With Barr a no-show, White House and Congress move further apart

Attorney General William Barr’s refusal to appear at a hearing convened by House Judiciary Committee Democrats on Thursday, after tense sparring with Democrats on the Senate Judiciary Committee on Wednesday, escalated an extraordinary personal dispute between a key member of President Donald Trump’s Cabinet and opposition party officials.

The dispute is emblematic of the administration’s apparent policy of maximum resistance to Democratic-led congressional oversight of executive branch actions. The president, Mr. Barr, and other administration officials are engaging in constitutional hardball with another branch of government, the legislature.

President Trump “is trying to render Congress inert as a separate and coequal branch of government,” charged Rep. Jerry Nadler, D-N.Y., chairman of the House Judiciary Committee. “If we don’t stand up to him together today, we risk forever losing the power to stand up to any president in the future.”

Where the high-stakes standoff may lead is unclear. The Founding Fathers envisioned these branches in competition, with shared powers to check and balance one another. In terms of congressional oversight, over the years Congress and the White House have worked out norms and conventions to guide the resolution of disputes.

But in the modern era, the pull of partisanship has often superseded that sense of interbranch competition. “The different branches pull these elected officials apart and partisanship can pull them back together,” says James Curry, a political scientist at the University of Utah. “These two forces are constantly in collision with each other.”  

In the short term, Mr. Trump and the presidency might benefit politically from blowing up these norms and defying congressional Democrats. In the long term, the executive branch risks court decisions that could actually strengthen congressional prerogatives in this area – for good.

If both sides refuse to back down, it will be the third branch of government – the judiciary – that gets to decide “who has to comply in what way in these interbranch relations,” says Professor Curry.

Mr. Barr’s refusal to appear at Thursday’s House hearing is just one aspect of the administration’s battle against oversight, and far from the most unusual.

More serious might be the administration’s stonewalling of House Democratic subpoenas for multiple investigations into White House security clearance decisions, presidential finances, and other sensitive areas.

It’s still possible that all these matters will be successfully negotiated by the contending parties, one at a time. That’s the way most such disputes have been handled by past administrations. Typically, neither branch wants to push the other too far, given what is at stake.

A White House memo written during the Reagan administration in 1982 laid out an approach to such accommodation that subsequent presidencies have mostly followed. The memo says that while the executive branch may occasionally want to withhold information from Congress for confidentiality purposes, such decisions should be “rare.”

But the Trump administration appears to have a different plan for its approach to congressional relations. “We’re fighting all the subpoenas,” the president said last week. Referring to Democrats in Congress, he added, “These aren’t, like, impartial people.”

Mr. Trump, three of his children, and his company have also filed lawsuits against two financial institutions that have been subpoenaed by House committees in an attempt to obtain Trump financial records.

The lawsuit states that the subpoenas have no legitimate purpose and are meant solely to “harass” the president.

Mr. Trump’s supporters and critics alike say he has a gift for finding the weaknesses in his opposition. His defiance of Congress in recent weeks may fit this pattern. Past presidents didn’t dare try such widespread and open noncooperation for fear of political and legal ramifications. What Mr. Trump may have found is a Congress whose investigatory powers have been in decline for some time.

Sure, committee chairmen can issue subpoenas to the executive branch, but who will enforce them? That power is supposed to reside in the executive branch’s Department of Justice. Members often talk about jailing reluctant witnesses in the basement of the Capitol but that does not seem to be a realistic threat. 

What happened to coequal branches?

Meanwhile, the branches no longer seem exactly coequal. Congress is beset by gridlock and divided control; the White House operates as a unified body, which makes it easier to move.

“We have indubitably, over the last 120 years, seen a significant amount of power shift over to the executive branch, frequently at the expense of Congress,” says Kevin Kosar, a former Congressional Research Service analyst who is now vice president of policy at the R Street Institute. “Being really forceful with the executive branch requires unity,” he adds. “And that’s just harder [for Congress] to forge.”

Partisanship has made this worse. The Founding Fathers expected members of Congress to identify as members of the First Branch, in competition with the executive. But the rise of parties and today’s polarized environment mean members often put party before institutional power. 

That weakens Congress even more. In that sense Trump is kicking open an already weakened door.

“Just as the case has been with so many other things we’ve seen in the past couple years, there are a lot of norms and maybe even constitutional provisions, gray areas and stuff, that nobody has been willing to challenge. When somebody does, well, what do you do about it?” says David Barker, director of the Center for Congressional and Presidential Studies at American University.

Which branch is acting unconstitutionally?

It’s possible the courts may find the Trump administration’s behavior legal. David Rivkin Jr., a Washington attorney who served in the White House and Department of Justice in the Reagan and George H.W. Bush administrations, believes that Chairman Nadler is overreaching with his investigations.

Congress has no mandate to conduct investigations for law enforcement or counterterrorism purposes, Mr. Rivkin says in an email. “In this confrontation, it is the House that is acting unconstitutionally,” he says.

But other legal scholars differ. Litigation may ultimately be decided based on whether the executive branch made a good-faith effort to accommodate constitutional congressional oversight rights. If the administration has already disclosed information Congress is now seeking via subpoena, or allowed certain officials to freely testify in other settings, the executive privilege of confidentiality may be in question. 

Congress does have a few powerful tools at its disposal besides litigation. There is always the power of the purse – House Democrats could refuse to provide funds for particular administration priorities or could use the budget as a lever in subpoena negotiations.

But time might favor the Trump administration. By fighting Democrats case by case and forcing them to try and obtain testimony and documents in dribs and drabs, potentially damaging House investigations can be delayed or derailed. The question of whether Mr. Trump can indeed fight “all the subpoenas” might not actually be decided until the 2020 presidential election has come and gone.

Still, it’s important to push the subpoena issue, says Mr. Kosar, even if it is a lengthy quest and the Trump administration spends the next two years refusing to cooperate with congressional overseers. 

“I’m confident the Republic will stand. It’s not going to collapse into a parliamentary quasi-autocracy,” he says. But the refusal to respond to subpoenas “absolutely is concerning and we should call it out. Otherwise people are just going to keep doing it.”