Never before have so many congressional committees issued so many subpoenas demanding documents and testimony from so many executive-branch officials, with so little attempt at negotiation or accommodation. President Donald Trump says he will invoke executive privilege on “all” of them. Attorney General William Barr balks at appearing before a House committee to discuss the Mueller report without changes in the format. Democrats threaten impeachment, and solemn commentators proclaim that Trump’s refusal to comply subverts America’s constitutional system of checks and balances.
How quickly Washington forgets - when it is convenient. Trump is not the first president to resist congressional investigation of the inner workings of his administration, and Barr is not the first Cabinet officer to negotiate the terms of his appearance before a committee. In fact, the responses are unremarkable.
Does anyone remember President Barack Obama? In 2011, the House Oversight Committee investigated a disastrous Bureau of Alcohol, Tobacco, Firearms and Explosives operation, intended to track illegal gun sales, that put weapons in the hands of Mexican criminals. An assistant attorney general denied to Congress that the Obama administration even knew of the program. The administration later admitted the claim was false.
The Oversight Committee subpoenaed Justice Department documents about Operation Fast and Furious and the deceptive claim. Attorney General Eric Holder said he would comply with the subpoenas only if the House committee agreed in advance to close its investigation. The committee threatened to hold the attorney general in contempt.
Obama invoked executive privilege. The administration claimed that compliance with the subpoena would “inhibit the candor” of executive-branch deliberations and that “compelled disclosure would be inconsistent with the separation of powers established in the Constitution.”
The House voted 255 to 67 declaring Holder in contempt of Congress - but Holder unsurprisingly declined to prosecute himself. The House went to court seeking to force his compliance, but the Obama administration ran out the clock. Holder never complied with the subpoena and went unpunished for the contempt.
Then there was President George W. Bush and his response to the House Judiciary Committee subpoenas regarding his administration’s 2006 dismissal of nine U.S. attorneys: Bush invoked executive privilege. The House voted White House counsel Harriet Miers and Chief of Staff Josh Bolten in contempt of Congress and went to court seeking enforcement of the subpoenas: the first such lawsuit in American history. The House won in District Court, but a court of appeals immediately stayed the decision, which ceased to matter at the end of the Bush administration.
Resistance to congressional demands for documents and testimony goes back to America’s earliest days. After Gen. Arthur St. Clair’s calamitous encounter with native tribes in the Ohio territory in 1791, the House launched the first oversight investigation into executive malfeasance. The House empowered a committee “to call for such persons, papers, and records, as may be necessary to assist their inquiries.” The House demanded relevant papers and testimony from Secretary of War Henry Knox.
President George Washington convened a Cabinet meeting to discuss the demand. According to the notes of Secretary of State Thomas Jefferson, the Cabinet unanimously agreed that the House had the right to conduct an inquiry (apparently because it involved the expenditure of public money) but that congressional requests for information from a Cabinet officer must be presented through the president himself. Washington and his Cabinet also concluded that the president has the right to withhold any papers he believed “the disclosure of which would injure the public.”
In response, the House passed a substitute motion “that the President of the United States be requested” to provide what papers “of a public nature” as might be “necessary to the investigation.” In the end, after exercising his discretion, Washington sent the House all the papers it had asked for.
What does this history tell us? That disputes over congressional demands for documents and testimony are as old as the republic. Congresses demand; presidents resist. Generally, after a political tussle the two sides meet somewhere in the middle. As a leading scholar of the subject, Cornell University law professor Josh Chafetz, has written, “most disputes between the executive and legislative branches over information have historically been settled by negotiation and accommodation.”
This process cannot take place if one side assumes that it has unilateral authority to demand whatever it wishes and that any delay or resistance from the other branch is categorically illegitimate. Trump should abandon his attempt to defy “all subpoenas,” but the House should recognize that the executive is an equal branch of government with constitutional privileges of its own. For a president to assert the rights of his office, as almost every president has done, is neither blameworthy nor impeachable.
Michael W. McConnell, a former federal appellate judge, is a law professor and director of the Constitutional Law Center at Stanford University and senior fellow at the Hoover Institution.