Democrats are seeking to gain information about the administration. They claim it’s their duty and it’s for the good of the nation, both of which are reasonably true, but they also hope it will give them political advantages and even lead to evidence of criminal conduct, which is even truer.
President Donald Trump has announced: “We’re fighting all subpoenas.” House of Representatives Speaker and Democratic Party leader Nancy Pelosi has fired back: “Nothing is off the table [to enforce subpoenas].”
Think of it as a computer game – or if you’re old fashioned – a board game. The players take turns. There are multiple exchanges. There are many possible paths that lead to a whole range of endgames, from impeachment and even criminal indictment of the president to the end of the republic.
There doesn’t appear to be an accurate account of the number of subpoenas issued by committees with Democrat majorities, but Trump’s lawyers have said there are more than 100 of them against the president and his associates.
Let’s take just one as an example. Attorney General William Barr was originally requested and then scheduled to appear before the House Committee on Oversight and Reform. Barr had already been questioned in the Senate where the committees are run by Republicans, the majority in that body.
Even with the friendlies in charge, Barr was pummelled into a state of mumbling, stumbling, stalling, prevaricating, and parsing so severe that he had to pretend he was trying to figure out what the word “suggest” meant in order to avoid giving a straight answer. After that, he decided not to show up in front of the House Committee on Oversight and Reform, which had Democrats in charge.
The Chairman of the committee, Jerry Nadler, had a subpoena issued to compel Barr to appear. Subpoenas have enforceable legal power. That normally means they cannot be ignored, though they can be contested.
A quick look at the other subpoena from Nadler to Barr will illustrate the difference: the one for the complete and unredacted Mueller Report. There are legitimate reasons for a couple of the elements of that report to be withheld. It contains testimony before a grand jury, which by law, cannot be revealed.
Democrats say Barr could go to a judge and have the material released. That’s correct. They also say that is the norm for this situation. It may be, but Barr legally has that choice. The report also contains information about at least 14 investigations that are still ongoing. The Department of Justice (DoJ) virtually never releases details about such.
Barr could say, “I acknowledge Congress’s role here, but I would like to put limits on your requests due to these specific issues”. They could then go into negotiations. If each side regarded the other as acting in good faith they would likely reach a compromise. They don’t. So they won’t.
The next step is to go to court. In this instance, it would probably be up to Barr. He could contest the subpoena entirely. The administration is doing that, having thrown a claim of “executive privilege” over the whole of it. That privilege normally ends as soon as an outside party is privy to the exchanges. The Mueller investigators, even the typists, are outside parties. That claim will almost certainly not stand. Though more complications will follow, let us leave it there.
Let’s stay with the first subpoena, the one that commands Barr to show up in Congress and respond to questions. That’s simple.
There are no legal quibbles, though there are power games. The subject of the subpoena can say: “I’ll only appear for a set length of time” and only answer questions about limited issues – “if you don’t like it, come after me”.
What the subject of a subpoena cannot do is say: “No, I’m not doing it,” or ignore the subpoena. If they can get away with that, Congress is diminished, not, perhaps to total powerlessness, but with little left to do but fulminate and whine.
That takes us to the next step in America’s real-life game of “is it a throne or a mere presidency”: enforcement.
Normally, Congress gets the DoJ to compel enforcement.
There’s universal agreement that the DoJ under William Barr will not enforce contempt charges against William Barr. Or against any of the multitude of malefactors, associates, and witnesses to the malfeasance of Trump et al. They’re already out there inventing new legal theories to protect the administration.
The next method is to ask a federal court to hold the defiant ones in contempt. The problem is that the law specifically excludes federal officers and federal employees from this process.
The one that’s the most fun is called “inherent contempt”. When Congress finds someone in contempt, it can, like a judge, order them held and fined, until they comply.
Enforcement would fall to the Sergeant at Arms of the House of Representatives and to the Capitol Police, which answers to Congress. But inherent contempt hasn’t been used since 1935 and Congress doesn’t have its own dungeon.
There have been suggestions that fines could be imposed instead. If they were, it’s likely that wealthy Trump supporters would cheerily jump in to cover them.
While Congress can’t go to court to enforce contempt charges, they can go to court to essentially change the original congressional subpoena into a court-ordered subpoena. If the subject of the subpoena then fails to comply, they are in “contempt of court”. That’s real contempt. The judge orders federal marshals to bring them in and they can be held until they comply.
We now switch back to the 100 or so subpoenas and requests (which will turn into subpoenas if they are ignored or resisted) that Trump’s lawyers have referred to.
The next step is for all sides to go to court. Congress will ask for enforcement. The DoJ – and some of the individuals subject to the subpoenas – will ask for the subpoenas to be disallowed or modified.
It is likely that Congress will win some, meaning that the subpoenas will become court orders and disobeying them will become contempt of court. The Trump forces may win some as well.
The right to appeal is automatic. It’s almost as simple as the lawyer of a losing side raising his hand and saying: “I want to appeal.” Almost all losers at this stage of the game will appeal. They will also ask for a “stay” – a request that the court’s decision is not enforced until after the appeals process is completed.
The next step for losers at the appeals court level is to try to get to the Supreme Court. That’s not automatic. They only take between 100 and 150 of the 7,000 or more cases that ask to be heard. Some of the attempts by Congress to compel information from the administration will most probably get there.
There are lots of relatively technical cases that come before the nine-member Supreme Court that are actually decided on the basis of law. But when it comes to political and social issues, there’s neither law nor reality. There’s ideology (an oft-cited five-to-four split in favour of conservative views) and group identity; there’s anger and resentment; there’s self-image.
Will Brett Kavanaugh, who was accused of sexual assault, get the revenge he promised during his Congress hearings? Will Neil Gorsuch get back at Congress for holding his mother in contempt? Will Samuel Alito and Clarence Thomas be true to the Republican Party because that’s what they do? Will the other four stand for Congress’s right to know? Will it be up to John Roberts, who seems to care about if history will recall “the Roberts Court” as one that stood for the rule of law or the one that let the US become Trump Towers?
Depending on how all these variables align, there are multiple outcomes that can decide who wins the war and how.
The Democrats could achieve some significant victories in court, like accessing Trump’s taxes and some testimony from former Special Counsel Robert Mueller once he is no longer a federal employee, and perhaps even Deutsche Bank, which was the source of many loans to Trump. Much of Trump’s business took place in New York state, including his “charitable” foundation. Criminal charges will likely proceed there in addition to and, more significantly, outside the federal process and the DoJ’s internal rule against indicting a sitting president.
Based on all that he’s done so far, Trump will become more bellicose. Will his reactions take him across the invisible line that makes Republican senators say “no more, we will stand up for the rule of law”? Perhaps, if there is indeed such a point.
Trump always announces total defiance, lawyers up, and like the hagfish, discharges slime to deter his opponents. That’s effective in that it drags things out. It gives him time to manufacture confusion and make evidence disappear. It wears down his attackers. When he’s finally faced with defeat, as with the fraud suits against Trump University, he reaches a settlement that avoids maximum penalties and claims victory.
Following one track, that’s the middle endgame. Trump loses on the release of his taxes, he loses on Congress hearing lots of testimony, he finally slips in the polls, and walks off to sell golf club memberships, million-dollar condos, and finally, Trump Tower Moscow.
Let us follow Barr, on another track. He has already mocked Pelosi when he saw her in person, over Congress’s inability to enforce its orders, saying, “Madam Speaker, did you bring your handcuffs?”
Madam Speaker could bring the handcuffs and hold Barr for inherent contempt. Nadler, who is clearly enraged by Barr’s disrespect for Congress, could push for impeachment of the attorney general. It would be a practice run for a presidential impeachment, with clear evidence, a weaker opponent, and far less risk.
The Supreme Court might do for Trump what it did in Bush v Gore. Then, it made up a theory so flimsy that they said it should never be used as a precedent, in order to stop the recount in Florida and make George W Bush president. Now, they might say that the president is so special that he does not have to comply with Congress or courts lower than themselves.
However, the Supreme Court could also decide against Trump but then, does he comply? Who enforces it? Do federal marshals enter the White House to take him to jail? Does he claim that’s a coup? By the deep state?
Ultimately what Trump hopes for is to goad Congress into pushing for impeachment. Republican senators would stand by him and undermine the process, inflicting a heavy political defeat on the Democrats. Once again, Trump would be victorious, validated and above the law. It would be a monumental failure of democracy, if not the end of the republic or edging very close to it.
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.