Coronavirus Infects Checks and Balances


Bill Yeomans


Access to Healthcare, Executive Power & Civil Liberties

As the country faces the pandemic, social distancing and
provision of medical services are vital to save lives. We must not forget,
however, that oversight of the executive in this difficult time remains vital
to saving democracy.

The Trump administration has fought congressional and
judicial oversight with the ferocity of the guilty. It has hidden behind absurd
assertions of absolute privilege and strained interpretations of congressional
authority to resist subpoenas for witnesses and documents. It has argued that
the president cannot be investigated for crimes, much less indicted. It has claimed
that the remedy for a president who commits crimes is impeachment, but it has simultaneously
argued that Congress is not entitled to subpoena witnesses and documents for
impeachment. To top it all off, it has argued that courts lack authority to
referee disputes between the executive and legislative branches.

Trump’s war on transparency has been led by his lawyers,
most prominently Attorney General William Barr. Barr has articulated and
pursued an extreme version of the unitary executive theory of the presidency in
which the president’s actions can rarely be questioned or limited by Congress
or the courts. In this view, the traditional checks and balances so essential
to our constitutional system become nuisances to be brushed aside in pursuit of
unfettered executive power. Trump built a wall around his presidency to keep
Congress and the courts out.

Trump’s disabling of Congress and the courts (aided by his
remaking of the courts in his own image) has worked astonishingly well through
the first three years of his administration. Some potential cracks, however,
were appearing in the administration’s protective wall through upcoming
hearings and court cases. Then, along came the coronavirus to disable the
institutions of government that threatened to hold Trump and his administration
accountable before he faces the public in November.

Congress has had to suspend traditional oversight, as
hearings have become cauldrons for infection. Attorney General Barr, for
example, was scheduled to appear for the first time in a year before the House
Judiciary Committee this week. He would have faced difficult questions about
his politicization of the Department of Justice on such topics as: his handling
of the Mueller Report (including his misleading descriptions of its findings
and his unfounded investigation of its origins), his role in attempting to
block the Ukraine whistleblower’s complaint and in declining to investigate the
criminal referral it generated, and his interference in the sentencings of
Roger Stone and Michael Flynn. This is important stuff, but the hearing has
been postponed indefinitely.

Similarly, hearings that should be held to address a host of
issues ranging from climate change to health care to Foreign Intelligence
Surveillance Act practices will have to wait until it is safe to convene. Congress
is now slated to return to Washington on April 20. That date seems aspirational
in view of the consequences of summoning 535 aging adults and thousands of
staffers to mill about in close quarters for extended periods as the plague
reaches its zenith. Odds are good that Congress will not be functioning fully
until a much later date. Without hearings, and with unhealthy working
conditions for members and staff, oversight will suffer.

The oversight challenge came into sharp relief last week as
Congress authorized $2 trillion in coronavirus relief. Congress legitimately
was very concerned about entrusting this enormous relief package to a president
who is incapable of sublimating his greed to the needs of the public. It,
therefore, included in the legislation extraordinary oversight mechanisms,
including a special inspector general in the Treasury Department to report
directly to Congress on Secretary Mnuchin’s distribution of the enormous pot of
money in the bill. The inspector general was tasked with reporting directly to
Congress. Not surprisingly, Trump announced in his signing statement he would
not honor that provision, but instead would permit the inspector general to
communicate only under presidential supervision. Trump’s statement makes it
clear that the select committee announced by Speaker Pelosi to oversee implementation
of the relief package will have to fight hard to obtain essential information
from the administration.

Congressional overseers hoped for significant help from the
Supreme Court in penetrating Trump’s wall. Two cases involving congressional
subpoenas for Trump’s financial information were scheduled for argument this
week and decision by the end of June, but the coronavirus forced the Court to
postpone the arguments indefinitely. One case involves a subpoena issued by the
House Committee on Oversight and Reform to Mazars USA, the Trump organization’s
longtime accountants, for financial documents. The second involved subpoenas
issued by the House Committee on Financial Services and the House Intelligence
Committee to Trump organization creditors, Deutsche Bank and Capitol One.

Trump and his organization sued to block the subpoenas,
asserting protection from investigation under an expansive view of the unitary
executive and a narrow view of congressional authority. All of the lower
courts, including the D.C. Circuit in Trump v. Mazars USA and the Second
Circuit in Trump v. Deutsche Bank, found for Congress.
The courts upheld Congress’s broad authority to subpoena information relevant
to its legislative responsibilities. Plainly, investigating the president’s
ethics could lead to new legislative restrictions, as could investigating his
debt. It is no bar to investigation that Congress might also uncover crimes.

In a third linked case,
Trump sought to block a grand jury subpoena issued by a New York state grand
jury to Mazars USA, seeking Trump’s tax returns and other financial information
in connection with a criminal investigation. The Second Circuit upheld the
validity of the subpoena.

The Court has not given any indication when it might hold these
arguments. Any substantial delay will insure that Trump’s financial information
remains secret beyond November.

Meanwhile, the operations of lower courts have been impeded
by the virus. For example, Judge Reggie Walton of the D.C. District Court stated
that he planned to review the unredacted Mueller report out of concern that
redactions in the public report may have been made in bad faith and AG Barr may
have exhibited a lack of candor in his public statements. He subsequently
announced that his review would be delayed substantially due to restrictions
imposed on the operation of the court because of the coronavirus. Upcoming
arguments, such as the en banc D.C. Circuit’s Scheduled April 28 argument to
determine whether former White House Counsel Don McGahn must testify before
Congress, hover in an uncertain future.

The Trump administration knows that it benefits from delay. Its
consistent strategy has been to throw every conceivable theory of immunity at
overseers, knowing that many are specious, but forcing Congress and courts to
take time to litigate them. That approach, no doubt, will continue as Congress
tries to track the administration’s use of relief money.

The administration’s defenses will grow even more desperate
as it tries to fend off Congress’s necessary efforts to investigate the
administration’s disastrously inept response to the impending pandemic. The president
will understand that his reelection depends almost entirely on the public’s
perception of his response to the virus and will fight desperately to conceal
the facts and rewrite his role. His lawyers can be expected to question the
authority of Congress and assert far-reaching privilege to protect presidential
communications and deliberative process material.

Congress, even though working under serious constraints,
must not shy from its duty to uncover the full story, without which we cannot
be prepared for the next stages of this pandemic and future health crises that
surely will come. Courts, too, must not retreat from their role in refereeing
disputes between the executive and Congress. Without their intervention, Trump’s
stonewalling will harm the country.

The bottom line is that the pandemic has impeded severely the work of the co-equal branches of government essential to imposing accountability on the President. Congress and the courts must do everything in their power to prevent this horrible disease from further undermining their roles in checking an executive determined to remain unaccountable.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.