A Crack in Trump's Stonewalling
The dike is sprouting more leaks than the president has fingers with which to plug the expanding trickles.
About the author: David Frum is a staff writer at The Atlantic.
To date, the cover-up has worked about as well as President Donald Trump could have hoped.
Almost four years after Trump declared his campaign for the presidency, and more than 30 months since he won that office, he has successfully kept secret almost all the things he wished to keep secret. How much debt does he owe, and to whom? How much of his income derives from people who do business with the U.S. government? How much of his income derives from foreign sources? Who are his business partners, and do any of them present ethical or national-security concerns?
These basics of post-Watergate official disclosure have all been suppressed.
Incredibly, even after the delivery of Special Counsel Robert Mueller’s report, the American people still have only the haziest idea of Trump’s business connections to Russia and Russians. Do those connections cast any light on why the Russian government was so eager to have him elected president in 2016? Perhaps that information is held somewhere within the Department of Justice or the FBI, but citizens and taxpayers can only guess.
If Trump has his way, the secrecy will continue for a lot longer. In the past few days, he’s filed suit to prevent his bankers from complying with a congressional subpoena. His secretary of the Treasury has defied a never-before-questioned law and refused to surrender the president’s tax returns to the House Ways and Means Committee. His attorney general mischaracterized the Mueller report, as Mueller complained in writing, and now has operational control over the ongoing criminal prosecutions bequeathed to the Justice Department by Mueller.
Trump’s trouble is that the dike is sprouting more leaks than he has fingers with which to plug the expanding trickles. Two federal judges, one in Maryland and one in the District of Columbia, have approved lawsuits based on the U.S. Constitution’s emoluments clause demanding information about Trump’s revenues from foreign-government entities. Those lawsuits—one filed by congressional Democrats, the other by attorneys general for the state of Maryland and the District of Columbia—now proceed to two different appellate courts, the Fourth Circuit and the D.C. Circuit. At this rate, an emoluments case could reach the Supreme Court before the 2020 election.
The dispute over the president’s tax returns has not yet triggered a judicial process. Treasury Secretary Steve Mnuchin must first decide whether he will risk a contempt-of-Congress citation and shoulder personal legal risk. If the tax-return demand ends up in court, we’ll witness the unusual spectacle of a Republican administration inviting judges to reverse decades of conservative legal theory and to defy the clear letter of the law in favor of nebulous concepts of privacy. For half a century, conservative lawyers have mocked the 1965 birth-control case in which Justice William O. Douglas created a new constitutional right to privacy out of the “penumbras” formed by “emanations” of the Bill of Rights. Perhaps Douglas, like Julian Assange before him, will now transition from conservative villain to Trumpist hero.
The law very much favors Congress in the subpoena of Trump’s bankers. Congressional subpoena power extends to any subject on which Congress can constitutionally legislate, among other realms, as the Supreme Court has affirmed again and again. It’s not necessary that Congress actually have any legislation in mind, so long as it potentially could. The Supreme Court explained in 1975: “The wisdom of congressional approach or methodology is not open to judicial veto … Nor is the legitimacy of a congressional inquiry to be defined by what it produces. The very nature of the investigative function—like any research—is that it takes the searchers up some ‘blind alleys’ and into nonproductive enterprises. To be a valid legislative inquiry there need be no predictable end result.”
Meanwhile, Attorney General William Barr has just advanced a likely doomed new legal theory that a president is entitled to shut down any investigation that he feels is unfair to him: “The president does not have to sit there constitutionally and allow [a special-counsel investigation] to run its course. The president could terminate the proceeding and it would not be a corrupt intent, because he was being falsely accused.” It’s an argument for total impunity based purely on political power—and for that reason will gain no favor from either Congress or courts.
Perhaps the Trump administration hopes that it can run out the clock on the bank subpoenas and the other matters, too. But so many clocks are ticking over so many inquiries into so many areas of potential scandal. Can they all be postponed and postponed past 2020? For a president with many guilty secrets, everything turns on the ability to insert delay after delay before ultimate legal defeat. It’s not a great plan. It’s liable to go wrong, maybe catastrophically wrong. At this point, though, it’s all he’s got.