The Peoples’ Constitution: Congress Investigates and the President Pushes Back

By Ben Lenhart

These are exciting times for our Constitution, with many national news stories raising serious constitutional issues. One great example: The heated battle between President Trump and Congress over Congressional investigations and subpoenas.

Last month’s article focused on the power of the President—did President Trump have the constitutional power to declare emergency funding for the border wall? This month focuses on the power of Congress—does it have the constitutional power to investigate President Trump, and, if so, does he have the power to refuse to cooperate with those investigations?

 

Does Congress have the Authority to Investigate the President?

            The short answer is “yes” but within limits. The Supreme Court has said that Congress’s power to investigate is inherent in the legislative process. For example, in Watkins v. U.S., the Court said the investigative power “encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes.” It also includes the authority to “probe into departments of the Federal Government to expose corruption, inefficiency or waste.” But much like Congress’s power to legislate (which is broad but not unlimited), so to Congress’s power to investigate (including investigation of the President) is extensive, but not without limits. Both powers are inherent in, but constrained by, the Constitution itself.

 

The Heart of the Matter—Separation of Powers

The current fight between Congress and President raises fundamental “separation of powers” issues that go to the heart of the Constitution.

“Separation of powers” means two things.

First, each of the three branches of government—Legislative, Executive and Judicial—plays a critical and unique constitutional function in America, and no branch can take actions that prevent another branch from carrying out those core functions.

Second, under the theory of “checks and balances,” each branch plays an important “guardrail” function checking the other branches and making sure they do not engage in illegal behavior or otherwise stray outside their constitutional role.

Examples of the first: Congress can’t pass laws that strip the President of his role as Commander in Chief; and the President can’t issue an executive order declaring that, given the crisis on the border, he (and not Congress) shall set immigration law going forward. Such actions violate separation of powers because the take away a key power given to one of the branches by the Constitution. Examples of the second category:  the courts can reign in the President or Congress when they overstep their constitutional authority; the President can veto bills passed by Congress; and Congress can override those vetoes or even impeach the President. These are all examples of checks and balances, and they all support our system of separation of powers.

Presidents Nixon and Clinton

When President Nixon (Watergate) and President Clinton (Paula Jones’s sexual harassment claim) faced legal action against them, they argued that the actions should be stopped (or at least reigned in) based on separation of powers. They argued that the actions against them would hinder their ability to carry out their presidential duties, and thus would violate separation of powers. President Trump has made similar arguments against the current congressional investigations. While the Supreme Court agreed with Nixon and Clinton that separation of powers was an important concern, the Court held it was not absolute, and that and in both cases the legal actions could proceed as long as there was appropriate deference to the needs of the Office of the President (in Nixon’s case, he was required to produce Watergate tapes, and in Clinton’s case, Ms. Jones’s lawsuit was allowed to proceed).

In the Current Fight, is Either Side Violating Separation of Powers?

Applying these basic ideas to the current fight over Congress’s investigations into President Trump’s conduct, two basic points emerge.

First, no President can refuse entirely to cooperate with all congressional investigations—to do so would deny Congress the ability to carry out one of its core constitutional functions (oversight) and would thus raise separation of powers concerns. Equally, however, Congress must not abuse its power by pursuing investigations that exceed its constitutional authority, or that seek information that the President can lawfully withhold (such as certain information covered by executive privilege or attorney/client privilege). In short, while Congress has wide power to investigate the President, that power is not unlimited, and while the President often must cooperate with the investigation, he does have several valid bases to refuse.

Two recent court rulings shed more light on these principles.

What do the Courts Say?

In the first case (Trump vs. Committee on Oversight) a Congressional committee issued a subpoena to Mazars (an accounting firm) for certain of President Trump’s financial records relating in part to testimony by Michael Cohen (President Trump’s former attorney) about Trump’s financial dealings. President Trump claimed the subpoena was invalid and exceeded Congress’s constitutional power to investigate. The President argued that there was no legislative purpose to the subpoena, and instead the goal was purely political: an effort to harass and embarrass the President, or a misguided effort to continue the now-concluded probe of Special Counsel Robert Mueller. For these and other reasons, the President asked the court to declare the subpoena unenforceable.

In a May 20, 2019 ruling, the trial court rejected President Trump’s arguments, finding that “so long as Congress investigates on a subject matter on which ‘legislation could be had,’ Congress acts as contemplated by Article I of theConstitution.” Here the court found that the Mazars subpoena met the test because, for example, it could relate to Congress’s efforts to improve ethics and financial disclosure laws, and to Congress’s role “in monitoring the President’s compliance with the Foreign Emoluments Clauses.”

Just two days later, a second ruling came down in a different case (Trump vs. Deutsche Bank) where President Trump tried to block Congressional subpoenas of Trump-related financial records held by private banks. President Trump argued that the subpoenas were politically motivated and had no lawful purpose. The trial judge largely sided with Congress saying the subpoenas appeared to have a valid legislative purpose and were “likely lawful.” He also noted that “the power of Congress to conduct investigations is inherent in the legislative process” and that such power is “broad.”

The Bottom Line

These are only trial court rulings and are already being appealed. But the initial indications are that President Trump faces an uphill battle in his effort to resist Congress’s investigations into his actions. It will most likely fall to the Supreme Court to finally resolve the issue. Many presidents before Trump have fought against congressional investigations, with separation of powers being used by both sides as a weapon in the fight. Such fights are inevitable when power is divided among the branches, especially where the dividing lines between the branches are “fuzzy” and where each branch is encouraged to “get into the others’ business” through the process of checks and balances (such as investigations).

America has a messy system, but it’s messy by design. Our Founders knew that separation of powers produces a slow and inefficient government with inevitable clashes between the branches, but they were willing to pay that price in order to achieve a much larger goal: by dividing power and letting each branch check and balance the others, it is much harder for power to become concentrated in one branch (or one person), and thus much harder for a dictator or tyrant to take power in America and threaten the fundamental freedoms that all Americans enjoy, and that define the nation. Contrary to some claims, the current fight between Congress and President Trump is not a constitutional crisis (at least not yet), and we have seen many versions of this fight before. However, such a crisis could arise if the loser in this battle refuses to follow the final ruling of the courts, something which, thankfully, has almost never happened in America. So long as the current battle, like many before it, is resolved by the “rule of law” then our American system of separation of powers—frustrating and slow as it may be—is working as intended.


Ben Lenhart

Ben Lenhart is a graduate of Harvard Law School and has taught constitutional law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.

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