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WASHINGTON – The Trump administration has stepped up its criticism of Congress on Wednesday as the Justice Department refused to let a senior official testify at Capitol Hill, President Trump vowed to fight against what he has qualified of "ridiculous" summons to appear before the legislator.
"We are fighting all subpoenas," Trump told reporters in front of the White House. "They are not impartial people. Democrats are trying to win 2020. "
This decision was added to the already remarkable week of the Trump administration after the publication of the report of the special council, Robert S. Mueller III, revealing the scale of the Russian operation to help Mr. Trump win the elections of 2016 and detailing his past. attempts to prevent an investigation that he considered to be endangering his presidency.
Trump's wave of maneuvers this week to block several congressional investigations has ushered in a new phase of constitutional friction that could redefine the dark boundaries of congressional power to control the executive power – and the power of the United States. Presidents keep government affairs secretive of lawmakers.
On the political front, Trump's strategy paves the way for an open war with House Democrats ahead of the 2020 elections. The results could be unpredictable at a time when President Nancy Pelosi has have attempted to limit liberal demands for impeachment proceedings – which are unlikely to result in the dismissal of Mr. Trump, as a significant number of Republican Senate members should vote for them – devoting their energy to vigorous administrative control investigations.
In law, Mr. Trump's declared tactics of fighting each subpoena come up against big obstacles, legal experts said. The House can vote in favor of contempt of public servants who refuse to appear in response to subpoenas and ask judges for orders requiring them to comply.
Disputes over the legitimacy of these subpoenas will create precedents requiring both branches to make good faith efforts to meet the needs of the other. He will also seek to find out if the executive's privilege is lifted in cases where the Trump administration has already leaked some of the information that the president is trying to keep from Congress.
But in the end, getting a trial may not be the goal. By essentially forcing Democrats to continue to sue in order to enforce their subpoenas, Trump will fight what he may call "presidential harassment" and delay the investigations themselves.
On Wednesday, the Department of Justice announced that a human rights division official, John Gore, would not appear on Thursday to appear before a subpoena to testify about the addition of police officers. a question about citizenship in the census. This week, White House lawyers have indicated that they would ask former White House lawyer Donald F. McGahn II, and other former public servants not to attend. comply with subpoenas, said a person familiar with the legal strategy.
Together, the week's events made it clear that Mr. Trump had adopted a strategy of fierce resistance to the House's monitoring efforts – delighted to give up even the pretext of trying to negotiate compromises and compromises with the House. institution controlled by its political opponents.
"The president is trying to repeal a Congressional oversight power that goes back to George Washington's administration," said Charles Tiefer, a former House lawyer, former law professor at the University of Washington. Baltimore. He said that "the completeness and intensity of this presidential stone wall" exceeded everything he had seen during his 40-year career.
He added: "Congress can call witnesses about problems with the executive at any time. Otherwise, there is no evidence of whether the executive is doing the work of the public or simply exercising gross power. "
Addressing reporters Wednesday, Mr Trump cited the end of the special advocate's investigation to declare that he had been the subject of a sufficient investigation . "I thought in two years we would be done," he said. "No, now the House will start subpoenas." He added, "I say that's enough."
He also falsely stated that Mr. Mueller's investigators "did not obstruct". In fact, they presented a great deal of evidence that he had committed this crime on several occasions, without deciding to accuse him, solely because the Ministry of Justice considered that the presiding officers were temporarily sheltered from indictment.
And on Twitter, Mr. Trump proposed an innovative idea to defeat any impeachment procedure if the Democrats in the House tried to make progress with them: he would have the Supreme Court order them to stop.
"If Dems fans ever tried to get deportation, I would go first to the US Supreme Court," Trump wrote. two posts. "Not only is there no" great crimes and misdemeanors, "there are no crimes on my part."
Nothing in the Constitution or in American legal history gives the Supreme Court the power to decide whether Congress has misidentified what is considered a crime or serious crime for the purposes of impeachment.
Although Mr. Trump denounced the subpoena to Mr. McGahn, the legal team of his administration did not advance any legal theory explaining why the privilege of the executive – the power the president to keep secret some internal information from the executive power – would prohibit the type of testimony of the judiciary of the House. The committee asks the former White House lawyer: essentially, to come back to what he has already said to Mr. Mueller.
Mr. Trump waived his privilege of letting Mr. Mueller freely question Mr. McGahn about their conversations, and Attorney General William P. Barr made Mr. McGahn's accounts public by disclosing most of his report. the special advocate – probably an additional waiver of this privilege.
Mr. McGahn expressed his frustration with the situation, according to someone close to him. In 2017, he warned the president to cooperate with Mr. Mueller and felt that if Mr. Trump had followed his advice, he would argue much louder that their conversations are protected by the privilege of the executive, said the nobody.
Mr. McGahn was the main witness to many of Mr. Trump's actions that seem to be most clearly in keeping with Mr. Mueller's criteria for attempting to obstruct justice. Among these, there was an episode last year when Mr. Trump pressured Mr. McGahn to create an internal document in the White House that would falsely deny that the President was ordered to have Mr. Mueller dismissed.
Several legal experts said Trump's promise to fight all subpoenas was a departure from how former presidents faced Congressional scrutiny investigations by their opponents. The White House and lawmakers have generally solved the problem of internal information about the executive power through negotiations and accommodation – a practice that the courts have repeatedly stated that they wanted to see.
In contrast, Mr. Trump's scorched-earth strategy appears to have the goal of creating a long fight for each assignment, by giving the House the choice between having his summonses ignored or going to court to ask a judge to order the administration to respect them. These lawsuits would then lead the courts to question whether Mr. Trump had the power to block the subpoena.
While there are relatively few definitive judicial precedents in cases where the executive power to keep internal internal private information stops and where the power of Congress to access it begins, some cases may be remarkable because of the nascent fighting. said specialists.
In a 2008 district court judgment asking whether a former White House president George W. Bush's lawyer, Harriet Miers, could be compelled to testify before Congress, a judge said she should present and decide not to answer the potentially privileged questions 1. by a. This might suggest that Mr. McGahn should also appear before the Judiciary Committee of the House.
And in a district court decision involving internal documents at the Department of Justice in 2016, the Obama administration wanted to keep the secret of Congress, a judge ruled that the privilege of the executive no longer protected the documents disclosed in a report of the Inspector General. Because Mr. Barr has released most of Mr. Mueller's report, this principle could limit Trump's success in asserting the privilege of preventing Congress from receiving testimony and documents about the events described. in the report.
But each of the emerging struggles raises somewhat different legal issues that the courts should settle.
The battle around the 2020 census evidence is based on the Trump administration's insistence that a branch lawyer accompany Mr. Gore to ask him not to answer some of the questions that may be the subject of the report. privilege of senior management.
The House Oversight and Reform Committee invokes a long standing rule of the House that witnesses may be accompanied in their testimony by personal lawyers but not by those of the government, although it has proposed to leave Mr. Gore leave the room to consult a departmental lawyer.
The Trump administration objected, saying in its letter on Wednesday that the rule "would unconstitutionally infringe the prerogatives of the executive power." It ignored the fact that the Constitution empowers the House explicitly to set the rules of its own procedures.
Mr. Gore still had a legal obligation to report on Thursday, Maryland Representative Elijah E. Cummings, Democratic Chair of the Oversight Committee, said in a statement.
"President Trump and Attorney General Barr openly order federal employees to disregard citations to appear before Congress and not to show up – without any affirmation of a valid legal privilege," said Mr. Cummings. "These employees and their personal attorneys should think very carefully about their own legal interests rather than letting themselves be carried away by Trump administration's treacherous schemes."
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