President Trump’s vow to fight “all the subpoenas” from House Democrats threatens a constitutional balance struck between the executive branch and Congress for the last 90 years.
Legal experts from different political standpoints say that, by resisting congressional inquiries on flimsy grounds, Trump could prompt House Democrats to pursue impeachment in the near term and weaken the legal standing of the executive branch to resist future probes.
“This is constitutional crisis time. It truly is,” said Morton Rosenberg, a former Congressional Research Service expert on congressional oversight matters and a fellow with the Federalist Society, a conservative-learning legal organization.
[Related: Omarosa: Trump team has ‘crazy list’ of ‘shocking proposals’ to distract from subpoena fight]
Rosenberg and most other experts say that Trump’s arguments against several pending House Democratic inquiries lack merit and would be defeated in court. But most also saw Trump’s calculus as more political than legal, and one that could allow him to run out the clock before the 2020 election before a ruling can be made in court.
The gambit could backfire, though.
“I think Trump may actually be pushing people towards supporting impeachment because this across-the-board stonewalling is pissing people off,” said Josh Chafetz, a Cornell University law professor.
The argument put forth by Trump’s attorneys is that Congress lacks the authority to seek information about Trump’s finances.
“The Constitution does not grant Congress a standalone ‘investigation’ power; Congress can conduct investigations only to further some other legislative power,” Trump’s personal attorney William Consovoy wrote in a letter to the Treasury Department urging Secretary Steven Mnuchin to reject a Democratic request for Trump’s tax returns.
Trump has vowed to fight all document requests from congressional Democrats, including those related to his business.
Yet legal experts with experience in congressional oversight cast doubt on the argument put forth by Trump’s attorneys that Congress is overstepping its authority.
And the request by House Ways and Means Committee Chairman Richard Neal, D-Mass., for Trump’s tax returns was made under a specific section of the tax code that grants him, as chairman, the authority to access tax returns from the Treasury Department, which oversees the IRS.
“These returns may shed light on what contacts, if any, he has with foreign powers, including the Russians, and that’s always a legitimate concern for any Congress,” said Gene Rossi, a former federal prosecutor who spent 11 years in the Justice Department’s tax division.
[Read more: Chasing Trump’s tax returns]
Daniel Shaviro, a New York University law professor and former legislation attorney for the nonpartisan congressional Joint Committee on Taxation, said that Trump’s argument that Congress doesn’t have investigative authority is “not really our system of government” and that “it’s a ludicrous argument on many scores.”
Shaviro and others argued that Trump does not have the ability to intervene in subpoenas to third parties, such as one issued by House Oversight and Reform Committee Chairman Elijah Cummings, D-Md., to Trump’s accounting firm, Mazars USA, after former Trump attorney Michael Cohen testified in February that Trump overstated his assets to obtain bank loans, which would be a felony.
On Monday, Trump sued Cummings, arguing that Cummings “has ignored the constitutional limits on Congress’ power to investigate” and, “The Democrat Party … has declared all-out political war against President Donald J. Trump.”
Cummings, however, said he decided to subpoena Trump’s accounting firm because the information requested relates to legislative functions. Additionally, it could help determine whether Trump violated the Constitution’s Emoluments Clause, which bars presidents from receiving gifts from foreign governments.
Rossi said the courts have given Congress broad discretion to investigate and conduct oversight activities, as Democrats say they are doing in this instance. “The case law is very strong in favor of the Congress’s power to conduct oversight and to investigate,” he said.
Rossi cited as a key precedent the 1975 Supreme Court case, Eastland v. U.S. Servicemen’s Fund, which involved a subpoena issued by Sen. James Eastland, D-Miss., chairman of the Senate Subcommittee on Internal Security, for financial records of an anti-war group, the United States Servicemen’s Fund. The court rule that the Senate panel’s request fell within the “legitimate legislative sphere.”
Another precedent that could factor into any legal review of Trump’s dispute with Congress: a 1983 failed attempt by the Justice Department to throw out a criminal contempt of Congress charge against Anne Gorsuch Burford, then administrator of the Environmental Protection Agency (and, coincidentally, Supreme Court Justice Neil Gorsuch’s mother).
The legal battle over the president’s tax returns will likely intensify after May 6, the self-imposed deadline for the Treasury Department to make a “final decision” on whether to turn over the sought-after documents. The department, Mnuchin told Neal in his letter, is seeking legal advice from the Justice Department.
Neal has told Mnuchin that a failure to turn over the returns by the April 23 deadline Neal set “will be interpreted as a denial of my request.” That could lead Neal to ask for the House to hold Mnuchin in contempt of Congress.
Yet it would be hard for Neal to force the Treasury to accede to his demand through such an action. A similar maneuver by House Republicans against Obama Attorney General Eric Holder took several years to play out in court, by which time Holder was gone from office.
Regardless of the merits, any fight over congressional inquiries that ends up in court could be a lengthy one.
“I can’t see a scenario where this is decided before the [2020] election,” said Ilya Shapiro, a constitutional law scholar at the Cato Institute, a libertarian think tank. “It would be after the election so that’s a lot of game theory to game out what happens then whether he’s reelected or not.”
Still, experts cited Trump’s vow to fight every congressional inquiry as a strategic legal mistake that could also become a political one.
“If you just say ‘no’ to everything, I think that’s just going to push people more and more towards really aggressive responses, and that’s going to include impeachment,” said Chafetz. “A lot more people are going to pay attention if you call hearings impeachment hearings rather than oversight hearings.”
