House Judiciary Committee Chair Jerry Nadler and House Speaker Nancy Pelosi say we are now in a “constitutional crisis” because Attorney General William Barr declined to comply with a Judiciary Committee subpoena for the unredacted Mueller Report and underlying materials based on President Trump’s assertion of executive privilege. The Judiciary Committee responded by recommending, with a party-line vote, that Barr be held in contempt.
The Democrats’ pronouncement comes amidst other disputes between the executive and legislative Branches: Barr’s no-show at a Judiciary Committee hearing; the Treasury Department’s refusal to provide the House Ways & Means Committee with Trump’s business and personal tax information; and the unresolved effort by the House Intelligence Committee to get the full Mueller Report, ostensibly for counterintelligence purposes.
To be sure, tensions between Congress and the administration have been ramped up. And it’s unusual for an administration official to be held in contempt of Congress, but it’s not unprecedented or cause for alarm.
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It is definitely not a constitutional crisis.
In fact, it was just a few years ago when President Obama’s attorney general, Eric Holder, defied a subpoena from a House committee and was held in contempt of Congress. In that dispute, the House of Representatives demanded that the nation’s chief law enforcement official be criminally prosecuted (he wasn’t).
Indeed, invocations of executive privilege, including in response to congressional subpoenas have happened repeatedly over the course of our nation’s history. These disputes are usually resolved through negotiations and compromise. On the rare occasions when no political solution seemed possible, either the executive or legislative branch has sought to enlist the courts to resolve the issue. Courts approach such matters reluctantly and gingerly but have occasionally issued important decisions about both executive privilege and Congress’s power to demand information from the executive branch.
Tussles between Congress and the president are as old as the Republic.
George Washington claimed that it was a president’s prerogative to determine whether to provide military and diplomatic information to Congress. When Congress sought military information, he ultimately provided it because he determined that doing so was in the public interest. When Congress demanded information about a treaty, he provided it to the Senate but not the House because only the Senate had treaty approval authority.
Thomas Jefferson also claimed that a president had the power to choose whether or not to comply with a subpoena. When the Chief Justice issued Jefferson a subpoena for testimony and documents in the criminal trial of Aaron Burr, Jefferson ultimately provided some information but refused to testify.
Dwight Eisenhower repeatedly asserted executive privilege in the face of demands for members of his administration to testify in connection with the McCarthy hearings, depriving McCarthy’s Senate committee of substantial information.
Perhaps the most notable assertion of executive privilege was by Richard Nixon in refusing to comply with subpoenas for oval office recordings in both a Senate investigation and a criminal trial. As to the Senate subpoena, the U.S. Court of Appeals ruled that the president was not required to comply. The case involving the criminal trial subpoena went to the Supreme Court, which decided that while the president has a powerful executive privilege, a general assertion of the doctrine not tied to some specific presidential power like a military or diplomatic matter may be overcome by a showing that the information was needed in the criminal trial. In response to the Supreme Court decision, Nixon disclosed the recordings that finished off his presidency.
Subsequent administrations have also claimed executive privilege in battles with Congress. In 1982, President Reagan ordered the director of the Environmental Protection Agency to refuse to comply with subpoenas from two House committees. The House then held the administrator, Anne Burford, in contempt and demanded she be criminally prosecuted. (Burford is the mother of Justice Neil Gorsuch.) The Department of Justice refused to prosecute her and the administration filed a civil case seeking a judicial determination that its invocation of executive privilege was appropriate. The court dismissed the lawsuit, holding that all possibilities for settlement had not been exhausted. The administration and Congress ultimately reached an agreement by which the committees were given access to the documents they sought.
In the George W. Bush administration, former White House Counsel Harriet Miers and then-chief of staff Joshua Bolton received subpoenas from the House Judiciary Committee to provide information and testimony in connection with the termination of several U.S. attorneys. Bush invoked executive privilege, and the House held the former officials in contempt. After the Justice Department declined to prosecute, the committee filed lawsuits that lasted years. In the end, a compromise was reached by which most of the documents the committee sought were provided, and Miers testified in a closed hearing.
Which brings us to Attorney General Holder, who was held in contempt of Congress after President Obama cited executive privilege in refusing to give a House Committee information related to the Justice Department’s investigation of the “Fast and Furious” gunwalking operation.
Instead of being criminally prosecuted, the House Government Oversight and Reform Committee brought a civil lawsuit in federal court. Both parties then filed a bunch of legal briefs, while at the same time engaging in negotiations that resulted in the production of additional information to the Committee. Then, after six years and a change of administrations, both sides agreed to dismiss the case. Lots of recrimination and litigation, but the Republic was hardly in danger.
None of these disputes between the executive and legislative Branches caused anything approaching a constitutional crisis. Almost all were resolved through negotiation. On rare occasions courts issued rulings on nuanced legal issues.
This is actually how the system is supposed to work. Remember, our Constitution was crafted to create these kinds of conflicts. They are the intended consequence of the checks and balances built into the Constitution. The Framers, stung by their experience with an all-powerful king wanted to interpose a legislature as a powerful check on the executive. But the Framers didn’t want the president to be subservient to the Congress, so the president was also accorded substantial, independent authority.
The current disputes between Trump and House Democrats are a feature of our constitutional system, not a crisis.
Our nation is not in peril. Here’s what’s going to happen: The full House of Representatives is likely to hold the Barr in contempt and authorize the Judiciary Committee to file a civil complaint. The committee will file a lawsuit. The administration and the Judiciary Committee will file legal briefs. Both sides will continue to negotiate. If no settlement is reached, the litigation will go on for a long time. (Particularly absent impeachment proceedings, the House is unlikely to convince the courts that there is an urgency to reach a final decision.)
Once the trial court reaches a decision, if the case is not moot by then, the case will go to the Court of Appeals. If the case still isn’t moot by the time that court makes a decision – some caselaw says the subpoena expires when a new House is seated in January 2021 – the case would go to the Supreme Court. If it gets that far, the Supreme Court will make a decision. There is, in other words, a calm, deliberative, time-tested process and procedure for addressing a subpoena dispute between Congress and the president.
The House can certainly deploy political tools to try to coerce compliance with their subpoenas, including fulminating public opprobrium and exercising the power of the purse. And let’s not forget, Congress holds the ultimate trump card: impeachment and removal, which would be enormously disruptive and indeed unprecedented, but still not a constitutional crisis.
While it all looks a bit messy, this is how our constitutional system is supposed to work.
Ross Garber practices law in Washington, D.C. and teaches political investigations and impeachment law at Tulane Law School. He has represented four U.S. governors in impeachment proceedings. He is also a CNN Legal Analyst.
