The Mueller report was clear in its findings that there was collusion between the Trump campaign and Russian operatives. The report never used the word because “collusion” is not a crime. But for the President and other “spinners” to say there was no evidence of collusion in the report is as absurd as it is insulting. The report did not find the intent necessary to spell out a crime of conspiracy; however, the report outlines such collusive transactions as Trump’s campaign chairman sending polling data on the key battleground states of Michigan, Wisconsin, Pennsylvania and Minnesota to Russia.
With respect to the Trump Tower meeting, even before the Mueller report was issued, the late Charles Krauthammer, a respected conservative commentator, told Fox News: “This was a bungled collusion. This was amateurish collusion. This was Keystone Kops collusion. But it doesn’t change the fact that it was attempted collusion and it undoes the White House story completely.”
The Mueller report also details the President’s conduct in obstructing justice. If Trump were not a sitting President, it is clear that he could have been indicted on the ample proof submitted in the report; however, Mueller, citing the Department of Justice guidelines, did not indict leaving recourse to the Congress.
The last time Congress undertook the impeachment of a sitting President was in December 1998. It all began when independent Counsel Ken Starr turned over a report to the House Judiciary Committee then controlled by the Republican Party. The Starr report was generated after many years of investigating President Clinton, starting with Whitewater and ending with Monica Lewinsky. The investigation cost twice as much as the Mueller investigation and lasted twice as long.
Unlike what is happening with the Mueller report, there were no preliminary evidence gathering congressional hearings and no subpoenas—all the House needed was the Starr Committee report which the Republican majority used as evidence to impeach Clinton on the charge of perjury and “obstruction of justice.” Clinton was impeached by the House, but the Republicans could not muster a two-thirds majority necessary to convict in the Senate. During the impeachment process President Clinton’s popularity soared.
Rather than move to impeach the President Trump on the Mueller report, the House apparently has elected to issue a number of subpoenas which have been resisted by the President and the Attorney General asserting what has become known as “executive privilege.”
Although the term “executive privilege” was first used by President Eisenhower, the attempts to define the extent of the privilege goes back to the time of this nation’s founding. When George Washington refused to turn over papers requested by Congress, Thomas Jefferson said that Washington could withhold only those papers which would “injure the public.” No one thought of going to court, because our founders believed that this was a matter to be resolved between the executive and the legislative branches.
It wasn’t until the treason trial of Aaron Burr, when both Congress and the Judiciary sought private correspondence written by Thomas Jefferson relating to Burr, that the courts became involved. In that case the Supreme Court set forth a rather amorphous standard saying that Jefferson was to “communicate to the Senate such parts of the said correspondence as upon examination he shall deem safe and proper to disclose: withholding all such, as any circumstances, may render improper to be communicated.” The only reason the courts became involved in that matter was because a trial for treason was implicated.
A reading of the Federalist Papers and the Constitution itself provides ample proof that the judicial branch was never intended as an arbiter in conflicts between the executive and legislative branches of government. The roles of the executive and judicial branches are strictly defined by the Constitution and the conflict between the two branches was anticipated and provides the checks and balances necessary to ensure a stable government.
In the context of an impeachment trial, when President Nixon asserted executive privilege to prevent the subpoenaing of the Watergate Tapes, a unanimous Supreme Court, while acknowledging that there was such a thing as executive privilege, directed Nixon to hand over the tapes. While not defining the contours of the privilege, the court held that it did not embrace: “absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”
The judicial branch of government will determine executive privilege when the material sought is in the context of a trial, such as impeachment, or a judicial proceeding. The courts will not allow process to be abused; however, it has been held in a case involving the application of that privilege: “Once executive privilege is asserted, coequal branches of the Government are set on a collision course. This inquiry ***pushes to the fore difficult questions of separation of powers and checks and balances. These ‘occasion[s] for constitutional confrontation between the two branches’ are likely to be avoided whenever possible.”
Neither political party has been anxious to have executive privilege defined by a court or by legislation because both political parties tend to support the privilege when they are in control of the presidency. If a court determines that President Trump has an unfettered right to privacy with respect to his personal financial transactions or that his advisors are immune from subpoena, Congress would be forever limited in its future oversight of any President. Conversely, if a court decides against President Trump on all counts, future Presidents will be hard pressed to assert executive privilege. This is why past Presidents have been reluctant to test their “privilege” in court and why the legislatures steer clear of definitions.
The only time the legislative branch flexed its muscles when it came to enforcing and defining its powers to overcome the privilege asserted by the executive came after the Teapot Dome scandal involving the bribing of a member of President Harding’s cabinet. While the Senate was investigating one of the most notorious scandals ever to hit Washington, the administration ignored a congressional subpoena. The Supreme Court in that case held that the Senate had the power to arrest and detain a witness who had refused to testify. Congress was so infuriated by the way in which the Harding administration had ignored its subpoenas that it passed the legislation, now invoked by the House against President Trump, which gives subpoena power to review the tax records of any U.S. citizen. That law prohibits White House interference. There is little doubt that the subpoena of President Trump’s tax records will be enforced by the courts, not because of the inherent power of the Congress to investigate, but because of the statute.
President Trump has threatened to go to the Supreme Court to stop the House investigation predicated on his executive privilege, but there is no such thing as constitutionally protected executive privilege. On the other hand, the Constitution does give Congress the power to impeach the president with the implicit constitutional power for Congress to investigate the president. An undefined “executive privilege” should never be allowed to stymie an exercise by Congress of its defined constitutional power.
When the courts have been asked by the executive to nullify a congressional subpoena issued in the legitimate furtherance of a legislative purpose, it will be reluctant to become involved. Conversely, if the executive branch refuses to comply with a congressional subpoena, unless the subpoena is issued as part of a judicial or impeachment proceeding, the court will generally hold such matters to be “political questions” beyond judicial review.
We cannot expect the Congress and our President to agree to the enforcement of any Congressional subpoenas as has been the usual case in the past. Nor can we expect the courts to become enforcement agencies and take jurisdiction of all of the matters involved in the House subpoenas. Even if the courts intervened—a temptation they should resist—the lapse of time between decision and enforcement will bring us past the next presidential election and no one will care.
I believe the impeachment of President Trump by the Democratic Congress would be a time consuming and political mistake. It would only embolden President Trump’s claim to martyrdom and none of his supporters would abandon him. Given the fact that the Senate would acquit, I believe undecided voters would think an impeachment proceeding to be a costly, distracting, and a vain pursuit. Polling indicates that the majority of voters believe that Trump has obstructed justice—we will know the effect of that knowledge after the next election.
Congress, instead, should address the rise of anti-religious bigotry, the weaknesses in our intelligence system, reformation of our tax laws, the lowering of our prescription and health care costs, the rebuilding of our infrastructure, repairs to our immigration system, climate change, and the myriad of other problems we face.
The majority of the House members should not spend its valuable time and powers solely to undermine the President, and the majority of the Senate should remember that its obligation is to the American people, and not to simply to defend the President and his unquenchable ego.
Sol Wachtler, a former chief judge of the New York State Court of Appeals, is a distinguished adjunct professor at Touro College Jacob D. Fuchsberg Law Center.