Tuesday looked like many other days in the presidency of Donald J. Trump. He tweeted insults at Democrats, he stonewalled Congress, and critics were outraged. But if you look closer at Trump’s tweets and a subsequent letter from the White House to Congress, you’ll see why Tuesday will go down as the day Trump finally…
Tuesday looked like many other days in the presidency of Donald J. Trump. He tweeted insults at Democrats, he stonewalled Congress, and critics were outraged. But if you look closer at Trump’s tweets and a subsequent letter from the White House to Congress, you’ll see why Tuesday will go down as the day Trump finally provoked an actual constitutional crisis.
For the first time, Trump claimed he can ignore Congressional subpoenas without offering any legal justification at all. He no longer even pretends to play by the rules.
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That matters. While the Trump administration has repeatedly taken unprecedented legal positions to delay and stonewall Congress, it previously recognized, however tacitly, the legitimacy of impeachment as a constitutional remedy. Even when it prevented witnesses like former White House lawyer Don McGahn from testifying, it provided a fig leaf of justification—executive privilege or attorney-client privilege, for example—thereby implicitly acknowledging the oversight prerogatives of Congress and its power to issue subpoenas.
That changed on Tuesday.
Trump announced on Twitter that he directed Ambassador Gordon Sondland not to appear before the House Intelligence Committee to testify pursuant to the impeachment inquiry. His only justification was that it was a “kangaroo court” that did not allow the “true facts” to be revealed to the public. That does not even pretend to be a legal justification for blocking the testimony of an important witness who reportedly called Trump before he sent texts to another State Department official, denying Trump had sought a quid pro quo deal with Ukraine.
The administration followed up with a letter to Speaker Nancy Pelosi signed by White House Counsel Pat Cipollone, which blasted the impeachment inquiry as “illegitimate” and an “unconstitutional” effort to “overturn the democratic process.” The letter declares that the administration “cannot participate” in the impeachment inquiry as a result. Calling the constitutional process of impeachment “unconstitutional” is a brazen attempt to persuade the public that reality is not what it actually is—that up is down and black is white. Call it the “alternative facts” school of legal reasoning.
While the letter is signed by a lawyer and occasionally uses legal terms like “due process,” it is a political document, not a legal one. The complaints that the administration has with the impeachment inquiry are not legal reasons that would excuse a failure to comply with the inquiry. Trump is not going to court. He is not claiming privilege. He has simply declared that the usual rules don’t apply to him.
That is very different than taking advantage of legal procedure to delay by claiming privilege or filing cases in court. Using legal means to cause delay can frustrate the process, but it is not a rejection of the process. In fact, it is often key to a zealous defense that is essential to our adversarial legal system. Whenever you file your tax return, you concede that you have a legal obligation to pay taxes. Asking for an extension or claiming an unwarranted deduction is very different from refusing to file a return altogether because you believe that the U.S. government is illegitimate. “Tax protesters” who do so are routinely prosecuted and sent to prison.
By declaring impeachment to be “illegitimate,” Trump seeks to delegitimize the only mechanism by which he can be punished for wrongful behavior while in office. Of all the unprecedented things Trump has done, this has the potential to be the most damaging.
The Justice Department has long taken the position that a sitting president cannot be indicted. The reasoning behind the Justice Department’s policy is that impeachment is the constitutional remedy for presidential wrongdoing and that impeachment is a political process, not a legal one. In a recent lawsuit he filed to block the Manhattan district attorney from examining his taxes, he pushed this theory to the breaking point. Trump asserted that not only is he safe from indictment, he cannot even be investigated while in office.
The assumption underlying all of those arguments is that impeachment is the remedy for presidential wrongdoing. Trump’s move on Tuesday aims to take that singular remedy off the table. [MR1] If he succeeds—if impeachment is delegitimized and ignored—then Trump, and future presidents, will be truly above the law.
Both parties have publicly opposed this unconstitutional expansion of presidential power in the past. Not so long ago, when Republicans were arguing for the impeachment of Bill Clinton, they cited Richard Nixon’s defiance of Congressional oversight as a significant justification for his impeachment. Lindsey Graham, then a Congressman from South Carolina made a cogent case for why that article of impeachment was necessary against Nixon and why it was warranted for Clinton. But unless 20 Senate Republicans vote to remove Trump, he will remain in office and his non-compliance with Congress will be unpunished.
Going to the courts could eventually result in a court decision that would declare that Trump was obligated to comply with subpoenas from the impeachment inquiry, but that legal battle could take many months to play out. After all, House Democrats are still waiting for evidence from the Mueller investigation which was completed in March.
It’s hard to believe Democrats will wait that long to impeach Trump, given that the Iowa caucuses and New Hampshire primary are right around the corner. They will likely press forward with the considerable evidence they already have, which means that by the time the legal process plays out, lawsuits to enforce subpoenas from this impeachment inquiry would likely be moot. That’s why Trump is doing what he’s doing.
The term “constitutional crisis” has been thrown around often during the Trump presidency, usually in relation to problematic actions by Trump that don’t quite fit the definition of that term. But we have reached a constitutional crisis when the president of the United States does not recognize the House’s authority to exercise the “sole Power of Impeachment” granted to it by the Constitution, ignoring its subpoenas because he knows he won’t face any consequence for doing so. That precedent is dangerous. One can easily imagine a situation in which a future president’s refusal to provide evidence to Congress actually prevents a legitimate impeachment inquiry from proceeding. What would have happened if Trump had stonewalled from the beginning and didn’t release the summary of the phone call or whistleblower complaint?
If Trump successfully evades removal from office and successfully convinces Republicans that he can ignore impeachment by delegitimizing the process, one wonders what other constitutional provisions he will decide to ignore next. A Trump second term, unconstrained by Congressional appropriations or oversight, could alter the scope of presidential power forever.