This Is How Democracies Die

It seems that our slow-moving, long-running constitutional crisis that began with the firing of James Comey or perhaps simply even earlier with the inauguration of President Trump is finally coming to a head. Attorney General Bill Barr has essentially blown off the House Judiciary Committee’s request for the full Mueller report. It now appears that Trump is trying to intervene with the House Ways and Means Committee’s lawful request to review his tax returns and administration officials are vowing that the tax records will never be turned over to the Democrats. In addition, the legality of Trump’s decision to reallocate already budgeted items for his border wall also remains in question. All of these issues are setting up serious constitutional clashes between the legislative and executive branches that will ultimately be decided by the Supreme Court.

If, and that seems like a bigger “if” every day, William Barr ever releases his redacted version of the Mueller report, we can be sure of two things. First, it will be far more damaging to Trump than Barr’s initial memo let on and in both areas of collusion and obstruction. The disconnect between Barr’s memo and the actual report will make everything he said in that memo suspect as well as the redactions in the report he actually delivers. Second, Democrats in the House will subpoena the full report without redactions. That will likely result in a court fight between Congress and Barr that will have to be litigated. It seems pretty clear that the Trump/Barr game plan is to hide as much as possible for as long as possible in the hopes that the demand for the full report will fade away over time and Barr’s initial interpretation will hold for as long as possible and that the litigation can be strung out beyond the 2020 election.

The request by the Ways and Means Committee to obtain Trump’s taxes would seem straightforward enough, at least from a legal standpoint. The letter of the law states that the IRS “shall” provide tax returns requested by the Committee. While the current request clearly has some political motivation, the Committee has taken the time to establish the legal groundwork for receiving Trump’s returns as part of a potential legislative effort. It is also clear that the Trump team has been preparing for this eventuality since the Democrats took the House. The President had McConnell fast-track his selection for the IRS Commissioner who coincidentally stated his belief that Trump should not release his taxes. The President has hired lawyers to try and fight the request, although the request technically has nothing to do with him personally. And, yesterday, Chief of Staff Mulvaney vowed that Democrats would “never” get Trump’s tax returns, “nor should they”. So, it appears that Trump is willing to go to the mat on this issue, prohibiting his administration for complying with the legal request from Congress and creating another constitutional battle.

Finally, after vetoing the Congressional resolution blocking Trump’s abuse of the national security emergency powers in order to build his border wall, Trump finally reallocated $1 billion of the military budget to begin to build 57 miles of fencing. Democrats in the House have announced their intention to sue in order to prevent this. The Pentagon reallocated the money “under a legal order from the Commander in Chief” but without consulting with or getting authorization from Congress which is what is usually required to “reprogram” appropriated funds. This, again, seems headed to the courts for litigation.

The Judiciary Committee’s effort to see Mueller grand jury testimony which will probably be redacted by Barr seemingly took a blow earlier this week with a remarkably well-timed decision from the DC Circuit Court of Appeals in an unrelated case that denied that the judge overseeing the grand jury had the inherent right to release grand jury testimony. That seemed to foreclose the Judiciary Committee’s ability to simply ask the judge for any grand jury testimony Barr redacts. However, one of the legal exceptions to releasing grand jury testimony includes a provision for a “judicial proceeding”. The Judiciary Committee’s work has traditionally fallen within that category. Similarly, there seems to be no legal basis for the IRS to refuse to produce Trump’s tax returns to the Ways and Means Committee. But it is clear that Trump is willing to litigate both, as he is intent on litigating the “reprogramming” of Congressionally authorized funds for his border wall.

In general, Trump appears to be willing to litigate almost every attempt at Congressional oversight in the hopes of dragging the court case out beyond the 2020 election or getting a favorable ruling in the lower courts or the Supreme Court. It appears that the Democrats are willing to let these initial suits that they have filed or plan to file play out in the courts as is.

The Democrats’ attempt to receive investigative material produced by Mueller and Trump’s tax returns could be greatly bolstered, however, if they were part of an impeachment process. The impeachment process carries far more weight than simple Congressional oversight and the introduction of impeachment proceedings would also expedite these cases through the courts to the Supreme Court in order to render a quick decision. That, however, runs counter to the desires of Democratic leadership who feel strict oversight is far more politically palatable than impeachment.

In all three of these cases, Trump is attempting to engage in an extraordinary abuse of power in claiming extraordinary executive power in order to stymy the will of the legislative branch. These are all serious constitutional breaches. And virtually all Congressional Republicans are acquiescing in those constitutional attacks. It would seem that Trump is intent on pushing his power to the limit until someone, the courts or Congress, stops him. And it also appears he would welcome the beginning of impeachment proceedings as he believes that would be perfect foil and actually help his re-election chances, secure in the knowledge that the Republican Senate will never convict him. That thinking will complicate Democrats’ ability to get the details of the Mueller report and Trump’s tax returns, especially if the Supreme Court ends up siding with the President, which is hardly out of the question with its current makeup.

So, even beyond these three cases, that is our larger constitutional conundrum, namely that the current President believes being the target of impeachment proceedings would actually benefit him politically. And Trump will continually try to provoke those proceedings with additional abuses of power until the 2020 election, perhaps even in defiance of the Supreme Court. When the chief executive has or creates the perverse incentive to violate or even dictate the law is one of the ways democracies die. We may farther down that road than we care to admit.

Originally published at on April 8, 2019.



Thoughtful discussions on politics and economics with sidelights in photography and astronomy.;;

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