David Cay Johnston offers Trump a lesson in constitutional government: His effort to defy Congress is unlikely to end how he wants
Donald Trump thinks that he can thumb his nose at Congress because the federal courts will protect him. But that’s not the way our Constitution works. It’s also not the way the courts have held in cases going to the early days of our Constitution.
But since tens of millions of Americans take Trump’s words as gospel, let’s look at the facts, starting with Trump’s blanket declaration of noncooperation with House inquiries.
“There is no reason to go any further, and especially in Congress where it’s very partisan — obviously very partisan,” Trump told The Washington Post Tuesday night in declaring that cooperating with House investigations is not going to happen.
Nowhere does partisanship play a role in our Constitution, written by men who largely disliked political parties as a concept. Many presidents have had to deal with the opposition and at times a hostile opposition, among them presidents Andrew Johnson, Richard Nixon, Bill Clinton and Barack Obama.
Trump’s declaration is an extension of his dictatorial approach to the presidency. Telling Democrats in Congress to pound sand has been Trump policy almost from the day he took office.
Trump’s declaration also was not new, but an extension of his dictatorial approach to the presidency. Telling Democrats in Congress to pound sand has been Trump policy almost from the day he took office.
Consider the lead of this June 2017 Politico piece and note that the sourcing is exclusively from Republicans:
“The White House is telling federal agencies to blow off Democratic lawmakers’ oversight requests, as Republicans fear the information could be weaponized against President Donald Trump. At meetings with top officials for various government departments this spring, Uttam Dhillon, a White House lawyer, told agencies not to cooperate with such requests from Democrats, according to Republican sources inside and outside the administration.”
Trump imagines that with two appointees on the nine-member Supreme Court he has a shield from Congress.
“If the partisan Dems ever tried to Impeach, I would first head to the U.S. Supreme Court,” Trump tweeted on Thursday, April 24.
This tweet, part a barrage that shows how panicked Trump has become, is noteworthy for two reasons beyond proving his ignorance of our Constitution.
First, Mueller is a lifelong Republican.
Second, in declaring himself innocent, Trump used the language of skels and mobsters in falsely tweeting that Mueller “didn’t lay a glove on me.” As the third-generation head of a white-collar crime family that has partnered with Mafiosi, Russian mobsters and other criminals throughout his life, Trump’s language is revealing of how he never left that milieu.
Had Trump ever read our Constitution he would know that under Article I, Section 3, Clause 6 our Supreme Court has only a single and very limited role in impeachment proceedings. In a Senate trial, the presiding officer will be the chief justice of the United States, currently John Glover Roberts Jr.
That’s it. Our Supreme Court has no other authority in any impeachment proceeding. I doubt it would even accept a petition from Trump. If it does, I expect that it would dismiss the petition out of hand.
Our Supreme Court has been quite clear going back to the earliest days of our republic that Congress has very broad powers to investigate and conduct oversight of the executive branch, which is charged with doing what Congress instructs.
Until 62 years ago the investigative power of Congress was thought to be unlimited. But in an important 1957 case known as Watkins during Congressional witch hunts for communists in the U.S. Army, Hollywood, unions and elsewhere the court imposed one limit, which has no benefit for Trump.
“The power of the Congress to conduct investigations is inherent in the legislative process,” the Supreme Court held in Watkins.
“That power is broad. It encompasses inquiries concerning the administration of existing laws, as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the federal government to expose corruption, inefficiency or waste.”
The Watkins case involved a United Auto Workers organizer who had been a Communist Party member. Some details of the case are important to understand why Trump’s reliance on it to save him from investigations by Congress is, well, poppycock.
The government acknowledged that in testifying before the Senate a “more complete and candid statement of… past political associations and activities can hardly be imagined.”
Watkins declined only to name names of people who had quit the party. Watkins argued that such questions served no legitimate purpose.
Seven Supreme Court justices agreed.
“No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress,” the majority held. “Investigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.”
That cannot help Trump because he has given Congress ample reasons to review his tax returns, his businesses and what I call the “eyes wide open blind trust” that owns them. The Mueller report described as at least 10 specific attempts to obstruct justice.
Defying the Supreme Court
Trump’s blanket declaration of no cooperation with Congressional investigations, at least by the House, also defies the Supreme Court holding in Watkins.
“It is unquestionably the duty of all citizens to cooperate with the Congress in its efforts to obtain the facts needed for intelligent legislative action,” the Watkins court held.
“It is their unremitting obligation to respond to subpoenas, to respect the dignity of the Congress and its committees, and to testify fully with respect to matters within the province of proper investigation. This, of course, assumes that the constitutional rights of witnesses will be respected by the Congress as they are in a court of justice.”
One of the few presidents who were intellectuals, Woodrow Wilson, would also not support Trump. If only we could bring our 28th president back from the grave. We must rely on what he wrote in 1885 while earning his political science doctorate at Johns Hopkins University.
“Quite as important as legislation is vigilant oversight of administration,” Wilson declared.
“It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents,” Wilson wrote in Congressional Government: A Study in American Politics, available free online.
“The informing function of Congress should be preferred even to its legislative function,” Wilson added, words that Trump would find troubling if he had the intellectual capacity to study the history of the presidency and Congress.
The fact is that Congress has the authority to create, abolish, reorganize and fund federal departments and agencies. It has the authority to assign or reassign functions to departments and agencies and grant new forms of authority and staff to administrators. Congress, in short, exercises ultimate authority over executive branch organization and generally over policy.
Congress’ Oversight Duties
The 2014 Congressional Oversight Manual notes that “oversight of the executive is designed to fulfill a number of purposes:
- Makes sure the president complies with the intent of Congress;
- Operates the government efficiently and effectively;
- Evaluates program performance;
- Ensures the president doesn’t usurp powers held by Congress;
- Ensures the president conducts himself and his administration with integrity;
- Ensures the president is competent;
- Administers our government in the public interest rather than his own,
- And protects the people’s Constitutional liberties and rights.
There are at least 10 more oversight duties, according to the Congressional Research Service report.
There are only two ways that Trump can get away with evading his Constitutional duties.
The first is to hope that he gets lucky and his cases are heard by the one in nine federal judges whom he has appointed, a group mostly known for their ideological opposition to unions and the “general welfare” principle of our Constitution and, in some cases, hostility to equal protection under law for racial, religious, gendered and other minorities.
They should follow the principle, beloved by judicial conservatives, known as stare decisis. That’s Latin for following legal precedents unless there is clear reason to overturn past decisions.
His second hope is to win another term, in which case he will have run out the clock on federal crimes because they generally have a five-year statute of limitations. Trump has already made clear he plans to stay in office until he dies if he can get away with it.
We’ll know next November whether enough voters prefer a Trump dictatorship to liberty to make that happen.