It is probably safe to say that this is not how we imagined America’s little fling with representative democracy would end. But on Wednesday morning, New York Rep. Jerrold Nadler described the battle unfolding between the Trump White House and Congress thusly: “The ongoing clash between congressional Democrats and President Trump over the Mueller report has turned into a full-blown constitutional crisis.” On Thursday morning, House Speaker Nancy Pelosi used the same turn of phrase, warning that the nation is now in a “constitutional crisis.”
In the totality of Trump scandals, this week’s is rather boring and technical. The problem at hand: The House Judiciary Committee seeks to interview William Barr, the attorney general of the United States, on the subject of the Mueller report. When he refused to show up, they voted to hold him in contempt of Congress for doing so. Meanwhile, the president has opted to assert seemingly boundless executive privilege in an attempt to shield the unredacted Mueller report from congressional scrutiny. The question at hand is basically: What happens in this standoff between Congress and the president? The stalemate, and immovable positioning, is certainly making it feel as though we are hurtling at high speeds toward a new precipice.
As Adam Liptak concluded in the New York Times Tuesday, we are clearly facing an impending threat to our established constitutional order. (As a refresher, that order, as laid out in the Constitution, is that Congress is tasked with overseeing the executive branch, but the executive branch can keep designated things secret.) Even John Yoo, architect of the infamous Bush-era torture memos, seemed to agree that the constitutional impasse we’ve reached is without precedent. As former federal prosecutor Mimi Rocah explains, the White House’s sweeping refusal to cooperate with Congress on any investigation has the makings of a constitutional crisis, because “the head of the Justice Department” is now helping block congressional investigations into the president “regardless of law or merit.”
Are we currently in the midst of a genuine constitutional crisis? Would we even know one if it bonked us on the heads? The last time people started throwing the C-words around, it was January of 2017, when the newly inaugurated Trump had just signed an executive order closing America’s borders to travelers and refugees from seven majority-Muslim countries. The courts had ordered him to reverse it, but for a few days it seemed as if agents from Customs and Border Protection were going to simply ignore that and enforce the travel ban as written. Here at Slate, we tried to figure out whether this disrupted chain of command meant a constitutional crisis was about to happen, or already happening, or light years away. We canvassed constitutional scholars for their opinions, and most had concluded that we weren’t there yet. (CBP complied with court orders, and eventually a twice-revised travel ban prevailed at the Supreme Court.)
But Pelosi and Nadler’s “constitutional crisis” language has raised the possibility, once again, that America has unwittingly crossed into a red zone; that an immovable conflict between two coequal branches is about to take place or is perhaps already taking place. So, we went back to some of our most eminent constitutional experts to ask them whether we’d slid over a line this week. The results were very mixed, which perhaps perfectly encapsulates the problem. In reflecting on how this is possible, it’s useful to keep in mind the words of Orin Kerr, who teaches law at the USC Gould School of Law and was quick to warn that the phrase “constitutional crisis” means different things to different people: “There is no accepted definition, unfortunately, so the phrase gets tossed around by a lot of people without it meaning very much.”
No Constitutional Crisis:
• Jed Shugerman, Fordham Law professor and Slate contributor, notes that there is a formal definition and we aren’t there yet: “This current episode is not a constitutional crisis because the Constitution is still functioning as designed, in terms of separation of powers. The key question to me is whether either party bypasses the courts or defies the courts. The House subpoenas documents, the executive branch makes legal arguments against those subpoenas, and the courts will hear this dispute. These are checks and balances by design. A constitutional crisis would be the House trying to arrest [Treasury Secretary Steve] Mnuchin or Barr without a court order—the hypocritical ‘lock him up.’ And a constitutional crisis would be Trump or his administration ignoring a court order to turn over documents.” Right now, Trump and his administration are just ignoring a congressional order, not a court order.
• Walter Dellinger, former acting solicitor general in the Clinton administration, agrees: “We are not in a constitutional crisis. We will be when a final court order is defied.” He adds that the administration isn’t helping its case: “The White House is seriously weakening its position in court by claiming executive privilege against all document and testimony requests. Such an extravagant claim gives the lie to the argument that it has a particularized need for confidentiality. The House should be careful not to give up the high ground by making demands that are more sweeping than are strongly defensible.”
• Carolyn Shapiro, former Illinois solicitor general and faculty member at the Chicago-Kent College of Law, agrees that the formal definition of “constitutional crisis” may not be upon us—but that we’re on the brink of something even more complicated: “Sadly, I think we have several interrelated constitutional and democratic crises. First, we have aggressive partisan gerrymandering, voter suppression, and lame duck lawmaking designed to remove power from incoming officials (as in Wisconsin and North Carolina after recent GOP losses in statewide elections), all of which undermine representative democracy. Second, we know that a foreign adversary has tried and intends to try again to disrupt our elections, but Republican leaders appear unconcerned at best. And third, we have President Trump’s myriad misdeeds, which—at a minimum—demand a thorough and public investigation if not impeachment. I see these all as related because they all involve contempt for representative democracy, an unwillingness to tolerate the possibility of losing or sharing power with one’s political rivals, and an utter disdain for the Constitution.”
• Rhode Island Sen. Sheldon Whitehouse also suggests that we haven’t yet arrived at the official red line: “The breaking point is either when a right wing–captured Trump appointee on the federal bench fails to uphold Congress’ oversight authority, or when a federal judge does uphold that authority and the Trump administration simply ignores it.” He adds that this is, however, a failure of basic checks and balances: “Whatever the case, the two political branches shouldn’t be anywhere near such a crisis. Republicans in Congress ought to defend the rights and duties of their branch—just as they claimed to do under previous administrations.”
Yes, Constitutional Crisis:
• Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, was emphatic: “Yes. We are. My line in the sand was Barr’s confirmation without a commitment to recuse, given the letter he wrote last summer. It turned out exactly as it would obviously turn out once he was confirmed. But seriously, the invocation of executive privilege to bar a congressional committee from investigation or oversight is fully over the line.”
• Neal Katyal, who served as acting solicitor general in the Obama administration, feels the same way: “We were in a constitutional crisis from the moment of the election, having a leader who has contempt for his constitutional duty to take care that the law be faithfully executed. Everything—from the Muslim ban to the defiance of Congress’ oversight responsibilities—stems from that initial attitude. And that’s just the stuff that we know about. The presidency for all sorts of legitimate reasons acts with secrecy and dispatch, so while we are now learning about more and more instances of wrongdoing, it’s a mistake to think a lot of constitutional transgressions are only now taking place all of a sudden. Past presidents have had an attitude of constitutional compliance, not this one.”
• Professor Dawn Johnsen, of the Maurer School of Law at Indiana University, makes the same point: “The Mueller report and reaction to it confirm that we are deep into a constitutional crisis, deeper than we collectively seem to appreciate. Unlike the proverbial frog who boils to death rather than leap from a gradually warming pot of water, we had strong reason to jump from the start. Impeachment proceedings would be a constitutionally appropriate response, but whether they would advance the vital goal of addressing the crisis and ending the Trump presidency in 2020 is unclear.”
“Constitutional Crisis” Is the Wrong Question:
• Caroline Fredrickson, president of the American Constitution Society for Law and Policy, says we’re asking the wrong question altogether: “It’s been an ongoing crisis. What’s hard to evaluate is when the temperature is so high that we actually begin to boil—a constitutional crisis isn’t necessarily something that happens at one point in time. Now we have a situation where a series of injuries to the health of our democracy and rule of law exert cumulative harm. If we wait for some ‘red line’ it will be too late.”
• Ian Bassin, executive director of Protect Democracy and former associate White House counsel from 2009–11, makes the same point about using the wrong measuring stick: “Expecting there to be a specific moment that marks a clear ‘constitutional crisis’ is the wrong way to look at the situation we face as a nation. These modern autocrats like Trump don’t roll the tanks into the town square at a dramatic climax. Instead, they chip away slowly at the constitutional order, never providing their uncomfortable accomplices or committed opponents a definitive moment to act, but freezing them in a constant state of paralysis, all the while normalizing abnormal and dangerous behavior. Sure, the president defying a court order or rejecting election results would be thunderclap moments, but if we don’t act before we get there, it will be too late. The true crisis is that on day one, Trump placed one hand on the Bible and crossed the fingers on his other behind his back. He swore to ‘take care that the laws be faithfully executed’ but never really intended to. And so, since that day, the president of the United States has been a walking constitutional crisis.”
• Harvard Law School professor Laurence Tribe agrees that this probably isn’t the time to parse legal language: “Crisis schmisis—what’s in a word? We’re under an ongoing cyberattack from a hostile foreign power that helped install an imbecilic self-seeking con man as our leader, who committed numerous felonies to avoid being held accountable for his illegitimate election, who is encouraging ongoing attacks by that same foreign power and others, who violates his oath of office daily, and who seems secure from removal by virtue of a spineless Senate abetted by a cowardly House. Our constitutional norms are in meltdown as we watch in helpless stupor waiting for the monster to steal or cancel the next election. If this doesn’t qualify as a crisis, the word should be retired forthwith.”
Take note of how many of our experts are talking in reference to metaphorical frogs in hypothetical pots, please. What they seem to agree on is that if you’re waiting for the lawyers to tell you that it smells a lot like freshly steamed amphibian, you’re doing it wrong.
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