Both Americas—the one that views the world through Fox News and the one that views the world through CNN/MSNBC—are suggesting that we are headed for a “constitutional crisis.” What do we say to them? “Not today!”
With President Donald Trump and Democratic members of Congress at odds over access to Special Counsel Robert Mueller’s report and Trump’s financial records, the television talking heads who tell Americans what to think are speculating that we are headed towards a constitutional crisis. While there is clearly a constitutional conflict between Congress and the executive branch, it not quite time to sound the alarm.
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Earlier this month, Rep. Jerry Nadler, the Democratic chair of the House Judiciary Committee, joined the TV-rating grabbers when he stated in an interview with CNN that we are in a “constitutional crisis” because “the president is disobeying the law, is refusing all information to Congress.”
But What Is a Constitutional Crisis?
It is a complicated question, and even legal scholars do not totally agree on a formal definition or a standard for what constitutes a “constitutional crisis.” However, the Constitution has survived many challenging periods in history, including a civil war. One would certainly consider the issues surrounding secession a constitutional crisis.
Except for those who might have lived through the Roosevelt administration, perhaps most of us are witnessing the most significant constitutional challenges since the late 1960s. The unchecked use of language and confusion between opinion and fact accelerated by the internet gives the current situation some urgency, but it certainly does not compare to the late 1960s, when images of dead and injured Americans in Vietnam were on television every night.
Battle Over Barr Subpoena
On May 8, House Democrats voted to hold the U.S. Attorney General william barr in contempt of Congress for his failure to hand over the full, unredacted version of the Mueller report. As highlighted in a recent report by the Congressional Research Service, Congress gathers much of the information necessary to oversee the implementation of existing laws or to evaluate whether new laws are necessary from the executive branch.
“The power of inquiry has been employed by Congress throughout our history, over the whole range of the national interests concerning which Congress might legislate or decide upon due investigation not to legislate; it has similarly been utilized in determining what to appropriate from the national purse, or whether to appropriate,” the Supreme Court said in Watkins v. United States. “The scope of the power of inquiry, in short, is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.”
When the executive branch refuses to provide information willingly, Congress can issue subpoenas. When that doesn’t work, the most common way for Congress to enforce a subpoena is for the Department of Justice (DOJ) to prosecute the individual. However, that is clearly unlikely here.
Congress is then left to pursue less traditional approaches, such as inherent contempt, under which the House can authorize its sergeant-at-arms to detain an individual who has failed to comply with a subpoena. The House then conducts a “trial” and may imprison the individual until they comply.
In McGrain v. Daugherty, which arose out of the 1927 Teapot Dome Scandal, the Supreme Court upheld the House’s authority to arrest and detain a witness in order to obtain information for legislative purposes. It wrote:
A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed.
While Congress has the authority, it likely wants to avoid “arresting” the attorney general. Congress may also bring a civil suit in the federal courts. Under the civil enforcement process, either house of Congress may unilaterally authorize one of its committees or another legislative entity to file a suit in federal district court seeking a court order declaring that the subpoena recipient is legally required to comply with the demand for information.
While the Barr subpoena clearly escalated the power struggle between Congress and the Trump administration, the courts still remain a viable option to resolve the dispute. In fact, that’s one of the main reasons the Constitution established three co-equal branches of government. There is also time for the two sides to reach a compromise as their legal disputes work their way through the judicial system.
Defying the Supreme Court
Should Trump refuse to comply with a binding Supreme Court order, we may arguably reach “crisis” level, since there isn’t a path for resolution within the existing constitutional framework. While this sounds ominous, we have been there before.
In Worcester v. Georgia, the U.S. Supreme Court held that the Cherokee Nation was sovereign and that a Georgia law removing them from their land directly conflicted with treaties executed by the federal government and the laws enacted by Congress to enforce them.
In response to the court’s decision, President Andrew Jackson allegedly said, “John Marshall has made his decision; now let him enforce it!” In direct violation of Congress and the Supreme Court, Jackson went on to allow the State of Georgia to forcibly remove the Cherokees in what became known as the “Trail of Tears.”
While the forced removal of thousands of Native Americans remains a stain on our country, the balance of government was ultimately restored. So while today’s political environment may be concerning, our form of government has also proven to be extremely resilient.
Donald Scarinci is a managing partner at Scarinci Hollenbeck—read his full bio here.
