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October 13th, 2019

Insight

How the Trump-Congress subpoena fight is likely to play out

Philip Bump

By Philip Bump The Washington Post

Published April 26, 2019

How the Trump-Congress subpoena fight is likely to play out
We're just past the brink of a wide-ranging, multifront legal fight between the executive and legislative branches. To determine who's most likely to win that fight, I spoke with Lisa Kern Griffin, a law professor at Duke University.

During our conversation, Griffin outlined five areas in which Congress and the president were likely to butt heads. In each case, the legal boundaries are slightly different, as is the ability of Congress to hold Trump to account. But, more broadly, she explained a central advantage enjoyed by the president.

"The short answer to your question is Congress does have the power to subpoena records and testimony in order to exercise its legitimate oversight function, and it has pretty broad authority in defining what falls within those legitimate exercises of authority," she explained. "It also has the power, if subpoena is defied, to issue a contempt citation that requires the whole House or the whole Senate to issue a citation, but it can be done."

"But after that," she continued, "it takes time for those things to be enforced."

Subpoenas and contempt citations issued by Congress last only for the duration of that Congress - meaning that subpoenas issued now will expire when the new Congress is installed in January 2021. They can be renewed, but if, for example, Republicans retake the House, it's fairly safe to assume they won't be.

"Most of the case law on this presumes a sort of quaint world of political accommodation where parties would negotiate about which information will be divulged and which individuals will testify when," Griffin said. "The current rules and case law are not well equipped to deal with pure, cold stonewalling, which seems to be the White House's posture with respect to all questions or information now."

If you're one of those people tracking the collapse of existing norms in Washington, get out your pencil.

The White House is quite aware of the time limit on the actions taken by House Democrats. An official familiar with the president's legal strategy told Axios that Trump could "run out the clock by taking a hard-line position."

Griffin used the same phrase.

"I think that they can slow-walk it, and that their intent is actually to try to run out the clock until the end of the Congress itself and, of course, up until the election in 2020," she said.

Part of the problem for Congress is that it lacks a robust criminal enforcement mechanism. A recent Congressional Research Service report delineated the two ways in which Congress could pressure administration officials to respond to subpoenas: criminal contempt citations or civil enforcement.

Contempt citations for ignoring subpoenas are powerful in theory, but, problematically in this moment, they rely on the Justice Department for enforcement.

In the past, administrations have simply declined to prosecute those found in contempt by Congress. Often, the refusals to comply with the subpoenas in the first place have been rooted in claims of executive privilege.

That's an important concept in this moment. Administrations can refuse to provide information by claiming that doing so would reveal details of high-level decision-making that should remain protected. It's not an absolute privilege, and, if challenged, the issue would come before a judge to determine whether the information being protected deserved to be shielded by privilege.

Things like negotiations central to national security would be more likely to be upheld as privileged than, say, trying to assert executive privilege over the menu at a state dinner. It's subjective - which makes it perfect for political fights.

Even if the Justice Department did prosecute someone for contempt and obtain a conviction, the result would be a misdemeanor, as Randall Eliason, former assistant U.S. attorney for the District and an adjunct professor at George Washington University Law School, explained to The Washington Post last year.

The civil enforcement process jumps directly to the courts. Those refusing to comply with a subpoena could end up facing a daily fine until they comply. There would likely be no shortage of people willing to help cover those costs. Especially since the fines would likely only apply from the point at which the court finally ruled in the matter - rarely a quick process - until the subpoena potentially expired in early 2021.

Again, though, not all of the fights Trump and Congress will be engaged in have the same legal parameters. Here are five situations that Griffin outlined in our call.

1. Requests for testimony under oath from administration officials

This is the situation with Kline, the official in charge of granting security clearances in the White House. Democrats want to ask Kline about the clearance granted to senior adviser Jared Kushner despite apparent concerns from security officials, among other things.

This is sort of situation that most obviously adheres to the debate outlined above. The Trump administration will assert privilege, and Congress will try to compel testimony anyway. The claim of privilege will likely be evaluated in court.

In the past, Griffin noted, both sides usually worked on a compromise short of that, determining some limited points of testimony or to agree to provide certain information. The Trump administration, though, has demonstrated little interest in even that level of compliance.

"There is no reason to go any further" than working with the probe by special counsel Mueller, Trump said in an interview with The Post, "and especially in Congress, where it's very partisan - obviously very partisan."

2. Requests for testimony from former officials

This situation - which applies to McGahn, among others - is trickier.

"When it comes to someone like Don McGahn or, soon enough, Robert Mueller, they are not bound by DOJ policy or by directions they're receiving from the executive branch," Griffin explained. "In the case of Don McGahn there may well be privilege issues, but both of those critical witnesses are effectively private citizens or will be at the time that they testify."

The "privilege issues" to which she refers are issues of executive privilege, not attorney-client privilege. McGahn was White House counsel, but his client was the presidency, not Trump himself.

She noted, though, that executive privilege claims made by the administration (as it seems poised to do) would be iffy. After all, what House members want to discuss with McGahn is largely his testimony before Mueller's investigators, and the existence of that testimony means that the White House has already declined to protect it as privileged.

"The issues that Congress wants to talk to Don McGahn about involve either no privilege or areas where privilege has already been waived," she said. "So I don't anticipate that any assertions of privilege will be meaningful with respect to Don McGahn's testimony."

Even if there were other subjects that Congress wanted to broach, McGahn is bound by the administration's efforts to exert privilege only to the extent that he feels he's professionally or ethically obliged to respect the White House's request. Now that McGahn no longer works there, Trump's leverage over him has evaporated.

3. Information about administration decision-making

This is one of the more common ways in which Congress seeks information from administrations, asking members of various government departments for information about decision-making or conversations with the White House.

Again, the White House could assert privilege, and, again, normally these requests would traditionally be resolved through negotiation. But here Congress has another tool with which to compel a response: money.

"It has appropriations powers, and sometimes it has used those to leverage information out of agencies, for example," Griffin said. "There are mechanisms that are more clearly within the House's control that it can use in any given power struggle over issues of this sort."

Put simply: If the Department of Interior doesn't want to answer questions from Congress, the House can decide it doesn't want to fully fund the Department of the Interior.

4. The request for the tax returns

This is a very specific subset of the various requests that Congress has made of Trump - but also one of the highest-profile.

Congress set a deadline for Tuesday for the IRS (and its parent, the Treasury Department) to turn over Trump's returns under a law allowing it to request returns from the agency. The administration responded that it would have a response for House committee chairmen in early May as to whether it would provide the returns at all.

Independently, Trump sued the chairman of the House Oversight Committee to try to block the release of his returns. The suit cited a Supreme Court case from 1880, but that ruling was overturned nearly a century ago.

The effort to block the returns' release was described to The Post by experts on the legal issues as a delay tactic - one of many that's again aimed at running out the clock.

5. Requests for other information from external organizations

House Democrats have also requested information from businesses that worked with Trump before he became president. That includes Deutsche Bank, for example, which provided loans to Trump in recent years.

Here, the president's position is much weaker.

"Banks are in the habit of complying with valid subpoenas. They receive them from law enforcement all the time," Griffin said. "I think [Democrats] are more likely to achieve cooperation with entities outside of the executive branch and issues that can't possibly touch on executive privilege."

Even if the White House or Trump Organization sued to block the release of information, the banks or other external organizations would have to get court permission to ignore the subpoena while waiting to determine if the information should be withheld.

"It depends on whether the banks fear litigation by the president in a civil suit more than they fear potentially defying a validly issued subpoena for financial information," she said.

You'll notice that most of these fights are dependent on how courts weigh in on the matter. Kicking the fights to the court has the benefit for Trump of eating up time, but it also means potentially seeing issues resolved at the highest court in the land, now controlled by a conservative majority.

"Congress can and should win eventually in the lower court," Griffin said at one point, "but that's not the end of the story. Some of this could go all the way up to the Supreme Court. It can move faster than ordinary cases, but it is not going to move with lightning speed."

"And," she added, "the clock favors one side of the equation here."

That is, Trump's.

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