House Democrats hit roadblocks investigating President Donald Trump
Published 7:00 AM EDT Sep 21, 2019
WASHINGTON – When House Democrats embarked on wide-ranging probes of President Donald Trump’s administration, they asked for an avalanche of information and got almost nothing.
Lawmakers demanded copies of Trump’s tax returns, and his administration refused to provide them. When they ordered his bankers and accountants to turn over his financial records, Trump sued, at least temporarily blocking their demand.
When lawmakers subpoenaed Trump’s aides in person, several refused to answer questions. Others refused to show up.
And last week, House Democrats got a lesson in what can happen when a witness actually appears: During more than five hours of questioning, Trump’s former campaign chairman, Corey Lewandowski, refused to answer so many questions that a committee struggled even to get him to acknowledge things he said to special counsel Robert Mueller, on television and in his own book. Instead, he traded insults with lawmakers and used a break in the proceedings to announce a potential campaign for the U.S. Senate.
Democrats who regained control this year of the House of Representatives with high hopes of investigating Trump’s administration have found themselves – at least for now – blocked at almost every turn. Their only recourse has been to go to court, a process that hasn’t produced much.
“The founders expected members of Congress to be jealous guardians of the prerogatives of First Branch, which enjoys vast investigative powers, control over federal spending, the ability to establish and abolish federal offices and the power to impeach federal officers,” said Christopher Armstrong, a lawyer who led investigations for the Senate Finance Committee and is in private practice at Holland & Knight. “Instead, they often just go on cable TV.”
Democrats are considering whether they should introduce articles of impeachment against Trump over what they described as obstruction of justice, violations of campaign-finance laws for paying off a porn star before the election, profiting from his namesake business while in office and falling under the influence of foreign powers. Trump chalked the inquiries up to harassment and said he will fight every request for information.
The grinding pace of the investigation has frustrated some lawmakers. Senior Democrats in the House said they’re working methodically and need to wait for a handful of courts to decide whether the White House can block them from obtaining records and testimony. They plan more hearings, including one scheduled this week on whether Trump’s businesses profit from his presidency.
Even the spectacle of Lewandowski’s testimony might serve a purpose, they said.
“Was this hearing a hot mess? Sure,” said Rep. Mary Gay Scanlon, D-Pa., vice chair of the Judiciary Committee. “But that’s kind of the point. It was a lack of point for the Constitution, it was continued obstruction and it was an administration and cronies that are just out for themselves.”
A succession of stone walls
More than nine months after Democrats took power in the House and opened their investigations, their battle with Trump is more like trench warfare than a blitzkrieg as the two sides scrap over every document, each witness and even each question. A handful of the disputes landed in federal court.
The Judiciary Committee is investigating possible obstruction of justice, calling former Trump aides from the campaign and administration to ask about his efforts to limit Mueller’s inquiry into Russian interference in the 2016 election. Witnesses such as former White House counsel Don McGahn refused to testify at the direction of White House counsel Pat Cipollone, who invoked executive privilege and absolute immunity to keep presidential comments confidential. The committee asked a U.S. district court to enforce the McGahn subpoena.
The Oversight and Reform Committee is investigating whether Trump violates the Constitution by profiting from his private business while in office, and it sought access to some of his financial records. A federal judge ordered his accountants to turn over the records, but Trump appealed.
The Financial Services and Intelligence Committees subpoenaed financial records from Trump’s lenders, Deutsche Bank and Capital One. A judge said those companies should turn over those records, but the request is on hold while an appeals court in New York considers the case.
Democrats have found few alternatives to lawsuits. They’ve tried holding officials in contempt, most recently when investigating the administration’s unsuccessful efforts to add a citizenship question to the 2020 census.
The House voted July 17 to hold Attorney General William Barr and Commerce Secretary Wilbur Ross in contempt for defying the subpoenas. The Justice Department, which would be in charge of prosecuting for contempt and is run by Barr, said the officials had not committed a crime and wouldn’t be charged.
Patrick Cotter, a former federal prosecutor who followed the Mueller investigation while in private practice in Chicago, said a judge in a criminal case would have swiftly “shut such nonsense down” if subpoenas went unanswered or witnesses refused to testify.
“But, it appears, Congress can’t or won’t act like a court and enforce its subpoenas or find people who are explicitly, indeed gleefully, in contempt to be, in point of law, in contempt,” Cotter said. “To a simple criminal law lawyer like me, it doesn’t look like any court I have ever seen.”
A partisan split
Partisanship helps explain why Democrats have been stymied.
When Congress considered impeaching President Richard Nixon over the Watergate scandal, it was a bipartisan undertaking. The House investigations of Trump are decidedly not.
“We feel strongly about our position, about the position of Article I, the legislative branch having the right to have oversight over every other branch of government,” House Speaker Nancy Pelosi, D-Calif., said July 26. “But that’s important because it means we can get the information to show the American people what the obstruction of justice was further all about.”
Republicans in the House accused Democrats of pursuing pointless investigations for political gain. Mueller’s report did not establish a conspiracy between Trump’s campaign and the Russian operatives who sought to sway the 2016 election in his favor. Although it documented 10 episodes of potential obstruction by Trump, the special counsel never reached a conclusion about whether his conduct amounted to a crime.
Rep. Doug Collins of Georgia, the top Republican on the Judiciary Committee, predicted that the courts would rule against the panel for the McGahn subpoena and that the decision would weaken Congress’s power. Collins said the panel has no right to grand jury material behind the Mueller report, which the panel demanded in federal court.
“Chairman (Jerry) Nadler’s legal action here is sure to fail, weakening Congress’s ability to conduct oversight now and in the future,” Collins said of the grand jury lawsuit.
‘You are aiding him in that obstruction’
Democrats haven’t fared much better by summoning witnesses.
Last week, two of the three men they subpoenaed to testify about the president’s effort to limit the scope of Mueller’s investigation refused to show up, at the White House’s direction. The one who did, Lewandowski, sat in the witness chair for five hours but answered so few questions that lawmakers gathered little, if any, new information.
Lewandowski refused to testify about his conversations with the president beyond what was in the Mueller report, and he stalled after almost every question to consult the report while refusing the read aloud the passages about him.
“It’s going to be a grueling and difficult process,” said Rep. David Cicilline, D-R.I., a committee member who proposed holding Lewandowski in contempt. “We have a president of the United States who is engaging in an ongoing cover-up and obstruction of justice and obstruction of Congress. And it is going to require us to claw our way to the truth.”
Rep. Nadler, D.N.Y., warned Lewandowski that his refusal to answer could be considered obstruction.
“The president is intent on obstructing our legitimate oversight,” Nadler said. “You are aiding him in that obstruction, and I will remind you that Article 3 of the impeachment against President Nixon was based on obstruction of Congress.”
Lawmakers wanted to hear from Lewandowski because he told Mueller’s investigators that Trump asked him to deliver a message to Jeff Sessions, the attorney general, instructing him to effectively end the investigation that was clouding the administration. Trump said authorities should investigate Russian interference in future elections, not the one that put him in office.
Lewandowski never gave Trump’s message to Sessions.
“I didn’t think the president asked me to do anything illegal,” he said.
‘There has to be consequences’
Lewandowski’s recalcitrance spurred committee members to consider reviving inherent contempt, a little-used power to impose fines or even jail time.
“There has to be consequences for the way he conducted himself and the absurd privileges he was standing behind,” said Rep. Eric Swalwell, D-Calif., a member of the Judiciary Committee and a former prosecutor. “I think empty chairs or empty mouths shouldn’t mean empty pockets.”
The Supreme Court recognized inherent contempt in 1821, but Congress hasn’t used it since 1935.
“Speaking personally, I have felt that we are going to have to use the inherent powers of contempt that Congress has against a completely lawless administration,” said Rep. Jamie Raskin, D-Md., a Judiciary Committee member who was a professor of constitutional law for 25 years. “It would require us to dust off the old books. But I can’t think of a situation that calls for it any more than this one.”