Trump Stonewalling Is A Constitutional Crisis In Itself

Ken AshfordCongress, Courts/Law, Crime, Trump & AdministrationLeave a Comment

Donald Trump, the Trump Organization, and Trump’s children with wife No. 1 have combined to sue Deutsche Bank and Capital One in an effort to force them to ignore a congressional subpoena. Among other things, the suit alleges that the subpoenas constitute “harassment” and makes the odd claim that the House Intelligence Committee failed to “negotiate” with Trump over the scope of the order. The suit is just one of several legal actions that Trump has taken, including suing Congress directly in connection with records sought from Trump’s accounting firm, and ordering the IRS not to hand over his tax forms to the Oversight Committee, to keep his financial records hidden.

As the Washington Post reports, legal experts expect courts to reject the suit filed by Trump, as long-standing precedent has demonstrated the power of such subpoenas from the House to seek this type of information. However, the filing and any appeals made by Trump could delay the Intelligence Committee from receiving the records it has demanded. A Deutsche Bank spokesperson has stated that the bank intends to comply with the subpoena, and the suit indicated that the original delivery date was May 6.

Overall, the effort by Trump seems like an extreme long shot, but it also seems almost requisite, as Trump has drawn an absolute red line not just around his finances, but around providing any information at all to the House since Democrats took control of it in January. Trump’s actions may in part represent just a desire to keep voters from seeing the not-so-wealthy businessman behind the curtain, but it seems certain that what Trump is also covering up is a swatch of big-money white collar crime.

From the testimony of Michael Cohen, it seems clear that Donald Trump committed exactly the same crime, in exactly the same way, that earned Paul Manafort a conviction on felony bank fraud. Trump exaggerated his assets, understated his debts, hugely inflated his net worth, and in every way simply lied to Deutsche Bankin order to make giving him a loan seem like a reasonable bet. Bank fraud would appear to be a given.

What’s less clear is why Deutsche Bank went along with it. At the time it was handing out billions of dollars to Trump, every other major bank had already turned him down, including those that had worked with Trump on previous real estate and casino deals. This was immediately after Trump not only failed in Atlantic City, but also convinced a group of investors to bankroll a buyout of his assets there, and then intentionally bankrupted those investors so he could buy the same assets again at pennies on the dollar—and then he went bankrupt again. Trump failed, convinced people to help him get out of that failure, cheated those people, picked up everything at a discount … and still failed again. As far as banks were concerned, he might as well have been radioactive.

There are fresh affronts to democracy daily with Donald Trump in the White House. But with the news that he and members of his administration plan to flout all congressional subpoenas no matter what the subject, Trump’s disrespect for the rule of law and constitutional norms has hit a new high (or low).

This is arguably the most dangerous thing to happen to the American system of government since Trump became president. Trump, his administration and all the congressional Republicans who go along are saying the executive branch is totally beyond any congressional oversight. Why even have a Congress? Trump believes that he can do whatever he wants (no matter how illegal or harmful for the nation) and that there is nothing anyone, including Congress, can do about it.

Trump and other congressional Republicans are acting as if the midterm elections of 2018, which decisively brought a Democratic majority to the House of Representatives largely to check Trump and his actions, didn’t even happen. Last fall, a majority of Americans signaled they wanted oversight of Trump, whose average approval rating since taking office has never reached 50% and who received almost 3 million fewer votes than Democratic nominee Hillary Clinton.

But damn the facts and full speed ahead. That’s Trump’s motto. The views and wishes of a majority of Americans are being thwarted by a president who believes he has complete and unchecked power. Trump thinks he is the only person who matters. He always has. But what is truly scandalous is that congressional Republicans are enabling such blatant disregard for American democracy and the system of government created by the Founders.

Many of those attending the Constitutional Convention in Philadelphia in the summer of 1787 agonized over the possibility that the system they were creating could lead to despotism. The delegates had fierce debates over how the president would be selected and how much power the office should have. It was widely assumed that Gen. George Washington would be the nation’s first president, but they were concerned about what kind of people would follow him in office.

There is a reason Article I of the Constitution focuses on Congress and its powers to legislate and provide oversight of the presidency and executive branch, including the power of impeachment. The Founders believed a legislature elected by the people was the most important branch of government and would ensure future presidents would not be above the law.

A close look at what the Founders were thinking when they created the Constitution is especially important at this moment. In Federalist No. 48 James Madison wrote, “It will not be denied that power is of an encroaching nature, and that it ought to be effectually restrained.” Having rebelled against a nation controlled by a hereditary monarch, the Founders had a significant fear that in the future, the American government could be seized by a despotic president.

Madison and the other Founders expected Congress to protect the interests of the nation, provide oversight, and ensure that the president and executive branch were not above the law. In Federalist No. 51, Madison famously declared that the greatest safeguard against a concentration of power in any one branch of government, or by one political faction, was to create a coequal branch which could be a check on the other: “Ambition must be made to counteract ambition. … What is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. … Experience has taught mankind the necessity of auxiliary precautions.”

The Democratic House has issued subpoenas and formal requests seeking information about Trump’s tax returns, the citizenship question he wants to add to the 2020 Census, how White House security clearances are granted, and the full Mueller report. In almost every case, the White House has stonewalled, with Trump declaring Wednesday: “We’re fighting all the subpoenas. These aren’t like impartial people. The Democrats are trying to win 2020.” As if that weren’t all that was on Trump’s mind.

“To date, the White House has refused to produce a single piece of paper or a single witness in any of the Committee’s investigations this entire year,” Rep. Elijah Cummings, the Maryland Democrat who heads the Oversight and Reform Committee, said in a statement last week. He added a day later: “This is a massive, unprecedented and growing pattern of obstruction.”

The House can vote to hold in contempt officials who refuse to show up or respond to subpoenas, and this fight is almost certainly headed for the courts. Previously, federal courts have respected the congressional oversight role — but will a Supreme Court packed by Republicans overturn this precedent? Will any congressional Republican speak up? These remain open and extremely important questions. The future of our democratic system rests on them.

The Founders could not have foreseen exactly what is happening now, but they did have a powerful understanding of human nature. In Federalist No. 63, Madison wrote about the possibility that the people could be “misled by the artful misrepresentations of interested men,” a danger that would be made worse “where the whole legislative trust is lodged in the hands of one body of men.”

If the Senate failed to do its duty to protect the nation, a possibility Madison and the other Founders anticipated, “the House of Representatives, with the people on their side, will at all times be able to bring back the Constitution” to its original principles, Madison asserted.

We have reached just such a moment in American history. The House of Representatives must bring the nation back to its democratic principles.