With a full-on confrontation between the House and the president, no simple resolution is available.
By Noah Feldman
The White House.CreditCreditSamuel Corum for The New York Times
For the first time since President Richard Nixon refused to turn over the White House tapes, the United States is facing a genuine constitutional crisis.
To be sure, Donald Trump had already created a crisis in the presidency by abusing the power of his office to pressure foreign governments to investigate his political rival Joe Biden. But that act on its own didn’t count as a constitutional crisis, because the Constitution prescribes an answer to presidential abuse of office: impeachment.
Now that President Trump has announced — via a letter signed by Pat Cipollone, the White House counsel — that he will not cooperate in any way with the impeachment inquiry begun in the House of Representatives, we no longer have just a crisis of the presidency. We also have a breakdown in the fundamental structure of government under the Constitution. That counts as a constitutional crisis.
A constitutional crisis exists when two conditions hold. First, we face a situation where the Constitution does not provide a clear, definitive answer to a basic problem of governance. Second, the political actors whose conflict is creating the problem appear ready to press their competing courses of action to the limit.
With Watergate, those two conditions were met. When President Nixon refused to comply with a valid subpoena issued by a federal court, there was no clear answer in the Constitution as to which branch of government would prevail. Mr. Nixon wouldn’t budge, and neither the special prosecutor nor the court was willing to back down. The crisis was resolved only after the Supreme Court ordered the tapes to be turned over and Mr. Nixon resigned.
President Trump’s stonewalling of the House impeachment inquiry also satisfies the two conditions for a constitutional crisis. First, the Constitution doesn’t indicate what is supposed to happen if the House tries to exercise its constitutional power of oversight to investigate the president and the president flatly rejects the House’s constitutional authority. Congress can demand that the president comply, but it can’t very well send its sergeant-at-arms to the White House to enforce its subpoenas.
You might say that under the Constitution, the House could justifiably impeach the president for refusing to participate in the impeachment inquiry. Indeed, the third article of impeachment adopted by the House Judiciary Committee against Mr. Nixon charged him with contempt of Congress for ignoring subpoenas issued by Congress.
Yet as Mr. Trump appears to be calculating, it’s not so simple or satisfying for the House to proceed to impeachment without a factual inquiry. Impeaching a president for refusing to participate in an impeachment inquiry is a kind of meta-impeachment. It would allow Mr. Trump to argue that the meta-impeachment is illegitimate because it isn’t based on an investigation.
That brings us to the second condition, namely that neither of the key actors seems prepared to back down. About the only thing the House could do now would be to pass a resolution formally authorizing the impeachment inquiry — something it has not yet done and which the White House counsel cited in his letter as a reason to consider the current inquiry “unprecedented.” Passing such a resolution might be a good idea for the House. But it would not qualify as backing down. To the contrary, passing a resolution to investigate impeachment would raise the stakes in the constitutional confrontation.
Mr. Trump, for his part, could in theory back down once the House passes such a resolution and start cooperating in the inquiry. That would avert the crisis. It’s just barely conceivable that the motivation for the White House counsel’s letter was to force House Democrats to go on the record individually as supporting an impeachment inquiry.
The White House counsel’s letter, however, strongly signals that Mr. Trump won’t start cooperating even if the House passes a resolution to authorize the inquiry. The letter makes a number of independent arguments for why the current impeachment inquiry is unconstitutional and illegitimate, and those would presumably still apply even if the House passed a resolution authorizing the inquiry.
Assuming that Mr. Trump isn’t backing down, we’re witnessing a full-on confrontation between the House and the president, with no simple resolution available.
When two branches of government are locked in a standoff, it’s always possible that the third branch of government might come in to resolve it. In this instance, that’s the judiciary, and the Supreme Court is the obvious candidate for the role. Faced with presidential refusal to comply with subpoenas, the House could seek judicial enforcement of its subpoenas.
As a matter of ordinary constitutional law, there’s little doubt that the House’s arguments before the courts would be much stronger than any offered in Mr. Cipollone’s letter. It’s well-settled constitutional doctrine that Congress may issue subpoenas for any valid legislative purpose. The Constitution gives the House the power to impeach. An impeachment inquiry is therefore a valid legislative purpose under the Constitution — and impeachment-related subpoenas should be enforced by the courts.
The president could always assert executive privilege with respect to particular confidential documents. Such claims of privilege could be analyzed by the courts under existing constitutional precedents. There is no precedent in constitutional doctrine, however, supporting a president’s blanket refusal to comply with any subpoenas regardless of privilege.
More to the point, Mr. Cipollone’s letter presents the president as the judge of whether a congressional inquiry into impeachment is constitutional. That obviously can’t be right. Not only would that violate the principle of separation of powers; it also would effectively put the president in ultimate control of the impeachment process.
Given the extreme weakness of Mr. Trump’s arguments, it’s probable that the lower federal courts would side with the House. Going to the Supreme Court, however, is always a bit of a gamble. The court’s four more-liberal justices would undoubtedly side with the House. The court’s four most conservative justices, two of them appointed by Mr. Trump, would find themselves in a quandary. Given the weakness of Mr. Trump’s arguments, it’s possible to imagine that they would take the position that the judicial branch should abstain from a conflict between the other two branches — a way of dodging the issue that would effectively allow them to give Mr. Trump a victory.
That would leave the balance of power with Chief Justice John Roberts, who is a judicial conservative but above all wants to protect the court from appearing partisan. The trouble is, there would be almost no way for the Supreme Court to resolve the current crisis without seeming as though it was taking a side in a political fight.
What would happen? A good guess is that Chief Justice Roberts, with his back to the wall, would stand up for the clear constitutional precedent that says the courts will enforce valid congressional subpoenas. The Supreme Court chose the rule of law over President Nixon, a precedent that will not be lost on Justice Roberts.
But a guess is not constitutional reassurance. And in a constitutional crisis, that kind of reassurance is what the Republic needs.
Noah Feldman (@NoahRFeldman) is a law professor at Harvard, a columnist for Bloomberg Opinion and the host of the podcast “Deep Background.”
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