What to Do If Congress Can’t Get More Information

The rule of law is being shattered, but Congress does have what it needs.

House Intelligence Committee Chairman Adam Schiff speaks to reporters at the Capitol.
House Intelligence Committee Chairman Adam Schiff speaks to reporters at the Capitol. (J. Scott Applewhite / AP)

About the author: Garrett Epps is a contributing writer at The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

Since the Democrats gained control of the House, the Trump administration has taken the most extreme position on congressional oversight in American history: In essence, it has argued that no demand from Congress, for information about anything, to anyone in the executive branch, is binding on the president. While many presidents have struggled with the reach of congressional oversight, this administration has been particularly defiant.

In only slightly coded language, it justifies its position on the grounds that the House is now controlled by the Democratic Party and thus illegitimate. For example, former New York Mayor Rudy Giuliani suggested that his compliance with a congressional subpoena was at most optional because the committees seeking it are chaired by Democrats. On Sunday, during an appearance on George Stephanopoulos’s This Week, Giuliani said, “I wouldn’t cooperate with [Intelligence Committee Chair] Adam Schiff. I think Adam Schiff should be removed.” On Monday he tweeted, “I have received a subpoena signed only by Democrat Chairs who have prejudged this case. It raises significant issues concerning legitimacy and constitutional and legal issues including, inter alia, attorney client and other privileges.”

Donald Trump himself has said, “Nancy Pelosi, as far as I’m concerned, unfortunately, she’s no longer the Speaker of the House.” He has accused Schiff of treason because Schiff criticized him; on Tuesday night, he called the impeachment inquiry “a COUP.”

This rhetoric harks back to the Alien and Sedition Acts crisis of 1798, when the ruling Federalist Party outlawed criticism of the president or Congress, and jailed opposition figures (including members of the House itself) for the “crime” of opposing the administration. The idea was that any opposition to the government is a betrayal of the state—that there is no such thing as a “loyal opposition.”

As I wrote on Tuesday, the beginning of a formal impeachment inquiry should strengthen Congress’s hand as it seeks court enforcement of its demands for information. But should Congress even pursue such requests? Laurence Tribe, a professor at Harvard Law School, (whose recent book, To End a Presidency, co-written with Joshua Matz, explores many political and legal aspects of impeachment) told me in an email:

The expectation that the evidence thereby made available will be explosive makes the impeachment process more difficult in circumstances like this, where the publicly known facts already justify a conclusion that the president committed high crimes and misdemeanors. That creates something of a paradox. The way in which a formal impeachment inquiry makes potentially incriminating evidence much more readily available tends to raise expectations and indirectly raises the bar for what it takes to impeach a president who abuses his powers for personal gain.

In other words, what the public already knows is sufficient grounds for impeachment, and trying for more might backfire. If doing so creates an expectation—similar to Mueller fever before the special counsel’s report was issued in April—compliance could produce an anticlimactic result that would lead to impeachment fatigue and claims by Trump that he has been “totally exonerated.” In addition, many of the requests pending in court now have nothing to do with Ukraine—and while they are impeachment-related, that blurring of the focus may be a problem.

The Ukraine narrative is simple and clean: The executive branch’s own account of the phone call shows him attempting to enlist foreign interference in an election. That is a high crime and misdemeanor. And perhaps less is more: To adopt other articles of impeachment might simply confuse the issue. Congress already has enough to go forward. In this analysis, the remedy for administration stonewalling is a new article of impeachment—like the one adopted by the House Judiciary Committee in 1974 after Richard Nixon rejected its request for the key White House tapes.

What is happening in Washington now is the political version of war to the knife. The immortal Omar Little, paraphrasing Ralph Waldo Emerson, once said, “You come at the king, you best not miss.” I freely admit that strategy is above my pay grade. I am an academic lawyer, and perhaps not, in the words of Michael Corleone, “a wartime consigliere.”

But it sticks in my constitutional craw to leave the administration’s claims hanging out there unaddressed. I have been profoundly shocked by the attitude of Secretary of State Mike Pompeo, Treasury Secretary Steven Mnuchin, former White House Counsel Don McGahn, Attorney General William Barr, and current White House Counsel Pat Cipollone. Their new version of “executive privilege”—the boss don’t give you squat, G-Man—is a recipe for quasi-dictatorship. To me, it is in and of itself both a crime and a basis for impeachment.

What would happen if the “privilege” issue reaches this Supreme Court? Of the five members of the conservative bloc, every one spent his pre-judicial career as a courtier to a conservative president. They revere the presidency and are deeply influenced by the illusory idea that the “unitary executive” can set aside legal or constitutional obstacles if, in his sole judgment, the public good requires it. They might very well rule that Trump can keep all his secrets.

Then again, if it is to be the law informally, perhaps it should be the law formally. If the Court does rule and allows Trump these privileges, at least the rules of the game would be clear—in all their dangerous, shortsighted glory.