On Wednesday, the constitutional battle between Congress and the executive branch escalated in a new and profound way, as President Donald Trump declared executive privilege over special counsel Robert Mueller’s probe and the House Judiciary Committee voted to recommend contempt charges against Attorney General William Barr for failing to comply with a congressional subpoena seeking complete materials from that investigation. The apparent goal of the president and Barr’s moves—aside from avoiding short-term accountability—is a long-term game to put this president and the presidency itself largely beyond the reach of congressional checks. Congress must now assert itself as a coequal branch of our federal government. One not yet examined but crucial way for the House of Representatives to do that would be to hold hearings with independent constitutional scholars—who, across the ideological spectrum, have spoken out against the president’s power grab—explaining why Congress’ checks are essential to our system and how Barr’s extreme, inadvisable, and extraconstitutional vision of executive authority—known as unitary executive theory—could be devastating to it.
However the situation might advance through impeachment proceedings and in the courts, the House should educate itself and the public about the theory of executive power Trump and Barr are pushing and thereby elevate the issue of executive accountability to the legislature. Either through standing committees now stymied by the Trump administration’s assertions of executive privilege or by a select committee appointed by the speaker to investigate and consider the reach of congressional subpoenas, the House should hold hearings on the very question the Trump administration is treating as settled. Just what, if any, right does a president have to withhold evidence, witnesses, and information from congressional committees pursuing legitimate legislative, oversight, and constitutional concerns? Specifically, Congress should hear from experts on law, history, political science, and political theory to air, examine, and assess the merits of the unitary executive theory, Congress’ historic subpoena power, and executive privilege. Hearings on these subjects would make plain the executive branch overreach sought by the Trump administration’s conception of presidential power. Alternatively, it would force proponents of unitary executive authority as construed by the Trump administration to clearly defend a view of the U.S. Constitution that allows the executive branch virtually unfettered scope without any obligation to comply with congressional oversight and fact-finding. Via such hearings, Congress can clarify to voters how the current president conceives of his relation to the Constitution, how Congress itself views the executive-legislative branch relationship embodied in the Constitution, and why the American people should reject the drastic realignment pushed by those insisting on asserting executive privilege as grounds to resist congressional subpoenas.
While any conclusions reached by House committees would not bind judicial decision-makers, Congress is entitled to explicitly shape and promulgate an understanding of its own authority that aligns with that of mainstream constitutional scholars. Doing so would not only alert the American public to the precise stakes of the current fight between Congress and the executive branch, but it would also create a record that the courts, including the Supreme Court, would have to take seriously were the judiciary ultimately required to decide a case raising the issue of executive accountability to congressional subpoenas in the face of sweeping executive privilege claims.
The practice of congressional investigation and exacting of witness testimony dates back to at least 1792. Congress’ power to subpoena witnesses and documents has been fully articulated and entrenched in U.S. constitutional law since 1927, when the Supreme Court decided McGrain v. Daugherty, a case that itself pitted the U.S. attorney general against a Senate committee investigating him for misconduct. The decision in McGrain firmly established the principle that inherent in the Constitution’s grant of legislative powers to Congress is the power to investigate and obtain information necessary to legislate, including by means of subpoena. Subsequent decisions strengthened and enhanced this proposition.
Existing Supreme Court precedent on executive privilege, meanwhile, is sparse and arises from factual and legal circumstances entirely different from those posed by a congressional inquiry into presidential misconduct. The main cases date from the Nixon era. In one, U.S. v. Nixon, the Supreme Court squarely acknowledged a presidential interest in confidentiality in communications between executive branch officials. But the court actually held that, in the circumstances, the president’s interest in confidential communications with executive aides was outweighed by the needs of justice in criminal adjudication. Nixon had to hand over the tapes that eventually brought down his presidency. In the other, Nixon v. Fitzgerald, the Supreme Court sidestepped the assertion of presidential executive privilege by concluding that the president is “absolutely immune” from private damages actions arising from his official acts.
Federal courts have not settled the issue of executive privilege in the very different setting of congressional committee hearings, which are neither criminal court proceedings nor civil court adjudications. The White House is asserting executive privilege in its resistance to congressional oversight not because such privilege is established law, but because Trump is surrounded by people who want it to become law. Figures ranging from former Vice President Dick Cheney and former Attorney General Ed Meese to Barr himself have championed the so-called unitary executive authority view, a controversial theory that contends the executive branch is virtually untouchable by Congress, unless Congress deploys impeachment. Even then, according to unitary executive authority theory, Congress cannot necessarily subpoena evidence from the executive branch. Such sweeping executive privilege threatens the Constitution’s entire approach to tripartite federal government. By creating three coequal branches of government, each with the ability to check and balance the other, the Constitution presupposes cooperation and reciprocity among the branches, not a complete siloing of powers among them. By giving each of the three branches different roles but overlapping responsibilities, the Constitution ensures that no branch can neglect its duties nor abuse its power. The unitary executive authority view would wreak havoc on this arrangement, simultaneously inflating the executive’s control over government and deflating Congress’ control as well. Ultimately, unitary executive theory would force Congress to resort to impeachment whenever the president asserts executive privilege so as to interfere with Congress’ investigative powers. Not only does this give rise to a needlessly adversarial posture between Congress and the president—the high political and practical costs of impeachment chill its regular use. This opens the door to excessively authoritarian and unrepresentative governance.
Ultimately, one likely agenda behind the Trump administration’s sweeping assertion of executive privilege is to force House Democrats to either risk the Supreme Court adopting an extreme version of executive branch power or to concede that impeachment is the only meaningful congressional check on myriad executive branch activities. This is a false dilemma, one that Congress should expose and reject. Hearings elucidating the true danger of Trump and Barr’s extreme views would be a meaningful and constructive step.
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