For the past nine months, President Donald Trump’s strategy of obfuscation and delay has successfully denied the House of Representatives the witnesses and evidence it needs to document and publicize the mounting case for maladministration and malfeasance within the Trump administration. The Democratic majority in the House has simply acquiesced to Trump’s use of protracted litigation and his unprecedented immunity and privilege claims.
There is no legal right simply to defy a congressional subpoena. However, from the outset the House has been content to rely exclusively on civil enforcement of its subpoenas and other investigative demands by the federal courts. It has made the naive assumption that they would be enforced expeditiously. But as we have seen over the past months, this process in fact has no deadline and so far remains stalled in district courts or on appeal. Indeed, the litigation could extend for months, if not years.
As a junior aide in President Richard Nixon’s White House, I saw congressional oversight and investigation command immensely greater power and respect than it does today.
In Nixon’s first term, he faced an entirely Democratic Congress. Yet the tradition of negotiation and accommodation between the Hill and the White House concerning demands for White House information prevailed. On rare occasions White House aides, including my own boss, testified before congressional committees.
After Nixon’s 49-state victory in 1972, the atmosphere changed. In the wake of that landslide, Nixon demanded and accepted resignations at the White House and throughout the administration. The president planned a thorough reorganization of the federal government.
On the Hill, Senator Mike Mansfield and his Democratic colleagues were not prepared to let the Watergate burglary and the “dirty tricks” of the 1972 campaign slide, despite Nixon’s formidable popularity. Mansfield obtained unanimous agreement to impanel a small investigative committee chaired by the respected Senator Sam Ervin.
At its inception in February 1973, the Senate Watergate Committee had only a June 1972 burglary and the well-publicized “dirty tricks” to investigate. However, soon after the committee’s creation, evidence began to emerge of a White House–orchestrated cover-up of the Watergate burglary.
As evidence implicating the White House mounted, the administration displayed no inclination toward negotiation or accommodation with the Senate Watergate Committee. On March 15, 1973, Nixon issued an edict asserting executive privilege, declaring that White House aides and papers were entirely off limits to the committee. If the committee desired to press the issue, the president said, it could pursue a contempt prosecution through the courts.
Pressed for his reaction, Ervin said Nixon’s position was “executive poppycock, akin to the divine right of kings.” Ervin declared that his committee had no intention of submitting to the suggested judicial delays, but would instead utilize the Senate’s sergeant at arms to arrest any recalcitrant White House aide, bring him to the bar of the Senate for trial, and ultimately compel him to testify.
As damaging revelations continued to mount and the stigma of cover-up gathered strength, the White House floated trial balloons, offering the Watergate Committee possible closed-door interviews with White House aides. Ervin continued to insist on public testimony, saying that “White House aides are not royalty or nobility who can be excused from testifying under oath and in public.”
By mid-April 1973, Nixon’s resistance to testimony by White House aides had collapsed, and a number of them testified. This testimony disclosed the White House taping system and confirmed the existence of tapes. Those disclosures ultimately led to Nixon’s departure from office.
This performance of the Senate Watergate Committee stands as one example of effective congressional oversight. There have been others. The one essential ingredient has been the testimony, at public hearings, compelled if necessary, of witnesses able to give a firsthand account of matters of national importance. Televised hearings have proved to be the one effective way to focus the nation’s attention on questions of crucial significance.
Once again this week, the White House demonstrated its determination not to allow any meaningful hearings about or investigations of Trump or his administration to take place. The White House counsel issued groundbreaking orders to two ex–White House aides, Rob Porter and Rick Dearborn, to defy subpoenas from the House Judiciary Committee to testify last Monday.
At present, the House is letting the White House set unprecedented limits on its oversight and letting it contest access to witnesses and documents in the courts without any time limit. Congressional oversight has never before operated in this way. As long as the House continues to allow its oversight process to be so manipulated, prospective witnesses, the media, and the public will not treat the process with the respect and dignity it deserves. The mocking performance of Corey Lewandowski on Monday may be just a curtain-raiser for what is to come.
The Supreme Court has, in several decisions, affirmed the power of Congress to enforce its own subpoenas via its sergeant at arms. Ervin’s credible threat to do just that produced a complete retreat by the Nixon White House. To command the attention of the Trump White House, the actual arrest of an appropriate witness or two might well be required.
It is clear that until the House fully implements its oversight powers, relevant witnesses will never testify in public and relevant documents will never be produced in a timely fashion. Instead of the complete story of Trump and his administration being documented for the American people, the false claim will be made that no evidence exists.
Rather than indulging in a futile and divisive debate over impeachment, the House should fulfill its constitutional responsibility, and provide effective oversight of Trump and his administration before, not after, the next presidential election.