Going Ballistic: What the Democrats’ ‘Subpoena Cannon’ Means for Trump

This article appears on Washington Examiner on December 10, 2018.
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With Democrats seizing the House and Republicans keeping the Senate, bills beyond the proverbial post‐​office‐​naming will be hard‐​pressed to make it out of both chambers in the next Congress. The threat President Trump faces from Democrats, then, isn’t legislative obstruction, but the ready‐​aim‐​fire of the opposition’s “subpoena cannon.”

That’s the term one senior Democratic source used last month in describing to Axios the opposition’s main anti‐​Trump weapon. Not all of the investigatory weapon’s payload will be fired at once, but the appetite for “resistance” is strong and will tie up significant White House and agency resources. (Full disclosure: My wife is a lawyer in the House general counsel’s office, but hasn’t participated in any discussions regarding the Democrats’ plans.)

In and of itself, there’s nothing wrong with spending time on congressional oversight. Indeed it’s a salutary check, flowing from the “legislative powers” that Article I grants Congress. The Framers assumed Congress would follow the lead of the British House of Commons in questioning executive action. James Wilson, a delegate to the Constitutional Convention and future Supreme Court justice, had written that members of parliament were considered “grand inquisitors of the realm. The proudest ministers of the proudest monarchs have trembled at their censures.” Accordingly, George Mason argued at the Convention that members of Congress “must meet frequently to inspect the Conduct of the public offices.”

When the first Congress convened in 1789, the House established a select committee to investigate the country’s accounts during the American Revolution, to clear Robert Morris, the superintendent of finances. In 1792, the House authorized a special committee to investigate the military defeat of General Arthur St. Clair. President George Washington ultimately agreed on rules of disclosure that formed the early basis of what we now know as “executive privilege.”

And so it went, with the Supreme Court eventually determining that it was constitutionally kosher for Congress to seek information when crafting or reviewing laws and overseeing federal programs — but that Congress must confine itself to “legislative purposes” and avoid purely private matters.

Congressional authority here ultimately boils down to the subpoena power: compelling the production of documents or appearance of witnesses, on pain of contempt and referral to federal prosecutors. In practice, few subpoenas actually issue — and even fewer are enforced through legal process — because committee staff and the target’s lawyers negotiate some sort of resolution that narrows the scope of information or questioning sought. For example, former FBI director James Comey just this week withdrew his motion to quash a House deposition subpoena because he “reached an acceptable accommodation” for voluntary testimony, with a public transcript to be made available within 24 hours.

Which brings us to the “cannon.” Axios counted “at least 85” potential House investigation goals. Those include 59 subpoena requests that Democrats on the Oversight Committee had already submitted (and Republicans had blocked), 18 more that came from a leaked GOP spreadsheet in September, and assorted others mentioned to the media by incoming Intelligence Committee Chairman Adam Schiff and incoming Appropriations Committee Chairwoman Nita Lowey.

Their subject matter ranges from President Trump’s business relationship with Russia to his negotiations with North Korea, the administration’s targeting of the press to the initiation of the Space Force. Many of the issues are interrelated, so we shouldn’t get fixated on the total number of subpoenas.

There’s some potentially explosive stuff, like Trump’s tax returns or his ties to the shady (and criminal) dealings of Michael Cohen, Paul Manafort, and others. Others relate to alleged governmental mismanagement, whether over the hurricane response in Puerto Rico and election security, or the firing of U.S. attorneys and the ambush of U.S. soldiers in Niger. Many involve potential ethical breaches, including the grant and revocation of security clearances, use of personal email for government work, and abuse of official travel, expense accounts, and other perks.

Policy disagreements motivate a large number, ranging from the travel ban and family‐​separation border policy, to the citizenship question on the Census and the dismissal of members of the EPA board of scientific counselors. Not all are front‐​page news, let alone presidency‐​jeopardizing, but they’re all embarrassing in some way, and of course designed to score political points. They’re also designed for maximum legal pressure, to force the courts to eventually rule on various defenses the administration might assert. 
The administration may first try to claim that certain subject matter is beyond the scope of a particular committee, or of the House itself. But the bulk of objections will come in the form of executive privilege, which takes two forms: deliberative‐​process and presidential‐​communications.

Both are designed to protect the effective operation of the executive branch, essentially arguing that presidential decision making would be hampered if aides, Cabinet members, and other officials refrained from saying or writing something to the president in fear that it would make them look bad if disclosed. The deliberative privilege comes from the old common‐​law royal privilege and covers a large swath of the executive branch. The communication privilege stems from the separation of powers and covers only the president and his immediate advisers, thus typically requiring a higher burden of proof to overcome.

In either case, the privilege belongs to the president, so officials only disclose what the president authorizes. For example, when Steve Bannon appeared before the House Intelligence Committee in February, on White House instruction he answered 25 pre‐​approved questions with a curt “no” and invoked executive privilege in refusing to answer the rest.

Presidents, Congresses, and courts have generally avoided open confrontations through compromise in view of previous practice. In modern times, presidents from Truman onwards have invoked various kinds of executive privilege relating to FBI and national‐​security investigations. President Eisenhower issued a sweeping command forbidding “the provision of any data about internal conversations, meetings, or written communication among staffers, with no exception to topics or people.” This directive was generally aimed at the Defense Department in response to the McCarthy hearing subpoenas relating to Army communications. President Reagan issued an order to executive‐​branch officials facing congressional queries potentially subject to executive privilege, directing them to “request the congressional body to hold its request in abeyance” until the president decides whether to invoke the privilege.

Only once has the Supreme Court ruled directly on executive privilege, in United States v. Nixon(1974), unanimously forcing President Nixon to produce Oval Office tapes as part of the Watergate investigation. The court held that there was no general privilege — except regarding military and diplomatic communications — but that particular invocations could be weighed against the public interest. Even military and diplomatic materials don’t enjoy absolute protection, but there the government can invoke an additional state‐​secrets privilege to exclude evidence at trial which, if disclosed, even under seal, would jeopardize national security. If push comes to shove and any of the subpoena cannon fodder results in the trial of particular officials with national‐​security responsibilities (for example, had Gen. Michael Flynn not taken a plea deal), this might be in play — but it’s not at issue right away.

President Clinton invoked executive privilege 14 times, including a failed attempt to stop his aides from being questioned as part of the Starr investigation. And recall that the Lewinsky part of that affair — and the impeachment that followed — stemmed from another unanimous Supreme Court ruling. While Clinton v. Jones (1997) didn’t involve an executive‐​privilege claim per se, it’s equally important to our current situation because the Court held that a sitting president wasn’t immune from civil suit for actions taken before taking office. Combining the Nixon and Jones cases suggests that federal prosecutors — including potentially those acting to enforce a House subpoena — would be able to compel Trump himself to testify under certain circumstances.

Most recently, President Obama asserted executive privilege over documents relating to the Justice Department’s Operation Fast and Furious gun‐​running scandal. The House Oversight Committee ended up holding Attorney General Eric Holder in contempt for refusing to disclose them, a vote later confirmed by the House as a whole — but ultimately without legal consequence because the (Obama‐​appointed) prosecutor chose not to pursue the matter.

So how would all of this apply to what we’re about to see? Here’s a quick sketch of the top 10 highest‐​profile issues that are likely to occupy House and administration (and social‐​media) lawyers in the coming months:

1. Trump‐​Russia relations, including preparations for his meeting with Vladimir Putin.

This mainly concerns diplomacy, a generally protected category under Nixon that’s a strong defense here unless some specific allegations can be brought against the president. It won’t be enough to show that certain Russians (or Putin himself) interfered in the 2016 election; Dems must show that there was a strong likelihood that President Trump or his advisers were colluding on criminal activity. So the Mueller report will likely make this area moot regardless.

2. Trump’s business dealings with foreign governments.

This too concerns diplomacy, but the question is whether the president’s businesses benefited incidentally from presidential actions or he was motivated by selfish financial reasons to take them. The Foreign Emoluments Clause was meant to prevent foreign influence on the president, but it’s unclear what an “emolument” is. For example, China granted 38 trademarks to Trump businesses in response to the president’s One‐​China policy — but all presidents since Nixon have hewed to this policy. While previous presidents have avoided the issue by placing their assets into blind trusts, Trump is using a revocable trust managed by his son and CFO, opening him up to arguments of abuse of diplomatic privilege.

3. Trump’s tax returns.

Related to the two previous items, Democrats want to know whether President Trump has unsavory financial entanglements with Russia or other undisclosed conflicts of interest. An obscure provision of the tax code written in the wake of the 1920s’ Teapot Dome scandal makes the tax returns of any filer available to Congress for any “legitimate purpose.” House leaders could also use such an inquiry to determine whether Trump evaded taxes and any number of potentially embarrassing revelations that could be hidden in any billionaire’s voluminous filing. This may end up being the biggest legal fight of them all.

4. Payments to Stormy Daniels.

Under Clinton, there’s no executive privilege here — but unless there’s some public‐​policy hook, there’s also no congressional jurisdiction. Presumably the allegation would be that such payments violated federal election law, particularly if paid by a third party (Michael Cohen), but that’s weak. And anyway, is there anything we don’t yet know about this?

5. Firing of James Comey.

President Trump may have already waived his communication privilege by commenting on the matter, but the president has a general power to remove executive officers. Moreover, this again is part of the Mueller investigation — it was its trigger — so the House would have to first wait for Mueller’s report and then argue that the investigation was insufficient.

6. Firing of U.S. attorneys.

The Democrats could be aiming for a repeat of what happened when President George W. Bush fired seven U.S. Attorneys in 2006. Bush invoked privilege to stop several aides from testifying, ultimately leading to Congress’s holding chief of staff Josh Bolten and White House counsel Harriet Miers in contempt. But it’s traditional for all U.S. Attorneys to be asked to resign at the start of a new administration, so it’s unclear if anything here was improper and courts are unlikely to allow a fishing expedition.

7. Discussion of classified information at Mar‐​a‐​Lago.

Whatever was said at Mar‐​a‐​Lago may have been overheard by club members who shouldn’t have heard it. This may be bad form, but courts are unlikely to be sympathetic to claims that President Trump illegally revealed classified information (that he’s authorized to unclassify). Moreover, these episodes would seem to be tailor‐​made for the communication privilege.

8. The travel ban.

The substance of the restriction on entry of certain nationals from largely Muslim‐​majority countries has been litigated and ultimately approved by the Supreme Court. Anything left to uncover — was it really motivated by anti‐​Muslim animus? — would seem to be privileged both with respect to presidential communications and national‐​security concerns. House Democrats may still want to give West Wingers heartburn, but it’s unlikely that you’ll see Stephen Miller appear before a congressional committee.

9. Family separation policy.

Executive privilege would clearly apply to discussions between White House and Homeland Security officials about how to reconcile statutes requiring release of detained minors with a desire to more strictly enforce the law against illegal entry of their parents. While Democrats may hate the policy — and the administration took a p.r. hit from it — it’s unclear there’s evidence of wrongdoing for Congress to investigate.

10. Transgender ban for the military.

This ban is tied up in court precisely over whether the proper procedures were followed in enacting it. As for the reasons behind it, that would be precisely the “candid advice” executive privilege most protects.

One issue of concern to Democrats has already reached the Supreme Court: the citizenship question to the 2020 Census. Did Commerce Secretary Wilbur Ross include it at the request of the Justice Department for better enforcement of the Voting Rights Act or at his own (or presidential) behest, to chill immigrant participation and potentially reduce the congressional apportionment of states like California and New York. The question has been asked in the past — though not for more than half a century — but a federal judge in New York is about to rule on whether the motivation for it now is improper. And the high court will hear argument in February about whether Ross can be forced to testify.

In sum, the subpoena cannon will produce scattershot results, hitting some targets — with the potential for collateral damage too — but missing the mark a fair bit. As far as Nancy Pelosi is concerned, that might be just fine because, in many cases, the process (and attendant media controversy) is the punishment she and her colleagues have been waiting to inflict. And news reports suggest that the administration is nowhere near prepared for the onslaught that awaits it. The White House counsel’s office in particular hasn’t been backfilling for natural attrition, which picked up with Don McGahn’s departure.

Then again, all this hubbub may well work to Trump’s benefit as he looks forward to a 2020 campaign where he can contrast do‐​nothing House Democrats looking to persecute him with confirm‐​everyone Senate Republicans. Suffice it to say, much stranger things have happened.

Ilya Shapiro

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute, editor‐​in‐​chief of the Cato Supreme Court Review, and a contributor to the Washington Examiner ’s Beltway Confidential blog.