Yeomans Work

Coronavirus Infects Checks and Balances

April 3, 2020

As the country faces the pandemic, social distancing and provision of medical services are vital to save lives. We must not forget, however, that oversight of the executive in this difficult time remains vital to saving democracy.

The Trump administration has fought congressional and judicial oversight with the ferocity of the guilty. It has hidden behind absurd assertions of absolute privilege and strained interpretations of congressional authority to resist subpoenas for witnesses and documents. It has argued that the president cannot be investigated for crimes, much less indicted. It has claimed that the remedy for a president who commits crimes is impeachment, but it has simultaneously argued that Congress is not entitled to subpoena witnesses and documents for impeachment. To top it all off, it has argued that courts lack authority to referee disputes between the executive and legislative branches.

Trump’s war on transparency has been led by his lawyers, most prominently Attorney General William Barr. Barr has articulated and pursued an extreme version of the unitary executive theory of the presidency in which the president’s actions can rarely be questioned or limited by Congress or the courts. In this view, the traditional checks and balances so essential to our constitutional system become nuisances to be brushed aside in pursuit of unfettered executive power. Trump built a wall around his presidency to keep Congress and the courts out.

Trump’s disabling of Congress and the courts (aided by his remaking of the courts in his own image) has worked astonishingly well through the first three years of his administration. Some potential cracks, however, were appearing in the administration’s protective wall through upcoming hearings and court cases. Then, along came the coronavirus to disable the institutions of government that threatened to hold Trump and his administration accountable before he faces the public in November.

Congress has had to suspend traditional oversight, as hearings have become cauldrons for infection. Attorney General Barr, for example, was scheduled to appear for the first time in a year before the House Judiciary Committee this week. He would have faced difficult questions about his politicization of the Department of Justice on such topics as: his handling of the Mueller Report (including his misleading descriptions of its findings and his unfounded investigation of its origins), his role in attempting to block the Ukraine whistleblower’s complaint and in declining to investigate the criminal referral it generated, and his interference in the sentencings of Roger Stone and Michael Flynn. This is important stuff, but the hearing has been postponed indefinitely.

Similarly, hearings that should be held to address a host of issues ranging from climate change to health care to Foreign Intelligence Surveillance Act practices will have to wait until it is safe to convene. Congress is now slated to return to Washington on April 20. That date seems aspirational in view of the consequences of summoning 535 aging adults and thousands of staffers to mill about in close quarters for extended periods as the plague reaches its zenith. Odds are good that Congress will not be functioning fully until a much later date. Without hearings, and with unhealthy working conditions for members and staff, oversight will suffer.

The oversight challenge came into sharp relief last week as Congress authorized $2 trillion in coronavirus relief. Congress legitimately was very concerned about entrusting this enormous relief package to a president who is incapable of sublimating his greed to the needs of the public. It, therefore, included in the legislation extraordinary oversight mechanisms, including a special inspector general in the Treasury Department to report directly to Congress on Secretary Mnuchin’s distribution of the enormous pot of money in the bill. The inspector general was tasked with reporting directly to Congress. Not surprisingly, Trump announced in his signing statement he would not honor that provision, but instead would permit the inspector general to communicate only under presidential supervision. Trump’s statement makes it clear that the select committee announced by Speaker Pelosi to oversee implementation of the relief package will have to fight hard to obtain essential information from the administration.

Congressional overseers hoped for significant help from the Supreme Court in penetrating Trump’s wall. Two cases involving congressional subpoenas for Trump’s financial information were scheduled for argument this week and decision by the end of June, but the coronavirus forced the Court to postpone the arguments indefinitely. One case involves a subpoena issued by the House Committee on Oversight and Reform to Mazars USA, the Trump organization’s longtime accountants, for financial documents. The second involved subpoenas issued by the House Committee on Financial Services and the House Intelligence Committee to Trump organization creditors, Deutsche Bank and Capitol One.

Trump and his organization sued to block the subpoenas, asserting protection from investigation under an expansive view of the unitary executive and a narrow view of congressional authority. All of the lower courts, including the D.C. Circuit in Trump v. Mazars USA and the Second Circuit in Trump v. Deutsche Bank, found for Congress. The courts upheld Congress’s broad authority to subpoena information relevant to its legislative responsibilities. Plainly, investigating the president’s ethics could lead to new legislative restrictions, as could investigating his debt. It is no bar to investigation that Congress might also uncover crimes.

In a third linked case, Trump sought to block a grand jury subpoena issued by a New York state grand jury to Mazars USA, seeking Trump’s tax returns and other financial information in connection with a criminal investigation. The Second Circuit upheld the validity of the subpoena.

The Court has not given any indication when it might hold these arguments. Any substantial delay will insure that Trump’s financial information remains secret beyond November.

Meanwhile, the operations of lower courts have been impeded by the virus. For example, Judge Reggie Walton of the D.C. District Court stated that he planned to review the unredacted Mueller report out of concern that redactions in the public report may have been made in bad faith and AG Barr may have exhibited a lack of candor in his public statements. He subsequently announced that his review would be delayed substantially due to restrictions imposed on the operation of the court because of the coronavirus. Upcoming arguments, such as the en banc D.C. Circuit’s Scheduled April 28 argument to determine whether former White House Counsel Don McGahn must testify before Congress, hover in an uncertain future.

The Trump administration knows that it benefits from delay. Its consistent strategy has been to throw every conceivable theory of immunity at overseers, knowing that many are specious, but forcing Congress and courts to take time to litigate them. That approach, no doubt, will continue as Congress tries to track the administration’s use of relief money.

The administration’s defenses will grow even more desperate as it tries to fend off Congress’s necessary efforts to investigate the administration’s disastrously inept response to the impending pandemic. The president will understand that his reelection depends almost entirely on the public’s perception of his response to the virus and will fight desperately to conceal the facts and rewrite his role. His lawyers can be expected to question the authority of Congress and assert far-reaching privilege to protect presidential communications and deliberative process material.

Congress, even though working under serious constraints, must not shy from its duty to uncover the full story, without which we cannot be prepared for the next stages of this pandemic and future health crises that surely will come. Courts, too, must not retreat from their role in refereeing disputes between the executive and Congress. Without their intervention, Trump’s stonewalling will harm the country.

The bottom line is that the pandemic has impeded severely the work of the co-equal branches of government essential to imposing accountability on the President. Congress and the courts must do everything in their power to prevent this horrible disease from further undermining their roles in checking an executive determined to remain unaccountable.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.