Is It Constitutional Showdown Time?

Ken AshfordConstitution, Trump & AdministrationLeave a Comment

Will we finally get the Constitutional showdown we’ve been waiting for? It’s obvious that Trump believes neither he not any of his underlings should deign to appear before another branch of the US government. Constitutional Republic? Pshaw. It’s Unitary Executive Time, Baby! The President gets to decide all by his-damned-self what counts as a “legitimate” investigation and what is a “witch hunt”! If he gets “frustrated” he can just blow off his dogged interrogators! Obstruction? Never heard of it!

Meanwhile, the House has a decision to make. Will they issue a sternly worded letter? Or will they respond to this challenge to its Constitutional authority with the only means appropriate to the circumstance? And no, I don’t yet mean impeachment. That will likely come at the top of the escalator. I mean Inherent Contempt, a process Congress hasn’t used since 1935, but that has been upheld many times by the Supreme Court. Through Inherent Contempt, a branch of Congress (either one) can use the Sergeant at Arms to arrest and detain a person who refuses a subpoena. It will take something drastic like this to force the Administration to take the House seriously.

Now, I can already hear people saying, “What about Holder?” Indeed, let’s talk about AG Eric Holder. He was held in contempt for refusing to turn over all documents relating to Fast and Furious. He was held in Criminal Contempt in 2012 after which then Obama’s DOJ refused to prosecute him. No surprise. Same would happen with Barr. So then the House tried Civil Contempt, which ended up before a Federal Judge two years later. The Judge threatened jail time and large scale personal fines for Holder if he did not agree to turn over what she agreed were not truly privileged documents. Holder finally relented in 2014, and turned over documents that ended the standoff. But it took two years. (And not everybody was satisfied at the end).

So Inherent Contempt would be an option beyond Criminal and Civil Contempt. Since it hasn’t been used since 1935, there is no telling what kinds of roadblocks might appear. But the bigger picture is that this isn’t about William Barr at all. It’s about Donald Trump and his categorical refusal to turn any documents over to Congress or to allow any underlings to testify except in the most limited circumstances. Presidents of both parties have been expanding their authority ever since the 1970s. Bush did it with his signing statements. Obama did it with his “phone and pen” Executive Orders. By any standard, Trump is upping the ante well beyond what his predecessors did. Trump is testing the mettle of Congress right now. Will Pelosi fight back with every tool she possesses? We will find out soon enough.