Resisting the Resisters

Trump says no to House Democrat subpoenas.

“We’re fighting all the subpoenas,” President Trump declared Wednesday in response to the flood of House Democrats’ subpoenas engulfing his administration. “These aren’t, like, impartial people. The Democrats are trying to win 2020,” he added. Referring to the Mueller investigation, which took nearly two years to complete, the president said, “I thought after two years we’d be finished with it. No. Now the House goes and starts subpoenas. I say it’s enough.” In short, the president has decided to fully resist the political shenanigans of the Democrat resisters in Congress who have sought to delegitimize and hobble his presidency from the get-go.

President Trump cooperated fully with the Mueller investigation, waiving executive privilege. His administration turned over more than 1 million pages of documents. The president also permitted then-White House counsel Don McGahn, who had counseled President Trump not to cooperate with the Mueller investigation in the first place, to submit to over thirty hours of questioning by the Mueller team. The Mueller report concluded that “the evidence was not sufficient to charge that any member of the Trump Campaign conspired with representatives of the Russian government to interfere in the 2016 election.” With respect to a possible charge of obstruction of justice, the Mueller team laid out a series of worst-case scenarios and assumptions, relying extensively on Mr. McGahn’s testimony, but reached no definitive conclusion as to the president’s criminal liability.  The Democrats are not satisfied. The House Committee on the Judiciary has subpoenaed Mr. McGahn to testify on a broad range of matters already addressed in the Mueller report, as well as on matters that are the subject of pending judicial proceedings outside of the scope of the Mueller investigation.

President Trump intends to fight the McGahn subpoena on executive privilege grounds, in court if necessary. His lawyers will likely argue that the Democrats are seeking to use Mr. McGahn to plow over old ground for the sole purpose of harassing him and are also trying to use his testimony to elicit privileged information that was not covered in the Mueller report. However, the president risks losing this fight in court on the grounds that he may have already waived executive privilege. President Trump allowed detailed information regarding Mr. McGahn’s statements to the Mueller team, which the president did not try to stop Mr. McGahn from making on any privilege grounds in the first place, to be made public in the non-redacted portions of the Mueller report. Democrats' lawyers will argue that the president thus waived executive privilege with respect to Mr. McGahn's congressional testimony.

Nevertheless, President Trump should call the Democrats’ bluff.  He should force them to go to court to defend their fishing expedition with Mr. McGahn and with all their other investigations targeting the president. Very few cases involving such legislative-executive branch clashes over protection of confidential executive branch information have reached the courts. The president is on sound grounds to invoke his legal and executive privileges as aggressively as he can where he reasonably believes that the Democrat-controlled House committees are creating false pretexts in order to exact political revenge and help their presidential nominee in the 2020 election.

Thus, President Trump should stick to his guns and not allow Mr. McGahn and other current and former aides who have provided confidential advice to either the president himself, or to those within the executive branch who regularly interact with the president in connection with his deliberations, to appear before any House committee. Whether the matter involves congressional prowling into internal high level Trump administration deliberations leading up to its decision to include a question on citizenship in the 2020 census form, the president’s and his advisers’ deliberations leading up to his immigration policy and personnel-related decisions, or what the president discussed with his White House lawyers and advisers in responding to the Mueller investigation, the answer to House Democrat subpoenas should be the same. Resist the resisters. This will serve as a shot across the bow to the rabid partisans in Congress who seek to encroach on President Trump’s ability to effectively carry out his constitutional responsibilities.  

Even more egregious on the Democrats’ part, they are harassing him politically with subpoenas that have no legitimate legislative purpose when it comes to delving into his pre-presidency business and private concerns. The fact that no president is above the law does not mean that a president must forfeit the constitutional rights of every other person in America as the price for serving the nation as its president. That is exactly what the House Democrat snoopers are trying to do to President Trump.

For example, the president’s tax returns, especially those filed for years prior to when he took office, should be off-limits to Congress on constitutional grounds as an invasion of his privacy rights. House Ways and Means Committee Chairman Rep. Richard E. Neal (D-MA) is relying for his authority to request the president's returns on a statute that he claims provides his committee with broad investigatory powers, including the right to receive anyone's tax returns upon request. In one of his letters to the Internal Revenue Service purporting to further justify his request, Rep. Neal quoted very selectively from a Supreme Court case, Watkins v. United States, 354 U.S. 178 (1957), dealing with the scope of legitimate congressional inquiry during the McCarthy era. He characterized the Supreme Court decision as instructing “that Congress’s power to investigate is ‘broad’ and ‘encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes.’” True enough, but Rep. Neal left out the part of the decision in which the Court set limits on what constitutes a proper scope of an investigation for legitimate legislative purposes.

 “There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress,” the Supreme Court said. “Nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government,” the Court added. “No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress. Investigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible… The public is, of course, entitled to be informed concerning the workings of its government. That cannot be inflated into a general power to expose where the predominant result can only be an invasion of the private rights of individuals.”

These are the limits that the House Democrats are clearly overstepping. They are abusing their legislative oversight responsibilities by vengefully attempting to use bogus investigations of President Trump’s personal and business life even before he became president for the sole purpose of embarrassing him politically and helping his rival in 2020. Since the Democrats took charge of the House of Representatives, the inmates have been running the asylum. It is time to put an end to this madhouse.

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