Republicans ready to go to bat for President Trump in his ongoing battle to deny the requests of House Democrats risk limiting the ability of Republicans in Congress to hold future Democratic presidents accountable.
To be sure, it is not in the interest of Americans to allow the Congress to cripple any presidency by endless demands for documents and official testimony to investigate any claims that can be ginned up for political reasons. But at the same time, it is counter to the public interest to allow the executive branch to blanketly deny Congressional investigators access to relevant information, and thus escape accountability. There are a lot of gray areas between these extremes, and every administration, in one way or another, tests the boundaries. Our system, in an awkward way, has tried to establish some sort of balance.
As those in the opposition soon discover, the reality is that congressional oversight power is limited. A congressional subpoena, or a contempt finding such as the one Democrats are voting for today with regards to Attorney General William Barr, is not as powerful as a criminal one issued by a court of law, nor does it have the same implications. If the executive branch digs in, Congress runs out of tools in its box. It can take the administration to court, as Democrats plan to do with Trump’s tax returns, but then court proceedings can delay the release of information for years, well after they lose political relevance.
During the Obama administration, Republican investigators were frustrated by then-Attorney General Eric Holder’s refusal to hand over documents related to the botched Fast and Furious operation, in which thousands of guns were allowed to “walk” into Mexico, where they ended up in the hands of drug cartels and were linked to the death of a U.S. border patrol agent. Holder, who lied in congressional testimony, also hid behind executive privilege in releasing documents, and was held in contempt. But his Department of Justice still dragged its feet in turning over documents, even after court orders. It wasn’t until 2018, six years after the Congressional contempt finding, that the Jeff Sessions-led Justice Department announced it was handing over all of the documents. There are also plenty of examples of Bill Clinton and his Justice Department trying to stymie investigations, for instance, the one into potential campaign finance violations in his 1996 reelection campaign.
This isn’t to focus on one side. There are examples from the Reagan and Bush administrations, and of course, the Nixon administration of Republican presidents trying to thwart congressional investigations.
The reason I raise this is that the history of previous Democratic administrations fighting congressional document requests is that they have made Republicans feel more justified in defending him in disputes with the Democratic House.
Republicans should be aware, however, that any principles that Trump establishes in rebuffing congressional investigators could be used (or further built upon) by future Democratic presidents seeking to avoid scrutiny from Republicans in Congress. Republicans should not see defending Trump on every matter as necessary, even if they believe that the Robert Mueller report vindicated him on the Russia issue.
There are two aspects of Trump’s defiance that I find particularly worrisome.
One is the specific issue of Trump’s tax returns. I’ve called on him to release his tax returns ever since the 2016 campaign, and still believe he ought to in the name of transparency, and this is true even if he can convince a court that he is not obligated to hand them over to Congress.
The public should be able to have an understanding of where the president’s income is coming from and what his taxes look like. That Trump entered the presidential race in a unique position as a man with a global business empire and that he has complicated taxes should not be an excuse not to release them. It’s actually a stronger argument in favor of making them public.
Americans should be able to get a firm idea of Trump’s business dealings, of potential conflicts of interest, and of potential avenues through which foreign governments can try to gain influence by way of businesses. This is important independently of the motivations that Democrats have in trying to use them to embarrass him politically.
For over three years, Trump has argued that he cannot release his tax returns while he’s under audit. In reality, even if we take him at his word that he has been under perpetual audit, nothing would prevent him from releasing tax returns while under audit, nor should it have any bearing on whether he releases taxes from years unaffected by the claimed audit.
There is no law requiring presidents to hand over their tax returns, though that has been the modern practice. Barack Obama released his tax returns, yet many conservatives were fixated by his refusal to release his college records. Trump got in on the action just ahead of the 2012 election, offering Obama $5 million to a charity of his choice, stating, “President Obama is the least transparent president in the history of this country.” Whatever biographical details some conservatives thought Obama’s college records would reveal, they are clearly less relevant to his presidency than Trump’s sources of income.
If Trump is able to rebuff congressional investigators by successfully arguing in court that their demand for his tax returns does not serve a legislative purpose, it will create a disincentive for future presidents — including Democratic ones — to release their tax returns if they contain any information that could potentially be politically damaging.
Another aspect of Trump’s posture that’s worrisome is his blanket statement, “We’re fighting all the subpoenas.”
As noted above, there are plenty of examples of presidents invoking executive privilege to block congressional requests for documents or official testimony. But there is a difference between invoking privilege in each individual case, for specific reasons, and declaring an intention up front to be broadly uncooperative because members of the popularly elected opposition party “aren’t impartial people.”
Again, if Trump is able to set a standard under which presidents can broadly declare their intention not to cooperate with congressional investigations, this standard will inevitably come back to haunt Republicans.
The standoff between Trump and Democrats should be viewed independently of current political considerations and seen as part of a much larger battle over the powers of congressional oversight and the executive branch. Republicans need to consider what they believe the proper balance should be if a Democrat were in power, and act accordingly.
