As legal experts, historians, and Democratic lawmakers have sounded the alarm over President Donald Trump’s blanket obstruction of congressional oversight of his presidency -- suggesting we have reached or are approaching a constitutional crisis -- Trump’s conservative media allies are brazenly misrepresenting the arguments and suggesting everything boils down to a fight over the Mueller report, claiming Trump’s obstruction is normal, and ridiculing Democrats for speaking out.
The Trump administration is blocking more than 20 congressional probes
Wash. Post: “President Trump and his allies are working to block more than 20 separate investigations by Democrats … amounting to what many experts call the most expansive White House obstruction effort in decades.” A May 11 article by The Washington Post detailed the all-out obstruction effort by President Donald Trump:
President Trump and his allies are working to block more than 20 separate investigations by Democrats into his actions as president, his personal finances and his administration’s policies, according to a Washington Post analysis, amounting to what many experts call the most expansive White House obstruction effort in decades.
Trump’s noncooperation strategy has shifted from partial resistance to all-out war as he faces mounting inquiries from the Democratic-controlled House — a strategy that many legal and congressional experts fear could undermine the institutional power of Congress for years to come. All told, House Democrats say the Trump administration has failed to respond to or comply with at least 79 requests for documents or other information.
Kerry W. Kircher, who served as House counsel for the last GOP majority, said the standoff marks “a complete breakdown and complete obstruction of Congress’s role.”
“If the court signs off on this stuff, then we’ll have an imperial presidency,” Kircher said, adding: “We’ll have a presidency that will be largely unchecked.” [The Washington Post, 5/11/19]
Democrats sound alarm over Trump’s refusal to submit to congressional oversight
Rep. Jerrold Nadler: “We cannot allow Donald Trump and his minions to convert a Democratic government into what amounts to a monarchy where Congress elected by the people has no real role.” In a May 8 interview with CNN’s New Day, Rep. Jerrold Nadler (D-NY) responded to host Alisyn Camerota’s description of the situation of Trump’s refusal to cooperate with congressional probes as a “constitutional crisis” by saying the phrase is “overused” but accurate and that Congress cannot allow Trump to ignore its oversight role:
ALISYN CAMEROTA (ANCHOR): I'm sensing frustration. On a scale of one to 10, how frustrated are you this morning?
REP. JERRY NADLER (D-NY): Well, it's not a question of frustration. The law must be vindicated. The American people must know what's going on. Appropriate action, whatever that may be, must be taken and the president must not be permitted to operate a lawless administration and become a king.
CAMEROTA: The term constitutional --
NADLER: And we will have to insist on that no matter how long it takes. We cannot allow Donald Trump and his minions to convert a Democratic government into what amounts to a monarchy where Congress elected by the people has no real role.
CAMEROTA: Look, it sounds like what you're saying a monarchy but by another name it's a constitutional crisis. Where do you think --
NADLER: Well, the phrase constitutional crisis has been overused, but certainly.
CAMEROTA: Certainly what?
NADLER: Certainly it's a constitutional crisis, although I don't like to use that phrase because it's been used for far less dangerous situations. The phrase has been overused.
CAMEROTA: I hear you, but you feel that we are currently in a constitutional crisis or headed for one?
NADLER: No. No. We are in one. We are in one because the president is disobeying the law, is refusing all information to Congress, which means that -- I mean, when -- when he told the -- his nominee for the head of Homeland Security close the border and he said, well, that's illegal, he said, don't worry, I will protect you. That's a lawless administration. We cannot have a lawless administration. [CNN, New Day, 5/8/19]
House Speaker Nancy Pelosi agreed with Nadler: “Every day” the Trump administration is “advertising their obstruction of justice by ignoring subpoenas and by just declaring that people shouldn’t come speak to Congress.” House Speaker Nancy Pelosi (D-CA) said on May 9 that she agreed with Nadler that Congress has to conduct its “legitimate oversight responsibility” and Trump and his administration “are not going to honor their oath of office.” From The New York Times:
Speaking to reporters in the Capitol, Ms. Pelosi said she agreed with Representative Jerrold Nadler, chairman of the House Judiciary Committee, who said Wednesday that the nation was in a constitutional crisis after his committee recommended the House hold Attorney General William P. Barr in contempt of Congress for refusing to turn over an unredacted version of the special counsel’s report, along with the report’s underlying evidence.
“The administration has decided they are not going to honor their oath of office,” she said.
But with Mr. Trump stonewalling Democrats and vowing to fight “all the subpoenas,” party leaders including Ms. Pelosi are increasingly casting the decision about impeachment in terms of the Constitution’s system of checks and balances — a message they believe voters can easily relate to.
“Will the administration violate the Constitution of the United States and not abide by the request of Congress in its legitimate oversight responsibility?” she asked, adding, “Every day they are advertising their obstruction of justice by ignoring subpoenas and by just declaring that people shouldn’t come speak to Congress.” [The New York Times, 5/9/19]
Sen. Kamala Harris: “I think it is fair to say that we are looking at a crisis, not only of confidence, but potentially a constitutional crisis, yes.” CNN anchor Jake Tapper asked Democratic presidential candidate Sen. Kamala Harris (D-CA) in a May 12 interview on State of the Union whether she agreed with Nadler and Pelosi that America is “in a constitutional crisis.” She agreed, citing the Trump administration’s refusal to comply with congressional oversight:
JAKE TAPPER (ANCHOR): Do you agree? Are we in a constitutional crisis?
SEN. KAMALA HARRIS (D-CA): I think we probably are.
I mean, listen, a constitutional crisis is defined as generally when the system that we set up with checks and balances, when each of the independent co-equal branches of the government fails to perform its duties.
And I think that we are seeing a breakdown of responsibilities. We saw it last week in the Barr hearing. We're seeing it in terms of a failure to compile its subpoenas.
You know, now, being a member of the United States Congress in the Senate, I am seeing up close where the -- there is a failure to respect the significance of Congress' duty to perform a role of oversight over the administration, over the agencies.
I'm seeing a failure to appreciate the importance of testifying before Congress in a way that is straightforward and truthful.
So I think, yes, I think it is fair to say that we are looking at a crisis, not only of confidence, but potentially a constitutional crisis, yes. [CNN, State of the Union, 5/12/19]
Many experts say the Trump administration’s stonewalling of oversight constitutes or approaches a constitutional crisis; others say that won’t be the case unless Trump refuses a court order
University of North Carolina law professor William Marshall: “There’s nothing in history that comes even close to” what Trump is doing. William Marshall, a University of North Carolina law professor, told The New York Times, “There’s nothing in history that even comes close to” Trump’s refusal to accept congressional oversight:
“A president who refuses to respond to congressional oversight is taking the presidency to new levels of danger,” said William P. Marshall, a law professor at the University of North Carolina. “We’re supposed to be in a system of checks and balances, and one of the biggest checks that Congress has over the executive is the power of congressional oversight.”
“Not responding to that is to literally say that you’re above the law and you’re above the Constitution,” he said. “There’s nothing in history that comes even close to that.” [The New York Times, 5/7/19]
Stanford law professor David Alan Sklansky: “There’s something different about” Trump saying “we’re not going to comply with subpoenas” because they came from Democrats. Stanford law professor David Alan Sklansky said Trump’s refusal to cooperate with congressional probes goes far beyond from previous administrations’ clashes with Congress on oversight. From The New York Times:
David Alan Sklansky, a law professor at Stanford, said the nation is moving from the minor scuffles that gave rise to contempt citations against officials in the Bush and Obama administrations to a dangerous standoff.
“There’s something different about saying, across the board, that we’re not going to comply with subpoenas sent to us by a house of Congress controlled by Democrats because they’re the enemy and we’re just not going to do it,” he said. “Our system depends on some commitment by both parties and by all public officials to continuing a constitutional order.”
“It’s not a cliff that you fall off, and suddenly you’re in a constitutional crisis,” Professor Sklansky said. “It’s more like a slope, and how far down the slope you are.” [The New York Times, 5/7/19]
Former Congressional Research Service congressional oversight expert Morton Rosenberg: “This is constitutional crisis time.” Morton Rosenberg, formerly a congressional oversight expert with the Congressional Research Service and currently a fellow at the conservative Federalist Society, told the Washington Examiner that Trump’s blanket refusal to cooperate with congressional probes is “constitutional crisis time”:
President Trump’s vow to fight “all the subpoenas” from House Democrats threatens a constitutional balance struck between the executive branch and Congress for the last 90 years.
Legal experts from different political standpoints say that, by resisting congressional inquiries on flimsy grounds, Trump could prompt House Democrats to pursue impeachment in the near term and weaken the legal standing of the executive branch to resist future probes.
“This is constitutional crisis time. It truly is,” said Morton Rosenberg, a former Congressional Research Service expert on congressional oversight matters and a fellow with the Federalist Society, a conservative-learning legal organization.
Rosenberg and most other experts say that Trump’s arguments against several pending House Democratic inquiries lack merit and would be defeated in court. [Washington Examiner, 4/26/19]
Princeton University history professor Julian E. Zelizer: “I think we are looking at” a constitutional crisis. Julian E. Zelizer, a history and public affairs professor at Princeton University, said Trump’s refusal to submit to congressional oversight, along with Senate Republicans’ failure to hold him accountable, has led America to a constitutional crisis. From a May 9 Associated Press article:
Congressional experts say a big risk is setting a precedent that goes way beyond Trump. What happens, for example, if an administration stonewalls Congress on information it wants for an investigation of air or water quality rules — or anything else? Can the White House just say no?
“We have a big problem,” said Julian E. Zelizer, a Princeton University professor who studies history and public affairs.
Trump's new stance, at the end of the Mueller investigation, comes as the president faces a divided Congress for the first time. Democrats talked of being a check on him when they took control of the House in January, upsetting the calm he enjoyed during two years of friendlier relations with Republicans in charge of both chambers.
Zelizer said with Trump “aggressively flexing power to shut down oversight capacity of another branch,” it's “unclear who and how this is resolved, especially with Senate Republicans standing by their man.”
Asked if this is a constitutional crisis, Zelizer said, “I think we are looking at one.” [The Associated Press, 5/9/19]
Boston College history professor Heather Richardson: “We are in the worst crisis that American democracy has ever had.” Heather Richardson, a history professor at Boston College, told the digital news outlet Quartz that American democracy is currently in its “worst crisis” ever, suggesting that the failure of Republicans to rein in Trump when they controlled Congress has made him think he can flout his constitutional role:
The US has entered a constitutional crisis, a growing number of historians and government officials say, as Trump and his administration defy protocol in new ways. “We’ve talked about avoiding a Constitutional crisis. We are now in it,” House Judiciary chair Jerrold Nadler said this afternoon, as the committee voted 24-16 to hold Attorney General William Barr in contempt of Congress.
“We are in the worst crisis that American democracy has ever had,” said Heather Richardson, a history professor at Boston College who traces the evolution of the Republican Party.
Richardson contends that if the Republicans who controlled both houses of Congress for the first two years of Trump’s presidency had “nipped in the bud” his overreach in his first weeks in office, “we would not be where we are.” Instead, Trump spurned US allies, appeared to profit from the presidency, and gained more confidence in running the White House like his own private company.
“The problem with a leader like Trump is they cannot stop,” Richardson said. “It is oxygen to them to keep pushing the limit. The only way he can feed not just his base but himself is to keep upping the ante.” And Trump’s popularity among Republicans remains as strong as ever. [Quartz, 5/8/19]
American Oversight chief counsel John E. Bies: If Trump’s actions are a deliberate strategy to resist all oversight, “then the country is truly at an important constitutional moment” that could become “a reset of the constitutional system.” John E. Bies of the nonprofit organization American Oversight wrote on the Lawfare blog that if Trump continues to stonewall congressional oversight, he will be putting enormous pressure on our system of checks and balances that could upend Congress’ oversight role:
If the pattern of statements and actions by the executive branch over the past week is a harbinger of a sharp turn to such a maximalist resistance strategy, then the country is truly at an important constitutional moment that has the potential to shape the relationship between the branches in significant ways for the foreseeable future.
In this sense, the decision to adopt a strategy of resisting oversight across the board would be a form of constitutional hardball. That is, it would be taking an uncompromising approach in the pursuit of partisan ends that may not violate express constitutional commands but certainly flouts long-standing conventions and norms about how constitutional processes should operate—conventions and norms that officials have, in the past, regularly followed out of a sense of obligation. These tactics, then, are not just political hardball. Rather, as Joseph Fishkin and David E. Pozen describe it, such tactics “put pressure on the ‘norms of good institutional citizenship’ that help to structure and ‘sustain the constitutional system.’”
The adoption of constitutional hardball tactics places other constitutional actors in a difficult quandary. Actors on the receiving end are often confronted with a choice between two unappealing options: acquiesce, and accept the changes in the constitutional system wrought by the dissolution of the constitutional understandings and conventions that have been broken; or escalate, and enter a high-stakes constitutional confrontation that may be politically unappealing. When the president is the one adopting a constitutional hardball tactic, there is an additional complication: Congress’s institutional interests may be at cross-purposes with the political interests of at least those members who share the same party as the president, which creates cross-pressures that can confound Congress’s ability to respond in an effective manner.
This is the choice facing the House of Representatives—and, more specifically, House Democrats—if the administration has, indeed, adopted a strategy of resisting oversight across the board.
To acquiesce to such resistance across the board would be to accept a fundamental reworking of the norms and conventions that structure interbranch interactions about oversight. These changes would effect a reset of the constitutional system that could be difficult to reverse in the future (perhaps to the future chagrin of the Republican members who would have facilitated this shift). So Congress might be living with the precedents set this year for a long time. [Lawfare, 4/27/19]
Two legal experts told Slate that the situation will fit the formal definition of a constitutional crisis if Trump refuses a court order to cooperate with congressional oversight. In a May 9 article, Slate asked multiple legal experts whether the Trump administration’s actions currently create a constitutional crisis. Fordham law professor Jed Shugerman said “the key question to me is whether either party bypasses the courts or defies the courts,” pointing to the Trump administration possibly “ignoring a court order to turn over documents.” Former Clinton administration acting solicitor general Walter Dellinger also said the key moment would be “when a final court order is defied.” But he said the Trump administration’s legal position is “seriously weak.” [Slate, 5/9/19]
Conservative media have falsely claimed that Democrats are concerned only with the Mueller report, suggested that Trump’s tactics are normal, and mocked Democrats for speaking out about Trump’s obstruction
Fox’s Brian Kilmeade: “So there are countless investigations. … And for the most part, the White House looked at all of this and said this is out of control.” From the May 13 edition of Fox News’ Fox & Friends:
BRIAN KILMEADE (CO-HOST): When we started this show, we were playing “Panic at the Disco.” We have a different kind of panic, it's called a crisis, a constitutional crisis, that according to some Democrats, perhaps.
AINSLEY EARHARDT (CO-HOST): Remember Democrats wouldn't say crisis at the border. They said it was a manufactured crisis. Well they have been screaming crisis after what happened with William Barr when he -- when they voted to hold him in contempt.
STEVE DOOCY (CO-HOST): We want a clean copy of the Mueller report. We don't want anything Sharpied out. We want to see the whole thing.
EARHARDT: Right. But the sound bite yesterday on all the Sunday shows from the Democrats: constitutional crisis. Listen.
KILMEADE: So there are countless investigations. Thirty-six major investigations. Countless requests for documents. And for the most part, the White House looked at all of this and said this is out of control. They actually -- [Rep.] Adam Schiff in his explanation said you know, the president is using executive power, well we're asking for stuff that happened before he was the executive, when he was a businessman. Which gets to the definition, what the heck are you doing? You’ve got an immigration catastrophe. You got major flashpoints in North Korea, Iran, a trade deal that's blowing up with China. You have so many domestic issues to address, and you’re focusing on Donald Trump's casino purchases? You got to be kidding -- or his son being surprisingly subpoenaed to go back to the Senate and talk about what Michael Cohen lied about? [Fox News, Fox & Friends, 5/13/19]
Fox’s Steve Doocy falsely claimed Democrats are requesting documents that would be illegal to release. Contrary to Doocy’s claim, there are various legal avenues for Congress to receive the Mueller report. From the May 13 edition of Fox News’ Fox & Friends:
EARHARDT: Last week Jerry Nadler voted, had his committee vote, to hold Bill Barr in contempt. We kept hearing him say last week, “constitutional crisis.” Nancy Pelosi agreed with him, continued to use that phrase, “constitutional crisis.” And the Democrats continued to use it through the weekend as well. Listen to this.
DOOCY: Well, you got to say this about the Democrats, they are good at talking points. And clearly, because with the Mueller investigation, they did not get the outcome that they wanted, which would be Donald Trump leaving the White House. They’ve been given this as the talking point because, I think, the average American is a little confused. They hear this stuff about well, you know, they want this unredacted copy of the Mueller report, to a lot of people that's not a big deal. Just give them a copy. But there is certain grand jury information that by law they cannot release. [Fox News, Fox & Friends, 5/13/19; Media Matters, 5/9/19]
Fox’s Jeanine Pirro: “The only constitutional crisis is the one created by Obama administration officials of a false Russia collusion, spun by that master of deceit himself, Jim Comey, the disgraced former head of the FBI.” From the May 11 edition of Fox News’ Justice with Judge Jeanine:
JEANINE PIRRO (HOST): Constitutional crisis? How? Because they can't get the full Mueller report? Are they all stupid? They have 98% of the full report. And I’ve got news for you bozos: You weren't even entitled to any of it. The report was written for the attorney general by the special counsel. The attorney general decided to issue a four-page conclusion and offered skeptical Democrats a SCIF, a secure facility, to see the whole report. Not one Democrat wanted to see it. So Attorney General Barr was in the impossible position of violating federal law and releasing 6E jury testimony, or acquiescing to the demands of the radical looney left.
Folks, the only constitutional crisis is the one created by Obama administration officials of a false Russia collusion, spun by that master of deceit himself, Jim Comey, the disgraced former head of the FBI. [Fox News, Justice with Judge Jeanine, 5/11/19]
Fox’s Jesse Watters: “All presidents refuse to hand things over to Congress.” From the May 11 edition of Fox News’ Watters’ World:
JESSE WATTERS (HOST): All presidents refuse to hand things over to Congress; Democrat, Republican. I guess when Trump's president, then it becomes a crisis. Ninety-eight percent of the Mueller report has been released. The 2% that hasn't been is grand jury testimony, and it's against the law to release that. So Democrats are holding Barr in contempt for following the law. [Fox News, Watters’ World, 5/11/19]
NY Post columnist David Harsanyi attacked Democrats for engaging in “histrionics” and pretending “we are living through another Watergate.” From a May 8 New York Post column by David Harsanyi:
After a week of histrionics about Attorney General Bill Barr, who had offended Democrats and their media allies by writing a letter that accurately laid out the findings of the special counsel’s two-year investigation before releasing it, House Judiciary Committee Chairman Jerry Nadler began demanding the release of the unredacted report. The White House, as expected, asserted executive privilege.
Though the law clearly places discretion over the redaction with the attorney general, Nadler claimed assertion had triggered a “constitutional crisis.”
It’s all an act, of course, meant to create the perception that Barr, in cahoots with Trump, is hiding the findings of Mueller’s unimpeded and open-ended investigation. For Democrats, instigating a contempt vote over a lightly redacted report is the best way to pretend we are living through another Watergate.
In the real world, the notion that a Trump antagonist like Mueller has buried vital evidence implicating the president in conspiracy or obstruction deep within the now-redacted sections of his report is dizzyingly silly. From the looks of it, Mueller spent more time describing Trumpian outbursts than looking for Russian interference.
There is a legitimate need for congressional oversight of the executive branch. For far too long, partisans have abdicated their constitutional duty. And when people like Nadler use that power as a political cudgel, they corrode the public’s trust. [New York Post, 5/8/19]
Fox’s Brit Hume misrepresented Trump’s blocking of congressional oversight as a “constitutional skirmish” over the redacted Mueller report.
This “constitutional crisis” is barely a constitutional skirmish, a dispute over a tiny slice of a report nearly 100 per cent available and which those calling for contempt have not even read. https://t.co/f2qURgu0AE
— Brit Hume (@brithume) May 9, 2019
National Review editorial: Nadler’s declaration of “constitutional crisis” over “a couple of redacted lines” is “absurdist theater.” A May 9 National Review editorial headlined “Constitutional Crisis As Absurdist Theater” also downplayed the Trump administration’s broad refusal to submit to congressional oversight as a disagreement over the Mueller report:
Jerry Nadler has declared a constitutional crisis.
The proximate cause is a couple of redacted lines, including one footnote, in a 400-page report. Let’s be glad for the sake of the republic that an entire page wasn’t withheld.
Barr is clearly being targeted so Democrats can make a show of punishing someone in the administration, without taking the much more politically perilous step of impeaching the president. Although her statements have been a bit all over the map lately, Speaker Nancy Pelosi still must realize that impeachment would likely be a political mistake. But the more Nadler and others inflate the current faux crisis, the greater the likelihood that Democrats crab-walk their way to the impeachment proceedings they may think they are forestalling by scapegoating Bill Barr. [National Review, 5/9/19]