Once again, it is reported that putative president Trump has “ordered” certain citizens to either limit or completely refuse to respond to questions from a duly authorized congressional investigating committee looking into, among other things, Trump’s conduct of the office of president and probable instances of illegality as documented in the recent report of the Office of the Special Prosecutor (the Mueller Report). This is not the first time, not is it likely to be the last, as Trump desperately employs every tactic possible to prevent a true accounting of his crimes.
Rep. Jerry Nadler, the chair of the House Judiciary Committee, reportedly has said that Trump’s position is a “shocking and dangerous assertion” and that
“The President would have us believe that he can willfully engage in criminal activity and prevent witnesses from testifying before Congress – even if they did not actually work for him or his administration.”
Yes, that is exactly what Trump is doing. Trump appears to believe he’s still running a reality TV show.
On the face of it, Trump’s demands for omertà, the mob vow of silence regarding talking to law enforcement, are just another example of multiple instances of his criminal obstruction of justice. It appears that his lawyers have advised him that this strategy can be based on the principle of “executive privilege” that was analyzed and interpreted narrowly in the seminal case of United States v. Nixon, 418 U.S. 683 (1974), in which President Nixon tried to defeat a congressional subpoena for the Watergate tapes. Trump’s position has more kinship with the Mafia version of omertà than to any legally sound claim of executive immunity from congressional oversight.
For one thing, in the current situation, Corey Lewandowski, the target of one subpoena, never worked in the White House. At a minimum, that reality makes the extension of executive privilege to Lewandowski’s actions and knowledge a bridge too far. As for testimony by former White House aides Rob Porter and Rick Dearborn, Trump has asserted “absolute immunity” to their responding to any and all questions about their time in the White House.
This seems on its face to be a losing position. United States v. Nixon pretty well disposed of the idea that executive privilege was “absolute” and that a president could prevent the production of evidence by blanket assertions of privilege. At best Trump may buy some time with this stalling tactic but is almost certain to lose in the courts, assuming, of course, that the House Judiciary Committee does not simply accept this rejection of American constitutional principle.
Trump has not thus far asserted any other basis for preventing the testimony of former aides. He has not, for example, claimed that they signed non-disclosure agreements. Even if they had done so, I suggest any such agreements would be void on their face as against public policy. Trump may not have figured it out yet, but he is neither a king nor a CEO of the United States. As putative president, he is subject to the constraints implied by the separation of powers that was created by the Constitution. He cannot, therefore, expect to shield the public’s business from scrutiny by demanding that public servants who happen to have worked in the White House refuse to testify in response to oversight by congressional committees.
Other than executive privilege or private agreements, no other basis appears possible to permit the president to order private citizens to refuse subpoenas properly issued by congressional committees. What then should happen if, as expected, Lewandowski, Porter and Dearborn elect to tow the Trump line?
I suggest that the next steps should be to hold the three witnesses in contempt of Congress. If, as I believe to be true, their arrest is provided for in the criminal code, they should be arrested. I understand they are in a difficult place, caught between two warring forces in a contest for the preservation of democracy in America. They are, however, making a choice in following Trump’s demands. They could choose to do otherwise and act as good citizens providing the knowledge they have in response to questions from the investigating committees. If, as appears to be the case, they elect omertà, they should face the consequences of their choice.
A contempt of Congress citation should also be issued against the president. Likely he cannot be arrested while holding office, but his improper use of executive privilege to shield his administration and himself personally from congressional oversight should be met with every indicia of formal legal force that the circumstances will support and let the courts sort it out.
We have reached the point of no return regarding Trump’s abuse of his office. The congressional staff memo about which I posted yesterday clearly supports impeachment for the obstructive conduct of this president. No reason appears for treating him with the proverbial kid gloves. He is itching for a fight and the House investigative committees should give it to him. Nothing is to be gained by timidity in the face of Trump’s continued rejection of democratic and legal norms and constraints on his behavior. His legal position is untenable. The time to act aggressively against his administration has arrived.