The Trump White House’s letter on Tuesday informing House Democrats that it will not cooperate in any way with their impeachment inquiry is a serious escalation in the fight between the two branches of government.
Tensions between Congress and the White House have been high since Trump took office. It’s not unusual for a White House to work at cross-purposes with a hostile Congress, as we saw most recently in the Mueller probe, but to flatly ignore its requests in this way seems, well, different.
The Constitution is pretty clear that we have three separate but equal branches of government. The White House, in ignoring what is by any measure a lawful congressional inquiry, is challenging this principle head-on.
The big question now: Is it actually legal for the White House to ignore Congress in this way? And if the administration persists, does this leave us in a legitimate constitutional crisis?
President Trump speaks to reporters before boarding Marine One, on October 4, 2019.Tom Brenner for The Washington Post via Getty Images
To get some answers, I reached out to 13 legal experts. Their full responses, lightly edited for clarity and length, are below.
There’s no real consensus on the big question of whether we’re facing a genuine constitutional crisis. Some experts think we’ve already crossed that threshold; others say we’ll get there when and if the administration ignores a court order.
Nearly everyone agrees about one thing: We’re entering dangerous territory.
Yes, the crisis is here
Lisa Kern Griffin, law professor, Duke University
The letter from the White House is a political stunt that misinterprets the Constitution, ignores relevant precedents, and defies common sense. The Constitution does not say much about impeachment, but what it does state is clear, simple, and right there in Article I. The House “shall have the sole Power of Impeachment” and the Senate “shall have the sole Power to try all Impeachments.”
No particular process is specified or required. In other words, the House determines the procedures it will use to, in effect, issue an indictment of the president, and the Senate then conducts a trial. Even were this a criminal rather than a political mechanism, bringing an indictment does not require open proceedings and the cross-examination of witnesses. There is zero legal support for the White House’s demands, and the president has also made it clear that there is no procedure at all with which he will cooperate.
Yes, the long-feared constitutional crisis is here. For the White House and the entire administration to reject this constitutional process means open contempt for a coequal branch of the government. The president claims he cannot be indicted by prosecutors unless he has been impeached by Congress, and then he insists he will defy all congressional investigations as well.
The House subpoenas are of course legally valid, but seeking redress in the courts will cause delay, and the passage of time brings the 2020 election closer.
Jessica Levinson, law professor, Loyola Law School
What do you get when you mix a valid congressional impeachment inquiry with a recalcitrant president? A constitutional crisis. We have bandied about the term “constitutional crisis” for almost three years now. But here we are, watching a president flout Congress’ constitutional authority to initiate and proceed with an impeachment inquiry.
An impeachment inquiry is not a dinner invitation. It is not something one can decide whether or not to accept. The president, like other American citizens, is subject to Congress’ subpoena power. Let’s not confuse the president’s refusal to comply with a right to refusal.
The president’s recalcitrance will likely leave Congress adding one more thing to the impeachment inquiry: obstruction of justice.
The real crisis will come if the White House ignores the courts, too
Diane Marie Amann, law professor, University of Georgia
The eight-page letter of the White House counsel may be described as legal-ish. At times it resembles a legal document, and it even cites a few Supreme Court cases. Overall, however, its arguments sound political. The White House has taken a political position that assumes almost unlimited executive power and pays little heed to the checks and balances upon which the US Constitution is founded.
The Constitution gives the House of Representatives “the sole power” to vote on articles of impeachment, following a process to be set by the House itself. There is no doubt that the House can subpoena testimony and documents from employees of the executive branch, and those employees must comply unless there exists a legally recognized privilege. Determining the presence or absence of such a privilege is not a decision solely within the power of the president.
So, no, the White House cannot just refuse across the board to cooperate with subpoenas. Persistence may result in a finding of contempt of Congress, a federal crime punishable by up to a year in prison. If that occurs and that punishment is met with further resistance, surely then there will be an actual constitutional crisis.
Victoria Nourse, law professor, Georgetown University
Conventional wisdom holds that refusing to provide information means that you have something to hide. Congress has the authority to subpoena anyone in the private sphere or the administration for a legislative purpose. This is established law, reaching to 1927. If the president has a claim of executive privilege, that can be asserted, but the courts are its final arbitrators. What the president’s lawyers are, in the end, saying, is, “Take me to court.”
Now, are we in a constitutional crisis? In my own view, the problem has to do with a failure of a neutral mediator. The rules are clear, but the president is refusing to comply with the established rules. Pressure will grow for the judiciary to act, and to act quickly. The law is clear: The president should lose; his agents are subject to a legal subpoena. The true constitutional crisis would occur if the president refuses to follow a court order.
Jens David Ohlin, law professor, Cornell University
Refusing to cooperate represents a change in strategy for the White House. Initially, the White House cooperated (by releasing the transcript of the phone call, for example) in order to take the obstruction argument off the table and not give Democrats another argument in favor of impeachment. The White House has apparently abandoned that strategy.
I wouldn’t describe this as a constitutional crisis because I usually reserve that term for when one branch of government ignores a judicial order and refuses to submit to the rule of law. That being said, the Trump administration is required to submit to requests for congressional oversight and their refusal to cooperate with the congressional investigation brings us one step closer to impeachment.
Although Congress can go to federal court to ask a judge to enforce a subpoena that is being ignored, that move takes time, and in the end, the House may simply decide to use the White House refusal as another justification for impeachment. In this case, impeachment is the ultimate constitutional tool — a blunt tool but a tool nonetheless — for pushing back against a non-compliant executive branch. That’s where we are headed.
Michael Kang, law professor, Northwestern University
It is hard for the White House to convincingly maintain that its complete refusal to cooperate with the House impeachment inquiry is “legal” in the usual sense, but the White House is operating with politics, rather than law, in mind.
Obviously the president isn’t authorized to judge for himself the legitimacy of the House’s impeachment inquiry over himself and then refuse to cooperate on that basis. However, I don’t think it’s quite yet what we should call a constitutional crisis. There’s still the matter of court involvement, which is a likely next step.
Courts are likely to side with the House on its subpoenas and access to grand jury evidence, at least over the arguments the White House has offered so far. If the White House continues its refusals in flat defiance of court rulings, then calling it a constitutional crisis starts to make sense.
Douglas Spencer, law professor, University of Connecticut
The Constitution is not clear about a lot of things. When it comes to impeachment, however, the language is clear: The House of Representatives “shall have the sole power of impeachment.” The Constitution is also clear that “each House may determine the Rules of its Proceedings.”
The Constitution is clear that the House can follow whatever rules it wants. Congress is engaged in an investigation, not a trial. If the president is impeached (a.k.a. indicted) then he would have the right to present evidence and cross-examine witnesses as part of his trial in the Senate. It is wrong to conflate an impeachment with a trial.
Finally, is there a legitimate basis for the current inquiry? The Supreme Court has held that congressional oversight is not unlimited. In Watkins v. United States (1957) the Court held that Congressional inquiries “must be related to, and in furtherance of, a legitimate task of the Congress.” As a result, the Court in 1957 threw out a conviction against union organizer John Watkins who had been held in contempt of Congress for refusing to answer questions by members of the House Committee on Un-American Activities.
The Constitution doesn’t explicitly grant the House of Representatives the sole power of rooting out Communism. On the other hand, the Constitution gives the House the sole power of impeachment. It’s hard to see how Watkins would apply in this case.
Because there is still a constitutionally prescribed path forward, I don’t think we are yet in a constitutional crisis, though yesterday’s events inched us closer. If the courts fail to enforce congressional subpoenas or if the courts enforce the subpoenas and the White House ignores the courts (something it has not done), then we’ll have a true constitutional crisis on our hands.
Trump’s refusal might be a crisis, but the bigger issue is the collapse of norms
Melissa Murray, law professor, New York University
It seems like we’ve been careening from constitutional crisis to constitutional crisis as this administration has repeatedly refused Congress’ oversight requests. The fact that this involves an impeachment inquiry — Congress’ ultimate check on the Executive — amplifies the sense that this is different from what preceded it.
So does this leave us in a constitutional crisis? Maybe. But to my mind, the thing that is most concerning about all of the administration’s frequent clashes with Congress is that they make clear how much we rely on norms, rather than rules (whether constitutional or not), for the government to operate effectively and efficiently.
In the past, when the administration and Congress disagreed over oversight requests, they negotiated a mutually agreeable outcome, and failing that, resorted to the courts to resolve the dispute. The norm of interbranch negotiation and resolution has fallen by the wayside with this administration. It’s unclear whether it can be resurrected going forward. The abrogation of the norms on which the exercise of constitutional powers depend might be the real constitutional crisis here.
Aziz Huq, law professor, University of Chicago
Under no theory of the Constitution does the White House have authority to block any and all (or even most) impeachment-related inquiries. I anticipate that the president’s defenders will generate ‘theories’ purporting to justify his move anon. Those theories (and the confusion they intentionally generate) merely constitute the collateral damage of this presidency on constitutional norms.
Congress has the legal tools to make the White House cooperate
Keith Whittington, politics professor, Princeton University
The letter signals that the White House will do its best to try to delegitimize the entire impeachment process. The House has no obligation to allow the subject of an impeachment inquiry to present a defense, though the House might find it useful to hear what defense might be offered.
The president, like any other impeached officer, would have an opportunity to present a defense, cross-examine witnesses, and the like at the Senate trial. In effect, the White House is declaring that it is unwilling to provide the House of Representatives with any substantial grounds to refrain from impeaching the president and that the White House will choose to present whatever defense it has to offer in the Senate, and perhaps in the 2020 presidential campaign.
Whether the president has appropriately or inappropriately refused to cooperate with a congressional investigation, if the subject matter of the investigation is serious enough and Congress thinks its stakes in pursuing the investigation are high enough, the legislature has the constitutional tools available to it to put pressure on the White House to cooperate.
Those tools ultimately include the power to impeach the president, or other executive officers, for abuse of office by refusing to comply with appropriate and valid congressional inquiries. It would then be up to the Senate to determine whether the position of the House or that of the president ought to be vindicated.
Ciara Torres-Spelliscy, law professor, Stetson University
Forget the Watergate scandal for a minute. If the Trump administration persists in defying Congressional requests for testimony and documents, then we’re really back at the Teapot Dome Scandal from the 1920s. At the heart of the Teapot Dome Scandal was why president Harding’s Attorney General Harry M. Daugherty had not investigated the Secretary of Interior Albert Fall’s shady dealings — including outright bribes — over oil rights in Teapot Dome, Wyoming.
Looking into the matter, Congress had reason to believe that Attorney General Harry’s brother Mally S. Daugherty, who was a banker, had relevant information to provide. When Mally was subpoenaed to appear before Congress, he refused. This led to the Sergeant at Arms’ deputizing a man to go arrest Mally in Ohio. Mally convinced a judge that he was wrongly imprisoned by Congress. This legal battle over whether Congress could make Mally talk eventually led to a Supreme Court case which recognizes the broad subpoena power of Congress.
Some of this legal precedent from McGrain v. Daugherty could be translated directly to current events. One of the questions that the House surely has is when the Inspector General referred the whistleblower’s complaint about President Trump’s call with the President of Ukraine to the Department of Justice for possible criminal prosecution for a possible violation of campaign finance laws, why did the Barr DOJ drop the ball?
Then and now, Congress should have the full ability to investigate the DOJ and other parts of the administration, including the president, so that Congress can properly craft legislation, as well as execute their constitutional duties.
Ilya Somin, law professor, George Mason University
There is room for reasonable disagreement about many aspects of impeachment, including the fairness of the procedures used by the House. But Cipollone’s arguments simply don’t pass the laugh test.
The impeachment power belongs to the House. It applies in situations where there is reason to believe the president has committed “treason, bribery, or other high crimes and misdemeanors.” The founders drafted the impeachment clause to cover a wide range of abuses of power, including ones where there is no violation of criminal law. If Trump withheld aid from Ukraine in an attempt to pressure them into investigating a political opponent, he likely both violated the Constitution and committed a crime.
Article I of the Constitution gives each house of Congress the sole power to “determine the rules of its proceedings.” That includes rules governing impeachment. The House is not bound by the procedural requirements imposed on the criminal justice system. The constitutional requirement of “due process” cited by Cipollone applies to situations where an individual stands to lose her “life, liberty, or property,” none of which is at risk here.
Once the House has decided to conduct an impeachment inquiry, it must have the power to subpoena witnesses and compel submission of relevant evidence. If the president could conceal evidence and ignore subpoenas, Congress’ constitutional authority over impeachment would be seriously undermined. Indeed, failure to cooperate with a congressional impeachment process is itself likely an impeachable offense.
It is too early to tell whether Trump’s refusal to cooperate with the House impeachment inquiry will lead to a constitutional crisis. I suspect not, especially since there is plenty of damning evidence that has already been made public. The White House’s refusal to cooperate may be an attempt to corral a horse that has already left the barn. Still, that refusal is a breach of the separation of powers.
Actually, the Constitution is the crisis
Sanford Levinson, law professor, University of Texas
My view, frequently articulated, is that the Constitution itself is the crisis. What we are seeing right now are the pathological implications of the separation of powers, checks-and-balances, system, which does not prevent an endless struggle unless one side actually concedes.
Without such forbearance, we simply have endless (and nasty) political warfare featuring lawyers shouting at one another and further delegitimizing the American political order in the eyes of a justifiably cynical public. It will be resolved if and only if Republican senators develop some sense of integrity and backbone. I have no confidence at all that will happen.