Much of the nation is focused on the growing constitutional conflict between the Trump administration and the Democratic majority in the House of Representatives. Words like “unprecedented” are being bandied about in the press to describe the slow-rolling legal calamity unfolding before us. While it is true that many elements of the current situation are peculiar to history, there is nothing new here save, perhaps, for the danger represented by this preposterous president.
It was, in fact, former Vice President Dick Cheney who started this fight in earnest, way back when he got angry at what all those meanie Democrats were doing to Richard Nixon, Cheney’s first presidential boss. Nixon, of course, attempted to put the presidency beyond the reach of the law and failed in spectacular fashion. The members of his legal team fell short because they were basically making up their arguments as they went along. No president in a century had been so eager to flout the Constitution in broad daylight.
Cheney — a protégé of Nixon White House official Donald Rumsfeld — learned many lessons from the Watergate experience. He bided his time, gathering to himself enough power and influence such that when Republican presidential nominee George W. Bush tapped him to choose a running mate in 2000, Cheney chose himself.
The rest is odious history. Over the eight years of the second Bush administration, Dick Cheney became the most powerful vice president in U.S. history, and used that power to deploy what became known as the Unitary Executive Theory. The theory argues that, to all intents and purposes, the rule of law does not apply to the president of the United States (unless that president happens to be a Democrat).
The Bush White House, under Cheney’s behind-the-scenes stewardship, flagrantly ignored lawfully issued subpoenas from House Democrats. In many instances, the administration’s arguments against these subpoenas wound up getting slammed in court. “The executive’s current claim of absolute immunity from compelled Congressional process for senior presidential aides is without any support in the case law,” ruled Judge John D. Bates in August of 2008 regarding subpoenaed testimony from administration officials Joshua Bolten and Harriet Miers.
The object of the administration’s legal stonewalling, in the end, was to expand the parameters of presidential power while running out the clock. Absent the pressure of an impeachment inquiry, which many Democrats wanted despite it being “off the table” per then-Speaker Nancy Pelosi (D-California), the White House was ultimately able to avoid the consequences of enacting Cheney’s contra-constitutional Unitary Executive Theory until Bush left office. After that, of course, we were all “looking forward,” and the new standard for executive power was set.
History rhymes, as Mr. Twain was purported to say. One wonders if Mr. Obama regrets not pursuing the prosecution of Bush officials for at least some of their crimes. If he doesn’t, he should, because we are all in this mess today because nobody said “no” to Dick Cheney 18 years ago, and there were no consequences for him or his minions once they all left office.
Today, White House lawyers are coughing up Unitary Executive arguments in court that would make Dick Cheney blush … or maybe not, given that Cheney once told the National Archive that it couldn’t have his work-product documents for posterity because the vice president’s office was not part of the executive branch. Still, I think he must be impressed by the sheer chutzpah on display.
Late last week, Trump’s legal team was in court over the fight to get funding for the farcical border wall project. Deputy Assistant Attorney General James Burnham stood before a judge with his bare face hanging out and argued that Congress did not actually deny Trump funding for the wall when they excluded it from the February appropriations bill. Douglas Letter, counsel for the House of Representatives, was almost left spluttering in astonishment. “That just cannot be right,” he responded. I guess we’ll see.
This may appear on the surface to be another Trumpian mud fight over his precious border project, but in fact it is yet another assault on the constitutional powers of Congress, part of the larger war to make the Unitary Executive Theory the ultimate law of the land.
If the judge in the border wall money case decides in favor of the Trump administration, Congress basically loses the “power of the purse,” which is just about the only power it has left. Congress can pass laws the attorney general won’t enforce and issue subpoenas the president won’t obey, but congressional representatives are still in the game if they are the only ones able to appropriate funding.
Lacking that, Congress is reduced to a marble building filled with mostly rich people charged only with the duty of raising their hands whenever a colleague wants to make National Fried Baloney Sandwich Day an official thing. Pretty much everything else would fall to the person in the Oval Office, which is the whole idea to begin with.
The primary goal for the Unitary Executive theorists in the Trump administration is the final obliteration of congressional oversight powers. This came into sharp focus on Monday when Trump directed former White House counsel Don McGahn to defy a congressional subpoena to testify about the Mueller report. McGahn was scheduled to testify before the House Judiciary Committee on Tuesday, but per administration instructions, did not show.
In a 15-page letter justifying McGahn’s illegal defiance of a congressional subpoena, written by Assistant Attorney General Steven Engel, the administration argues for a level of executive privilege that has never existed before. McGahn’s immunity, wrote Engel, “extends beyond answers to particular questions, precluding Congress from compelling even the appearance of a senior presidential adviser — as a function of the independence and autonomy of the president himself.”
Take a moment with “precluding Congress from compelling even the appearance of a senior presidential adviser,” because that’s the ballgame. No witnesses, no testimony, no documents, no oversight at all. As with the border money fight, if a judge buys it, it’s the law, and there’s at least one Supreme Court Justice who has been a lifelong advocate for a legally untethered executive branch. All it takes is four more like him and Congress can go home, because they’re done.
Some Republicans have actually begun to come to the realization that the president whom they’ve been hauling water for all this time is looking to broom them out of the building. “But these lawmakers,” reports Politico, “are not preparing to act in any way that constrains Trump.” Trying to contain my shock … OK, it’s contained.
That leaves Speaker Pelosi and the House Democrats, a terrible band name if ever I’ve heard one. The last congressional countermeasure available to check a rogue president is impeachment, and that show belongs to Congress alone. The constitution plainly states that “the House … shall have the sole Power of Impeachment” and “the Senate shall have the sole Power to try all Impeachments.” The words “sole power” means the courts don’t get a say.
Speaker Pelosi had to quell a rebellion against her anti-impeachment stance within her own leadership on Monday after McGahn declared he would not obey the Judiciary Committee’s subpoena. She had another meeting with members of her caucus on Wednesday, and nothing changed. “Stay the course” was her sole marching order. Pelosi’s argument now boils down to, “We can’t impeach because it will be dead in the Senate, so instead let’s craft legislation that will be dead in the Senate.” Apparently they can’t do both. Truly inspirational.
Many members of that caucus want to impeach, if only to defend the institution they work for and the Constitution they swore to defend, and the Speaker is running out of excuses. When Tea Party darling and possible presidential challenger Rep. Justin Amash (R-Michigan) came out for impeachment over the weekend, those excuses only got thinner.
This moment is genuinely historic, an “inflection point” as described by Rep. Ted Lieu (D-California). “Either the Trump camp’s claims about executive power stand,” writes Esquire blogger Charles P. Pierce, “or the Constitution does.” What began with Richard Nixon and accelerated through Dick Cheney has come to full noxious bloom under Donald Trump. It is time for Speaker Pelosi and House Democrats to salvage this thought experiment we call a country, and to salvage the institution they serve while they still can. Impeachment is the way.
This article has been updated.