President Trump has declared war on oversight.
As explained by CLC’s Paul Smith an op-ed that ran in The Hill today, Trump’s blanket refusal to comply with all congressional subpoenas is a denial of Congress’s legitimate role in overseeing the executive branch. This fight has ramped up Trump’s efforts to undermine American democracy. The power of congressional oversight is well established.
Further, the President has invoked executive privilege (which protects some internal advice to the President from disclosure), but that doctrine does not begin to justify the kind of wholesale stonewalling we are now witnessing.
Paul’s op-ed in The Hill focuses on the example of former White House Counsel Don McGahn, who refused to comply with President Trump’s order to fire Special Counsel Robert Mueller, which would have stymied the investigation into his coordination with Russia during the 2016 election. McGahn has been subpoenaed by the House Judiciary Committee to elaborate on this description of obstruction of justice, which he explained while cooperating with Mueller.
On Tuesday, The Washington Post reported that two White House officials said the administration plans to invoke executive privilege to shield McGahn from testifying. But that maneuver would not only be illegal, it would be deeply troubling for the rule of law in our country.
First, executive privilege does not provide blanket protection to everything that happens in the executive branch. If it did, oversight would be impossible. The privilege certainly should not be used to block inquiries into whether President Trump obstructed justice by calling on McGahn to fire Mueller.
Second, the White House effectively waived its right to executive privilege when it authorized McGahn to speak to Mueller over the course of 30-hours of interviews, as reported by The New York Times.
Former Watergate prosecutor Richard Ben-Veniste put it well: “I don’t see how the White House can assert executive privilege with something that has already been revealed. To use the Watergate expression, ‘you can’t put the toothpaste back in the tube.’” And the waiver became even clearer when the White House chose not to invoke executive privilege as a basis to redact any portion of the Mueller Report.
The bottom line is that a blanket assertion of executive privilege to block congressional oversight is a gross abuse of power.
The President's blanket refusal to cooperate with congressional oversight is both unprecedented and yet another example of his unrelenting instinct for undermining democratic norms. It needs to be seen in that light and opposed by all those who are working to shore up our system of government – the Congress itself, the courts, and ultimately the American people.
If Trump can get away with ignoring subpoenas from another branch of government, then we have lost an essential check on the power of the Presidency for the future.