Symposium | Trump Vs. Democracy

Stonewalling Congress

By Aziz Huq

Tagged CongressDemocracyDonald TrumpTrump Administration

Information is the lifeblood of modern government. But in our separation-of-powers system, the executive branch increasingly monopolizes knowledge about how federal law is administered and, especially, how its awesome coercive powers are deployed. This knowledge, worryingly, is increasingly concentrated in the White House. More and more, legislators—and hence the voting public—risk flying blind when facing an empowered presidency.

The Trump Administration has sharpened this epistemic dilemma in two ways. First, it has stonewalled congressional inquiries in newly minted—and newly successful—ways. Second, it has used the removal power to dismantle internal rule-of-law mechanisms, particularly inspectors general that support Congress’s oversight. To pivot back to a government that competently serves the people at large based on expertise and within the law, these opacities need cracking.

The inquiry into the Ukraine affair paints these trends in microcosm. Here, the White House bluntly refused to cooperate in almost any way with Congress. At the White House’s direction, some 17 witnesses refused to provide testimony or documents to the House. Subpoenas were ignored as a matter of course. In the end, the House Judiciary and Intelligence committees received not one single document from the White House, the Office of the Vice President, the Office of Management and Budget, the Department of State, the Department of Defense, or the Department of Energy. The basis for this stonewalling—that the House’s inquiry violated “fundamental fairness and constitutionally mandated due process”—was a makeweight. It had no basis in law or the Constitution.

Yet in the wake of this absolute refusal to yield up evidence, the President was acquitted in the Senate. No evidence suggests that the White House’s blanket defiance had any negative repercussions for the President or his Administration’s popularity. As the former (Republican) counsel to the Speaker of the House of Representatives observed, President Trump in effect “declared war on the House [of Representatives]’s investigation[s] of the executive branch”—and won.

To be sure, Congress is an inconstant and fickle overseer of the executive branch. It has neither the bandwidth nor the technical capacity to provide a general check on all defalcation and self-dealing. Oversight falls off sharply when government is united. To plug these gaps, legislators have created various “internal” checks. Among the most important is the system of Inspectors General, or “IGs,” passed into law in 1978 and tasked by statute “to assist Congress in its oversight duties.” But President Trump has removed five IGs in recent months. In one case, Trump failed to supply adequate and timely reasons for his removal of Intelligence Community Inspector General Michael Atkinson, as the law requires. Notice how this interacts with his stonewalling of Congress: Atkinson’s sin seemed to have been taking a Ukraine-related whistleblower’s complaint seriously.

These skirmishes over oversight are nested in a larger conflict over what might be called the “epistemic foundations” of democracy. A common ground of empirical facts is needed in any democracy. But that ground has come under sustained attack by a presidency built on the “birther” lie and tightly aligned with Breitbart, QAnon, and Fox News. Moreover, the government’s role as producer of scientific and economic facts has suffered—so much so that any prospective vaccination campaign against coronavirus already confronts disabling public distrust. Reestablish government transparency is one step in rebuilding a democratic public sphere.

One obvious reform is a stronger tenure rule for IGs, and clearer reporting obligations to Congress. This is straightforward enough. More complex are these questions: What should Congress do differently? How can oversight be cut loose from the distorting effects of partisanship? How can it be proofed against presidential intransigence and foot-dragging? In politics, after all, most information has a sell-by date. Hide it long enough, and it loses all value.

An alternative system of effective oversight would have three elements. These mesh together to yield a steady stream of well-tailored, timely oversight by legislators.

First, each chamber should use its power to enact its own rules of procedure to allow subpoenas against the government to be issued either by the chair or the ranking minority member of a jurisdictionally proper committee, if he or she obtains the support of all other copartisans on the committee. This breaks the link between partisan control of a house on the one hand, and the intensity and frequency of oversight on the other. It ensures that during periods of unified government, the administration doesn’t become completely occluded.

Second, increasing the volume of congressional information requests elevates the risk of abusive subpoenas. To address this problem, legislative subpoenas of the government should be channeled through a permanent, nonpartisan office staffed by lawyers within the congressional bureaucracy. Call this the “General Overseer Counsel” or “GOC.” The first task of the GOC would be to screen committee requests for information. The second would be to work with IGs to illuminate executive behavior. And the third would be to litigate when negotiation over disclosures break down.

The GOC could play a screening function because the Supreme Court recently announced a new legal rule for legislative subpoenas. The justices distinguish informational requests grounded in a legitimate congressional purpose from open-ended fishing expeditions driven by partisan spite. By allowing both minority and majority subpoenas, but then also selecting for compliance with the Court’s rule, the GOC would promote a more constant flow of well-grounded information requests.

The notion of a GOC is not as novel as it sounds. Congress already has a powerful bureaucracy that generates information and analysis. The Government Accounting Office and Congressional Budget Office are its best-known elements. Since the 1970s, both the House and the Senate have also had in-house legal counsel. The idea of a GOC innovates by insulating this legal function from partisan swings, allowing it to serve the institutional interests of each house. The GOC could also coordinate with IGs to ensure a complementarity of internal and external oversight.

Finally, Congress should enact a law creating a new procedural framework for the resolution of legislative subpoenas before information becomes untimely. Here, it should draw inspiration from another context in which judges deal with “ice-cube” assets—federal bankruptcy courts. As in the bankruptcy context, courts should be explicitly tasked to resolve disputes quickly, recognizing the strategic incentive to delay and thus dissipate the value of information.

Be under no illusion that this will be enough to correct the deep damage inflicted on our common truths over the past four years. It is a baby step. The refashioning of a shared ground of facts about what government is doing, and what the world demands of us, is a huge task—a foundation that needs reconstruction from the roots upward.

From the Symposium

Trump Vs. Democracy

No President in our history has presented such a threat to the Constitution and our democracy as this one. In this special issue, we asked 35 contributors to describe different aspects of the assault. We could have asked twice that number.

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Read more about CongressDemocracyDonald TrumpTrump Administration

Aziz Huq teaches law at the University of Chicago. His book How to Save a Constitutional Democracy (with Tom Ginsberg) will be published in paperback this fall.

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