(Note: The writer is answering the question: “Is Congress abusing its subpoena authority?”)
WASHINGTON — Are we in a constitutional crisis? We have the makings of a political crisis, but the constitutional crisis that many are declaring has yet to materialize.
Crisis is a loaded word. At times it can be used in a widely agreed upon context, but in the political realm it can often be used to emphasize a political point and is much more subjective in nature.
Take for example President Donald Trump’s recent assertions that there is a crisis on the border which led him to declare a national emergency.
This is driven by his personal and politically subjective opinion on immigration policy. Many others disagreed with the president about whether his definition of “crisis” was correct. Others, myself included, believe that the “crisis” at the border was created by Trump’s hardline policies and is a humanitarian crisis.
The political battles continue around a host of issues, the rhetoric gets more heated with each battle, and at times that word, crisis, is used.
Democrats in control of the House of Representatives, for instance, are working to use their constitutionally backed powers of investigation to take up the work done in the Mueller probe and determine the extent of Russian election interference and any role Trump, his campaign, or associates played in the interference for questions left unanswered by the probe or that was outside the probe’s scope.
Congressional Democrats, in attempting to exercise their constitutional duties of oversight, have asked for documents, communications and witness testimony.
Trump’s White House and personal legal teams have responded to these fairly common and routinely honored requests with blanket refusals even going as far as to sue the House committees involved to refuse legally obligated compliance.
Again, the word “crisis” is being used as numerous elected officials and commentators are declaring that this activity is a “constitutional crisis.” But again the political nature of our current public and elected political discourse leads to wide variations on what is or is not a crisis.
But is this a constitutional crisis? Well, the U.S. Constitution provides for congressional legislative powers and it was clear that the investigative powers needed to carry out that work were intended.
The Supreme Court and other courts have upheld and clarified these investigate powers. Some would say that Trump’s refusal to comply with congressional requests makes this a constitutional crisis but a recent court decision regarding a congressional subpoena of Trump’s financial documents ruled that Congress does have the power to subpoena and obtain such documents in carrying out its duties.
Others might argue that Congress is creating a constitutional crisis by ordering the release of sensitive documents that the White House may see as under executive privilege restrictions or that the Department of Justice may believe are to be kept classified to protect various functions of their work.
However, again, court rulings have often disagreed and accommodations made allowing for and confirming the congressional right to investigate.
What we truly face in this moment is a supercharged political problem.
A rule bending and possibly law breaking executive branch is protecting its political future, not the separations of powers that they claim.
The Department of Justice’s top leadership is stubbornly and sadly complying with these political motives.
Court rulings past and present, however, provide our path out of this predicament even as legitimate oversight actions are characterized as politically motivated.
So what we have is a political crisis but not yet a constitutional one. If, however, Trump through his related official and personal entities continues to resist legally obligated oversight compliance, if the judicial system somehow abdicates precedent and its constitutional role in ruling on any legal challenges to congressional investigative powers — then, we will ultimately see whether we also have a constitutional crisis.
Don Kusler is national director of Americans for Democratic, the nation’s most experienced organization committed to liberal politics, liberal policies, and a liberal future.