In 2011, during the Obama administration, the Republican-led House Committee on Oversight and Reform opened an investigation of Fast and Furious, an operation by the Bureau of Alcohol, Tobacco and Firearms, in which guns supposedly went missing in Mexico. The Justice Department turned over documents, and Attorney General Eric Holder testified before Congress, acknowledging that Fast and Furious was “fundamentally flawed.” But the Justice Department claimed executive privilege — the single time the Obama administration took this position in court — over materials concerning its internal deliberations. The litigation dragged on until April 2019.
A case pitting executive privilege against Congress’s demand for information has never reached the Supreme Court. The fundamental legal question at the heart of the impeachment inquiry remains unresolved. One potential witness in inquiry, the former deputy national security adviser Charles M. Kupperman, has filed a lawsuit to ask the courts whose order he should obey. “Plaintiff obviously cannot satisfy the competing demands of both the legislative and executive branches,” the suit correctly states.
Without the ability to control who testifies, Trump’s presidency looks less imperial. But when impeachment is over, whatever the outcome, Congress may well decide, as it did after Teapot Dome and Watergate, to put the lessons of this investigation to work in resetting the balance of power. To ensure that the public knows more about any personal financial interests that might influence the president, Congress could pass a law requiring the future occupants of the White House to disclose their tax returns and more information about their financial investments. “This should be low-hanging fruit,” said Bob Bauer, who served as Obama’s White House counsel. “Even in our polarized world, this could get done, after Trump. And it should.”
Other proposals involve a trade-off of potential costs and benefits. To prevent court proceedings from dragging on, Congress could set short timelines for rulings, like 30 or 60 days. “Delay helps the status quo, which means it helps the president,” said Steve Vladeck, a law professor at the University of Texas at Austin. “Congress could fix this.”
But what if an increasingly conservative judiciary — Trump has had more than 150 judges confirmed — comes down definitively on the side of executive power? “Be careful what you wish for,” said Jack Goldsmith, a Harvard law professor and alumnus of George W. Bush’s Justice Department. Congress has powers of its own that it has gotten out of the habit of using, he argued. “Literally everything the executive branch does requires funding,” Goldsmith said. “And of course the House controls spending.”
Bauer and Goldsmith are writing a book together tentatively called “After Trump: An Agenda for Reform,” a collaboration that illustrates some bipartisan agreement, in the legal world, that the separation of powers is out of whack. Congress has to strengthen its own hand (and the next president has to help it do so). To be sure, a core of executive power will remain untouched. The attorney general will continue to serve at the pleasure of the president inside the executive branch, despite the challenges that poses for the independence of the Justice Department and any criminal investigation of the president.
Nixon was wrong when he said, “When the president does it, that means that it is not illegal,” and Trump was wrong when he tweeted, “I have the absolute right to PARDON myself.” The framers debated ideas like these and built the whole ingenious and infuriating system of American government on rejecting them. They’d lived under the rule of a king. They understood the inherent danger. “The accumulation of all powers, legislative, executive and judiciary, in the same hands,” James Madison wrote in 1788, “may justly be pronounced the very definition of tyranny.”