administration, the Obama administration, and now the Trump administration have defied congressional subpoenas without fear of prosecution—in fact, probably with the assurance that they would not be prosecuted.
Officials of the Bush, Obama, and now Trump administrations have defied congressional subpoenas without fear of prosecution.
The legislation that I introduced in 2009 gave Congress the power to require an independent counsel specifically to prosecute contempt of Congress, not anything and everything. Congress could bypass DOJ and demand appointment of an independent counsel with full power to investigate and prosecute. Administration officials could argue that a congressional subpoena is improper as a defense to prosecution, but they’d risk “imprisonment in a common jail for not less than one month nor more than twelve months” if the judge disagrees.
DOJ’s Office of Legal Counsel supposedly exists to provide detached legal advice to the president and the executive branch. The potential for abuse is great. OLC can and has contrived legal arguments that allow or even require whatever the president wants to do. It is almost impossible to prosecute an employee of the federal government, civilian or military, if OLC advised at the time that the conduct was legal. In effect, OLC grants prospective pardons. OLC’s opinions and the conduct that the opinions approve are often secret, and therefore beyond challenge. OLC opinions have frequently concluded that statutes enacted by Congress are unconstitutional and can be ignored—not challenged, ignored—and sometimes contradict court decisions.
OLC is probably best known for the “torture memos” that advised in the George W. Bush administration that the president could ignore laws that forbade “enhanced interrogation” techniques regarded in international law as torture. OLC advised, also in the George W. Bush administration, that the president could order warrantless wiretaps, despite a 1978 law to the contrary. OLC advised in the Obama administration that the president could order “extrajudicial” assassination abroad of American citizens who were suspected of plotting terrorist attacks.
Special Counsel Robert Mueller’s legal team decided not to investigate possible criminal conduct by Trump personally because of a Nixon-era OLC opinion that the president cannot be prosecuted for federal crimes while in office. OLC advised that senior advisers to the president are “absolutely immune” from congressional subpoenas, and that there is no proper “legislative purpose” for many congressional subpoenas issued to the Trump administration, despite a wealth of court decisions affirming that Congress has broad investigative power. OLC advised that the director of national intelligence should not provide Congress with the whistleblower’s complaint about Trump’s call with the president of Ukraine. (The inspector general notified the intelligence committees anyway.)
Those are OLC opinions that have become public, sometimes years after OLC issued the opinions. There is no way to know what opinions remain secret, or what other conduct was undertaken with OLC’s legal blessing. Did OLC approve the assassination of Qassem Soleimani in Iraq, a sovereign country, on official travel to meet with Iraqi government officials? Did OLC advise that the assassination was legal so long as there was an “imminent threat” of attacks on Americans?
Russ Feingold, then senator from Wisconsin, introduced legislation in the Senate and I introduced identical legislation in the House to require that most OLC opinions be public, and to require that OLC promptly notify Congress if it concludes that a law is unconstitutional or otherwise not binding on the president. That would help, but is not enough now to remedy OLC’s worsening abuses. OLC cannot just answer to the attorney general and the president. OLC must be independent.
Congress has many examples of independent executive branch agencies to work from, agencies that do not suffer from OLC’s recent obeisance to the president.
The Reagan administration challenged the old independent-counsel law as an unconstitutional encroachment on the president’s power to appoint and remove executive branch officials. Chief Justice William Rehnquist’s opinion concluded that “the conflicts of interest that could arise in situations when the Executive Branch is called upon to investigate its own high-ranking officers” justified the statute. The conflicts of interest when OLC is called upon to determine the president’s power are not at all hypothetical. The need for independence is glaring.
Congress has broad power to structure executive branch agencies to provide independence. Almost the entire alphabet soup of regulatory agencies—SEC, CFTC, FTC, FEC, NLRB, FDIC, FCC—are multimember agencies required to have partisan balance. Members generally serve a certain number of years and can only be removed by the president for misconduct, not for policy disagreement.
The law requires that the president appoint inspectors general “without regard to political affiliation and solely on the basis of integrity and demonstrated ability” in relevant areas, and requires that inspectors general report both to the agency head and to Congress. Some hacks have slipped through, but Trump was impeached because the inspector general for the intelligence community acted independently as required by law.
The president appoints the comptroller general for a term of 15 years from a list of three or more candidates recommended by congressional leadership. The comptroller general, like inspectors general, has one foot in the executive branch and one foot in the legislative branch. The Supreme Court struck down the portion of the statute that gave Congress the power to remove the comptroller general, but left alone the appointment procedure.
In short, Congress has many examples of independent executive branch agencies to work from, agencies that do not suffer from OLC’s recent obeisance to the president.
Discussion of needed reforms to checks and balances seems like a distraction in the midst of an urgent confrontation, like a doctor lecturing a patient in cardiac arrest about diet and exercise. But we cannot assume that to restore democracy we just need a new president, a president capable of shame, a president who respects the rule of law and constitutional norms. Trump’s presidency has revealed great vulnerabilities in our democratic institutions. Impeachment cannot be the only check on the abuse of presidential power. We must harden our democratic institutions.
Such reforms will only do so much, of course. Trump’s presidency has also revealed great vulnerabilities in our political culture, which matters more. Americans must want democracy for democracy to survive. The Constitution has always worked better in practice than in theory. Despite our adulation of the framers, the Constitution has worked because Americans have made it work, not because of the brilliance of the design of our system. There must be deep soul-searching by those who have or aspire to political power: Why have so many Americans lost faith in democracy, and how can we restore their faith?
