U.S. president vs. congressional investigators: How the battle of the branches could play out

Matthew Levendusky of the School of Arts and Sciences and Tobias Barrington Wolff of the Law School discuss the potential political, legal, and constitutional implications.

U.S. Capitol

Since Democrats took control of the United States House of Representatives in January, various committees have launched multiple inquiries into President Trump’s campaign and his administration. In April, after Special Counsel Robert Mueller delivered his report on Russian interference in the 2016 campaign, Trump declared his administration would refuse to comply with any House investigation, including subpoenaed records and testimony. 

Trump sued his own accounting firm and the House Oversight and Reform Committee, asking a federal judge to quash a subpoena for his company’s financial records and asserting that Congress has no right to the information. U.S. District Judge Amit Mehta rejected that argument; Trump has appealed.  

He’s also tried to keep his former White House counsel Donald McGahn from testifying about what was going on behind the scenes as the investigation into his campaign’s dealings with Russia got started. 

This week, Mueller made his first public statement on the report, pointedly saying that government policy meant charging the president with obstruction of justice was “not an option.” His words have further ramped up calls from some for the House to begin impeachment proceedings. 

Penn Today spoke with political science professor Matthew Levendusky and Penn Law professor Tobias Barrington Wolff about what’s at stake and how it might be resolved. 


What are the fundamental constitutional issues at work here?

Wolff: This is a fight that involves all three branches of the federal government. Congress, exercising the legislative power under Article I of the Constitution, is performing an oversight function. It has long been recognized that Congress has the power to issue subpoenas in order to gather information to monitor the executive branch and determine whether legislation or even impeachment is necessary to control abuses of power. The current occupant of the presidency, exercising the executive power under Article II of the Constitution, claims that his office has certain privileges and prerogatives that cannot be intruded upon by Congress, including, he claims, the absolute right to prevent current or former presidential advisors from testifying in order to preserve his ability to get confidential and candid input from those advisors. 

The federal courts, exercising the judicial power under Article III, have the ability to determine whether a congressional subpoena is valid and, if so, to order the executive branch to obey the subpoena.

Could you put the current situation into context, in terms of other battles between the branches, especially where Congress is involved? What are the risks to both Congress and the president, regardless of party, of pushing this fight into the courts?

Levendusky: These are really political battles with a legal foundation. Much of this is about the 2020 election and framing the debate between the parties and more generally about the power of Congress vis-à-vis the president. The courts technically have the power to force someone to turn over documents or testify, but because the courts are a slow-moving vehicle the issue is often moot by the time the courts issue a final ruling. 

For example, in 2011, the House Committee on Government Oversight and Reform issued subpoenas to the Bureau of Alcohol, Tobacco, Firearms, and Explosives to obtain materials related to the ‘Operation Fast and Furious’ program. In 2012, President Obama invoked executive privilege to deny the committee access to some documents, and then the House voted to hold Attorney General Eric Holder in contempt. It wasn’t until 2016 that a federal judge effectively rejected Obama’s use of executive privilege in this case, so the point was largely moot by then. One could easily imagine that the process would be similarly drawn out now. 

That’s why this is a political, not a legal, battle—this is about Democrats trying to expose what they see as abuses by the Trump administration so that voters will want him gone in 2020.

Do you think this comes off as just squabbling to the “average” voter?

Levendusky: I imagine that most voters know little—and care less—about these sorts of issues. These issues of inter-branch power are complex and inside-baseball and tend to matter most to those who are deeply invested in the process and are typically the most partisan. Most voters see this sort of feuding and wonder why Congress isn’t spending time trying to fix health care, tackle climate change, and so forth.

If the oversight committees were to just drop their end of the rope and decline to push the president on this, would that weaken the legislative branch in future clashes like this?

Levendusky: This is a case where the party that holds the presidency wants to weaken Congress’ power, and the other party wants to strengthen Congress’ hand. Under Obama, many Republicans called to re-invigorate Congress and expand its power to check the executive. Under Trump, they’ve been far less excited about doing that. Over time, the power of the presidency has expanded, and the power of Congress has waned. Until Congress decides—on a bipartisan basis—that it should reassert itself as the dominant branch, as the founders intended, that won’t change.

Wolff: This is a defining moment for the oversight responsibilities of the Congress. The man who currently occupies the presidency is openly corrupt, contemptuous of the rule of law, and has been found by the special counsel to have engaged in acts that satisfy the elements of criminal obstruction of justice. To fail to use the full powers of Congress to develop the facts and hold the man accountable would be to abdicate any real commitment to the idea that no person, including a sitting president, is above the law.

What are the stakes here? What happens when the checks and balances don't work, so to speak?

Wolff: I suspect one of the reasons that the House of Representatives has gone to federal court to enforce their subpoenas is to place the authority of two branches of government—the legislative and the judicial—behind their demand for information. If a sitting president were to defy a final order of a federal court that requires him to obey a subpoena issued by a house of Congress, that would be a flagrant violation of the rule of law. 

A president, like anyone, can take an appeal from a district court decision that he disagrees with, but, once all appeals have been exhausted and the final word of the federal courts is that the president must obey a subpoena, that command is binding. A refusal to abide by a final federal court order would be an impeachable offense.

So, the stakes are very high. 

How strong is Congress' power to oversee the executive branch, in your opinion? 

Wolff: Congress has limited tools available to it, but those tools are powerful if used aggressively. Congress can issue subpoenas to demand information from executive branch officials about their actions and seek the assistance of the federal courts in enforcing those subpoenas. Congress can, in extraordinary cases, withhold funding from an office of the executive branch that it believes is abusing the public trust. The appropriations power—the power to raise and allocate money—lies with Congress, and that is a powerful tool if Congress chooses to use it. And, in the most extraordinary cases, Congress can open impeachment inquiries. 

Even when impeachment does not result in removal of an executive or judicial officer—and, of course, a sitting president has never been removed by conviction following impeachment—the impeachment process raises the question of abuse of the public trust in a way that focuses the attention of the nation.

So far, the Trump administration's argument that it doesn't have to comply with the House subpoenas has been rebuffed in court. Given the makeup of other swaths of the federal judiciary, do you expect that to change? Is the judicial branch going to want to stay out of this?

Wolff: The district court rulings affirming the enforceability of these subpoenas have been well-reasoned and based on clearly established principles. The arguments that the current occupant of the presidency and his lawyers have been making are radical. I do not expect federal appeals courts or the Supreme Court to reverse the district courts. The Supreme Court unanimously held in U.S. v. Nixon that a sitting president must respond to a valid subpoena. That case involved a subpoena issued in a criminal case, rather than by Congress, but there is no reason for the result to be different. 

As Special Counsel Mueller reminded us, the position of the Department of Justice is that only Congress can hold a sitting president accountable for committing crimes.

Matthew Levendusky is the Penny and Robert A. Fox Director of the Fels Institute of Government and professor of political science in the School of Arts and Sciences at the University of Pennsylvania. 

Tobias Barrington Wolff is the Jefferson B. Fordham Professor of Law and a deputy dean at the University of Pennsylvania Law School.