The Great Divide: Trump, House Republicans, and the Congressional subpoenas

In a thread yesterday, I argued that Jim Jordan and other Republicans in the House are probably NOT in agreement with the White House’s position on the Congressional subpoenas. (Trump has said: “We’re fighting all the subpoenas.”) 1/47

Perhaps you are skeptical. If so, consider the following evidence. 2/47

Let us begin with these pages from the Congressional Record, “CONGRESSIONAL SUBPOENA COMPLIANCE AND ENFORCEMENT

ACT OF 2017,” dated 23 Oct 2017 — that is, six months after Trump’s inauguration. 3/47 http://bit.ly/2vxKyl7

The bill’s principal sponsor was Rep. Darrell Issa (who was defeated in the 2018 midterms and is no longer in the House).

Here is a roster of the HJC members in that Congress (115th): 4/47

The bill was passed out of the House Judiciary Committee by a UNANIMOUS vote.

That bipartisan unanimity continued when the bill was taken up on the floor of the House.

There wasn’t even a debate. It was a love fest. 5/47

Republicans and Democrats who advocated for the bill on the floor said they could and often did vehemently disagree about investigative priorities,

but were UNANIMOUS in believing that an Administration — ANY Administration — must be responsive to valid Congressional subpoenas. 6/47

And there was unanimous agreement in the House that Congress didn’t need a statute to assert its subpoena powers, since these had been well established for over 200 hundred years and had been strongly upheld in recent court rulings. 7/47

Instead, the bill, if enacted, would help to EXPEDITE the civil enforcement of Congress’s subpoena powers in the courts. 8/47

Some of the remarks made by Republican and Democratic leaders that day are remarkable for their bipartisanship. Here are some of them: 9/47

MR. ISSA: “Congress has, and has always had, and has been supported all the way by the Supreme Court, the need to do oversight. With that, we issued subpoenas. The enforcement of those subpoenas has come into conflict over the last several years, both during Mr. Conyers’ chairmanship when he subpoenaed Harriet Miers to appear, and during my time when I subpoenaed records by the Department of Justice. In both cases, the administrations decided that it was appropriate to question the standing and to delay. Those delays were unfair to the body and unfair to the American people because it denied them in any reasonable period of time the effect of factfinding. This is not a partisan issue.”

MR. ISSA: “Yet this very question that was not once, but twice, defended by two different administrations of two different parties calls into question the ability in a timely fashion for Congress, the House or the Senate, to receive the information or the appearance of a witness it needs.”

MR. NADLER: “Mr. Speaker, I rise in strong support of H.R. 4010, the Congressional Subpoena Compliance and Enforcement Act of 2017. My support of this legislation is tied to my view of our committee’s responsibility to conduct oversight of the executive branch. … Congress does not require a statute in order to enforce its subpoenas in Federal court. We know this, of course, because in 2008, the House Judiciary Committee went to court to defend that authority. Ruling in favor of the committee, the court held that the Bush administration’s claim of absolute immunity from our process ‘is entirely unsupported by existing case law.’”

MR. ISSA: “Mr. Speaker, I want to further echo the gentleman from New York’s comments. Mr. NADLER is right. We will often, almost unanimously, find a way to disagree on what to look into at various times as a body. But whether it is a Democratic chairman or Republican chairman looking into something, whether it is a Republican administration or a Democratic administration, it is clear that we must, in fact, if a subpoena is issued, be able to enforce it in a timely fashion.”

MR. ISSA: “I might note, the interesting history of the two cases Mr. NADLER and I are talking about is one in which a Democratic chairman enforced a subpoena, but had to go to a recently appointed Republican judge, who, in a fairly reasonable period of time, reached the conclusion that: one, the committee had standing, and the House had standing and; two, that it was really without merit for the administration — then the Bush administration — to claim this immunity, this newfound immunity.”

MR. ISSA: Similarly, in a slightly longer period of time, but coincidentally, a Republican chairman went before a freshly minted appointee of the very President who was refusing to comply, and she reached the decision that the documents were unfairly withheld and ordered them released. So I think the interesting thing to all of us is the independence of the judiciary has worked not once but twice.”

MR. ISSA: “Mr. NADLER and I have served together as chairman and ranking member for a number of years. We share something which is the many years that we have been here in Congress, we have seen the frustration of both parties trying to do their job against another branch that often takes advantage of the natural rivalry between two different parties. This legislation is designed to reduce that, to reduce the ability for the executive branch or other outside groups to, if you will, take advantage of the natural division between the two of us. After so many years of being here, the one thing I have learned is that to diminish the House’s and the Senate’s ability to represent the American people is to diminish our Republic.”

The bill was then put to a vote on the floor of the House, and was passed UNANIMOUSLY. 10/47

I do not know why the bill was not subsequently taken up and passed by the Senate, but it doesn’t really matter, because the DC District Court and the DC Court of Appeals have ruled in two important cases 11/47

that even a single committee of either body has standing to sue for subpoena compliance in federal court. 12/47

The two court cases (to which Issa and Nadler referred) are Committee on the Judiciary v. Miers, and Committee on Oversight & Government Reform v. Holder. 13/47

Eventually, after the 2016 elections, Committee on Oversight & Government Reform v. Holder became Committee on Oversight and Government Reform v. Sessions.

That litigation was finally resolved when then-Attorney General Jeff Sessions (in the NEW Trump Administration) 14/47

turned over most of the records that the House Judiciary in the PREVIOUS Congress had requested (in the interest, Sessions said, of “transparency and the rule of law”). 15/47 http://bit.ly/2PytZ1m

You can read about the critical MIers and Holder precedents here (CRS Report: “Congress’s Contempt Power and the Enforcement of Congressional Subpoenas,” dated 12 May 2017. 16/47 http://tinyurl.com/yd3tnmv8

(Search for the sections “The Bolten and Miers Contempt: Committee on the Judiciary v. Miers,” beginning at p. 39; and “The Holder Contempt,” beginning at p. 44.) 17/47

For our present purposes, the two main points to note are these: (1) the cases are dispositive: there is no doubt that the courts will eventually rule in favor of civil enforcement of subpoenas by House committees; 18/47

(2) the court cases can drag on — and typically do drag on — for years. The House bill, the “CONGRESSIONAL SUBPOENA COMPLIANCE AND ENFORCEMENT ACT OF 2017,” was a response to this problem. The bill was intended to expedite litigation. 19/47

Note that (1) and (2) have very different consequences and entail very different calculations for the parties involved in the present controversies. 20/47

As for Trump: because the requested records and testimonies, when they are obtained, will undoubtedly be very damaging, it is in Trump’s interest to resist the subpoenas as hard and as long as he can — hopefully even beyond the 2020 elections. 21/47

But the calculations are very different for Barr, and also for House Republicans. 22/47

Barr has already soiled himself badly over his handling of the Mueller Report. His actions have also created dissension inside the DOJ. 23/47

Because courts have clearly upheld Congress’s subpoena power, Barr will look even more like an incompetent toady, and bring even more discredit on the Department, if he goes along with Trump and supports continued resistance to the subpoenas. 24/47

The problem is even more acute for House Republicans. It isn’t just that they will look like hypocrites if they support Trump’s resistance to the subpoenas. That is the least of it. The biggest problem is that this clearly is a matter of fundamental principle for them. 25/47

(They are members of Congress, after all, and jealous of its constitutional responsibilities and prerogatives.) 26/47

Many have missed this point because they have focused on Republican opposition to the Mueller investigation.

It is true that many Republicans have criticized the investigation on the merits, 27/47

but Republicans have not questioned either the Department’s authority to conduct such investigations OR Congressional oversight of such investigations. 28/47

(Indeed, Republicans like Nunes, Goodlatte, Ratcliffe, and Collins believe the Trump-Russian investigations were “inadequately predicated” at their origins, and want to investigate those origins, but 29/47

are in the peculiar position of needing to invoke Congress’s oversight authority in order to do that, because the Trump White House has stonewalled their efforts. (This might very well change now that Barr is AG.)) 30/47

But beyond the specifics, Republicans will never surrender Congress’s oversight and subpoena powers to Trump, because they understand very clearly the danger that the Administration’s resistance poses to the whole Constitutional scheme. 31/47

That is why I must demur from @KyleDCheney’s view (which also seems to be the prevailing view) that Jim Jordan’s letter the other day shows that the White House and House Republicans are 32/47

colluding to defeat the subpoenas the House committees are threatening to issue against non-complying Administration officials. 33/47

I think it is much more likely, as a Fox News story has it, that Jordan really is trying to get the Administration to comply with the law here. But this is going to be difficult for House Republicans to pull off, 34/47

given that they will have to manage a psychologically impaired, morbidly sensitive narcissistic man-baby president. They are going to have to do their best to mollify him, just as Rosenstein had to mollify him in order to protect the Mueller investigation. 35/47

Jordan seemed to be doing just that in his letter to Cipollone on Friday, in which he requested Kline to agree to a voluntary transcribed interview 36/47

in order to “de-escalate” Cummings’s “orchestrated interbranch confrontation.” — thereby seeming to place the blame on Cummings. 37/47 http://tinyurl.com/y6bsswpf

But this is, I suspect, nothing more than an effort to disguise the fact that on matters of substance, Jordan is going to end up siding with Cummings rather than the Administration. 38/47

As I’ve previously noted, a source close to Jordan told Fox News on Friday that the letter was sent “in an attempt to get Kline’s testimony, not to head off contempt, but to de-escalate, *respect the process, and get information*.” 39/47 https://fxn.ws/2PwvYU2

If this means anything substantive at all, it must include information about decision-making concerning specific security clearances.) 40/47

The sticking point is not whether Kline can have an attorney with him in the room when he testifies.

I am a little surprised that Cummings has stipulated this (though as chairman he undoubtedly has the right to do so), 41/47

because when I read the House Intel committee hearings on Lisa Page and Peter Strzok, I noticed that they were allowed to have FBI and personal counsel with them. 42/47

The real sticking point is whether Kline will be allowed to confine his testimony to personnel practices and policies, when what the Committee wants to know is how and why Kushner and others were issued their security clearances. 43/47

The Miers and Holder precedents in the DC District and Appeals courts (see above) clearly hold that Congressional committees have subpoena power to compel records and testimony over such matters. 44/47

Trump may be perfectly happy to precipitate a constitutional crisis and force the issue to court, but House Republicans are not going to go there with him. 45/47

This is turning into a watershed issue for Trump. He has suffered from Republican defections in the House and Senate over other issues, but they were minority defections, whereas this portends a defection by a majority of Republicans in the House — maybe even by all of them. 46/47

My guess is that negotiations and strategizing are going on (very much behind the scenes) between House Republicans and Administration officials about how to handle this explosive matter, which really boils down to the question of how to handle “Deranged Donald.” 47/47