The Imperial Presidency and the End of Congressional Oversight

By MOLLY CLAFLIN
Chief Oversight Counsel, American Oversight

Donald Trump’s administration may only last four years, but its changes to America’s three co-equal branches of government will likely last much longer. Trump is systematically delegitimizing our system of checks and balances by arguing that the president should go unchecked, immune to any scrutiny from Congress.

The publication of the Mueller report made clear the numerous ways Trump tried to thwart any investigation of ties between his campaign and Russian interference in the 2016 election, including by firing the FBI director running the investigation, trying to fire Special Counsel Robert Mueller, and asking then–Attorney General Jeff Sessions to limit the investigation, among other examples.

But since the report’s release, the president has gone even further to shield himself from Congress’ constitutional power to investigate and oversee the executive branch. In just the past few weeks, he and his administration have:

1. Opposed testimony by current and former staffers. In the wake of the special counsel report on Russian election interference and possible obstruction of justice, Trump said that complying with requests from Congress regarding the report was unnecessary and he signaled to all potential witnesses that they should not cooperate with the House inquiry.
2. Filed a lawsuit against the House Oversight and Reform Committee over his tax returns. When the committee subpoenaed Trump’s tax firm, asking for his tax returns (as they are lawfully permitted to do), Trump instead sued Committee Chair Elijah Cummings, arguing that Congress has no legitimate reason to subpoena the tax returns and blocking the firm from turning over the information.
3. Refused to respond to congressional requests to Treasury: After the House Ways and Means Committee ordered the Treasury Department to turn over Trump’s tax returns, Treasury Secretary Steven Mnuchin refused. Mnuchin admitted that the department had discussed the issue with the White House, which said that Trump was “not inclined” to hand the tax returns over.
4. Refused to permit former White House Counsel Don McGahn to testify: When the House Judiciary Committee issued a subpoena for McGahn’s testimony, the White House said it would oppose the subpoena and exert executive privilege over any testimony by the former White House lawyer — despite McGahn having been one of the key witnesses in Mueller’s investigation.
5. Refused to respond to congressional subpoenas in 2020 census investigation: After the House Oversight Committee requested testimony from a DOJ official regarding the addition of a citizenship question to the 2020 U.S. census, the Justice Department has refused to comply, under the direction of Attorney General William Barr.
6. Ordered former staffers not to testify in the security clearance investigation: House Oversight is also investigating allegations that Trump interfered with career civil servants’ recommendations that Jared Kushner and Ivanka Trump should not be awarded top-secret security clearances due to concerns about their business ties to foreign governments and unreported foreign contacts. When the committee subpoenaed former White House Personnel Security Director Carl Kline, the White House directed him not to testify and to refuse to even show up at the hearing. (The White House has since relented, following pressure from congressional Republicans.)
7. Sued to stop Congress from subpoenaing his bank records: When the House Financial Services and Intelligence Committees subpoenaed Deutsche Bank for Trump’s financial records as part of their investigation into Russian money laundering, Trump sued the bank and Capital One — propelling a routine congressional subpoena into a prolonged court battle.

This is not normal.

Contrary to objections from Trump, congressional oversight is not “presidential harassment.” It is a principal underpinning the last 240 years of our republic. Entrenched in our federal system is the idea that the three branches of government are equal, and that no branch of government is free from public scrutiny —our famous system of “checks and balances.” One of the drafters of the Constitution, James Madison, made clear in the Federalist Papers the importance of establishing “subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner that each may be a check on the other.” In fact, the first congressional investigation of the executive branch was in 1791, and such investigations have continued ever since.

We have now arrived at a junction where this pillar of our republican government is being tested by a president who has decided that congressional oversight does not apply to him. Past administrations have stalled and negotiated with Congress over documents and testimony, occasionally holding back specific documents and delaying productions until certain conditions were met. But never before has the White House flatly refused to recognize the inherent oversight responsibilities of Congress.

If Trump succeeds in avoiding all congressional scrutiny, he will fundamentally change the relationship between the executive and legislative branches of government and set up a dangerous precedent that will far outlive his administration. As our government was designed, the legislative branch — Congress — represents the interests of the American people and provides an important venue for the people to play a role, through their representatives, in how our government functions. Part of that role requires that our legislators (and those they represent) have a clear view into the White House and our federal agencies. Once closed by an unchecked presidency, that window is unlikely to reopen.

Congressional oversight plays a vitally important role in our democracy. It ensures that no branch of government is unaccountable. While elections are the ultimate check on executive power, our elections are only meaningful if voters can see what their elected officials are doing and make an informed choice at the ballot box.