Trump actions inviting constitutional crisis ahead

Jules witcover

WASHINGTON — President Trump’s decision to claim executive privilege to shield himself from further investigation into his personal and business affairs assures a critical clash over the Constitution’s separation of powers among the three governing branches.

He has directed present and former Trump administration officials to ignore subpoenas for testimony before Democratic-controlled House committees related to the special counsel’s investigations, inviting clear contempt of Congress charges. Included is the decision of Attorney General William Barr to reject a similar subpoena from the House Judiciary Committee, which has held him in that contempt, subject to a full House vote.

Also, House Way and Means Committee Chairman Richard Neal of Massachusetts has called on the Internal Revenue Service to release Trump’s income tax returns for the last six years, which the president forcibly defies.

Together, these efforts constitute a broad push by House Democrats to assert their Constitutional powers of legislative oversight of the executive branch. In doing so, they put the issue squarely in the lap of the judiciary branch, potentially up to the Supreme Court.

Although a federal statute dictates that the IRS “shall” provide the House tax-writing committee with all such tax returns requested, Trump lawyers have challenged whether any legal legislative purpose would be served by complying.

Trump’s action constitutes probably the greatest challenge facing the federal judiciary and the presidency since the Watergate scandal of the 1970s. President Richard Nixon lost his case before the Supreme Court against release of incriminating White House tape recording, and he was subsequently forced to resign the presidency on the strength of evidence those tapes contained.

This time around, no such tapes have been disclosed or are known to exist. In their place are the notes of an aide to a former White House Counsel Donald McGahn, which reportedly describe incriminating conversations with Trump. They are said to include an order from the president to McGahn to fire Special Counsel Mueller, with which McGahn refused to comply.

The House Democrats contend that the notes of the aide, Annie Donaldson, constitute prima facie evidence of obstruction of justice and an impeachable offense. She is reported in the Washington Post as having written that Trump talked to McGahn about how to get rid of Mueller. It probably would not be nearly as persuasive as the Nixon tapes, however.

According to The Post in February 2018, the president became infuriated upon learning that notes were being taken of his conversations with McGahn, asking: “Why do you take notes? Lawyers don’t take notes.” He added: “I’ve had a lot of good lawyers, like Roy Cohn. He never took notes.” The reference was to the notorious mob-connected New Yorker not famed for legitimate practices.

A Trump White House lawyer, Assistant Attorney General Stephen Boyd, has argued that Trump had already asserted executive privilege over the entirety of the dispute on the subpoenas, without complaint then from House Judiciary Committee Chairman Jerrold Nadler of New York.

But Nadler responded that Trump’s answer “represents a clear escalation” of the fight over jurisdiction. “If allowed to go unchecked, this obstruction means the end of congressional oversight,” he said. “As a co-equal branch of government, we should not and cannot allow this to continue.”

Referral of the jurisdictional dispute to the court system, critical in terms of a basic tenet of our democracy, comes in the midst of an early and intensifying fight over the 2020 presidential election. It already is widely seen as a bitter and divisive referendum on the Trump presidency.

The Democratic leadership in the House cautiously addresses the possible impeachment of Trump, while congressional Republicans in both houses close ranks behind him and his hold on a majority of Trump faithful. House Speaker Nancy Pelosi calls Trump’s stonewalling an act of “self-impeachment,” meaning that it provides more evidence of his guilt.

But what about the integrity of the two-party system in Congress, now under fire in Trump’s assertion of dominance of the executive branch over the co-equal legislative? Much of the Grand Old Party on Capitol Hill appears hypnotized by him as he destructively overreaches established law with yet another abuse of personal hubris run amok.

Editor’s note: Jules Witcover’s latest book is “The American Vice Presidency: From Irrelevance to Power,” published by Smithsonian Books. You can respond to this column at juleswitcover@comcast.net.