Editor’s Note: Julian Zelizer is a professor of history and public affairs at Princeton University and author, with Kevin Kruse, of the new book “Fault Lines: A History of the United States Since 1974.” Follow him on Twitter at @julianzelizer. The opinions expressed in this commentary are his own. View more opinion articles on CNN.
President Donald Trump is doing his best to obstruct the investigations into him, his campaign and his administration being carried out by the Democrats who control the House of Representatives. Trump is warning that he will refuse to allow key documents – such as his tax returns – to be released to the relevant congressional committees and that he won’t allow administration officials to testify. “We’re fighting all the subpoenas,” the President told reporters as he got on a plane for Atlanta. He even said, “If the partisan Dems ever tried to Impeach, I would first head to the US Supreme Court.”
House Speaker Nancy Pelosi is mad as hell. Her spokeswoman released a statement saying: “President Trump and his Administration are engaged in unprecedented stonewalling and once again using the legal system to conceal every area of his life as well as his wrongdoing and improprieties from the American people.”
We are getting deeper and deeper into a constitutional crisis.
According to the principle of executive privilege, presidents have the right to keep information away from Congress or the courts under certain conditions. A handful have used a number of arguments to justify executive privilege, including the interests of national security or the need to allow staffers to have conversations free of the fear they will be on the front pages.
Trump would not be the first president to utilize this privilege, if that is the argument he goes with. Presidents since George Washington have invoked the right to keep documents and advisers away from Congress under certain circumstances. The term was introduced by President Dwight Eisenhower when he refused to share information or advisers with the Army-McCarthy hearings. “Any man who testifies as to the advice he gave me won’t be working for me that night,” Eisenhower warned.
Of course, the most famous clash occurred in 1974. President Richard Nixon had rebuffed the efforts by a judge, a prosecutor and the House Judiciary Committee to obtain the audiotapes of White House conversations. Nixon had initially tried to stave off these demands by releasing edited transcripts of the tapes, which didn’t satisfy investigators’ demands.
In July 1974, the Supreme Court ruled that executive privilege was a legitimate principle but in Nixon’s case it could not be used. The right of the public to know the truth in an investigation outweighed the president’s right to block the material. The tapes were released, the smoking gun tape was discovered, and soon after, Nixon resigned.
After Nixon, presidents were pretty reluctant to invoke this privilege, fearing anything that would make them look like the disgraced president. The next to challenge Congress was Bill Clinton. In 1998, his administration lost in court when a federal judge ruled that his aides could be required to testify by the independent counsel in the scandal involving his relationship with intern Monica Lewinsky. Clinton did not appeal to the Supreme Court.
President Barack Obama also had his use of executive privilege challenged in federal court. The administration tried to withhold documents from the Republican Congress investigating the “Fast and Furious” scandal in which the Bureau of Alcohol, Tobacco, Firearms and Explosives was accused of a failed gun-selling and gun-tracking operation to Mexico.
Many presidents have attempted to use this power under specific circumstances with specific hearings. But Trump is making a much bolder claim. The president is being very straightforward. He will defy all subpoenas because he does not believe the investigations are legitimate. His claim has nothing to do with national security. It isn’t even being sold as an effort to protect the ability of his advisers to speak freely. He just doesn’t agree to participate, claiming that the Democrats are being driven by partisanship. The President will flex his executive muscle because he believes he can. He is daring anyone to stop him.
This is exactly the kind of attitude that has driven much of his presidency, and the guiding philosophy that pops up in the second part of special counsel Robert Mueller’s report. Not surprisingly, the way that he is handling the post-report period, with grandiose claims of presidential authority and aggressive postures toward the legislative branches, are confirming the worst impressions to come out of Mueller’s investigation. This is the ultimate example of a president trying to act in imperial fashion.
At the most basic level, the President probably hopes he can stall the investigations and tie up the process until this congressional session ends in early 2021, at which point the subpoenas expire.
By then he is hoping to be re-elected and to have a Republican House to protect him. The main enforcement mechanisms that are available to Congress – issuing contempt of Congress citations and relying on civil enforcement – take time and are cumbersome. The attorney general would also play a role in contempt citations, which would unlikely result in any progress.
The ultimate irony, as Greg Sargent argues, is that Trump will keep making it harder for Democrats to avoid impeachment proceedings. The President keeps forcing the nation’s hand in considering how far it is willing to let a president go before finally saying that enough is enough.