This archive report was first published on 9 October 2019.
Constitutional Crisis: Trump's Refusal to Cooperate ¶
Published on October 9, 2019
For the first time since President Richard Nixon refused to turn over the White House tapes, the United States is facing a genuine constitutional crisis. President Trump's refusal to cooperate with the House impeachment inquiry has sparked a breakdown in the fundamental structure of government.
According to Noah Feldman, a law professor at Harvard, a constitutional crisis exists when two conditions hold: the Constitution does not provide a clear, definitive answer to a basic problem of governance, and the political actors whose conflict is creating the problem appear ready to press their competing courses of action to the limit.
With Watergate, those two conditions were met. When President Nixon refused to comply with a valid subpoena issued by a federal court, there was no clear answer in the Constitution as to which branch of government would prevail. Mr. Nixon wouldn’t budge, and neither the special prosecutor nor the court was willing to back down.
President Trump’s stonewalling of the House impeachment inquiry also satisfies the two conditions for a constitutional crisis. The Constitution doesn’t indicate what is supposed to happen if the House tries to exercise its constitutional power of oversight to investigate the president and the president flatly rejects the House’s constitutional authority.
As Mr. Trump appears to be calculating, it’s not so simple or satisfying for the House to proceed to impeachment without a factual inquiry. Impeaching a president for refusing to participate in an impeachment inquiry is a kind of meta-impeachment.
The White House counsel’s letter, however, strongly signals that Mr. Trump won’t start cooperating even if the House passes a resolution to authorize the inquiry. The letter makes a number of independent arguments for why the current impeachment inquiry is unconstitutional and illegitimate.
Assuming that Mr. Trump isn’t backing down, we’re witnessing a full-on confrontation between the House and the president, with no simple resolution available. The judiciary, and the Supreme Court in particular, may come in to resolve it.
As a matter of ordinary constitutional law, there’s little doubt that the House’s arguments before the courts would be much stronger than any offered in Mr. Cipollone’s letter. The president could always assert executive privilege with respect to particular confidential documents.
More to the point, Mr. Cipollone’s letter presents the president as the judge of whether a congressional inquiry into impeachment is constitutional. That obviously can’t be right.
Given the extreme weakness of Mr. Trump’s arguments, it’s probable that the lower federal courts would side with the House. Going to the Supreme Court, however, is always a bit of a gamble.
What will happen? A good guess is that Justice Roberts, with his back to the wall, would stand up for the clear constitutional precedent that says the courts will enforce valid congressional subpoenas.
Noah Feldman (@NoahRFeldman) is a law professor at Harvard, a columnist for Bloomberg Opinion, and the host of the podcast “Deep Background.”
