Rule of Law

OP-ED: Trump math: 1 + 1 + 1 = zero accountability

Earlier this month, Attorney General William Barr testified before the Senate Judiciary Committee about the Mueller report. About two weeks later, President Donald Trump’s personal lawyer Will Consovoy was in federal court arguing about congressional subpoenas. Given that these were different hearings in different settings involving different attorneys and different topics, it would be easy to ignore how statements made at these hearings relate to each other. But that would be a big mistake.

At these two separate hearings, Barr and Consovoy made distinct arguments that — were they both accepted — would create a system in which there would be virtually no way short of impeachment to hold a president accountable for his wrongdoing. And, of course, disabling Congress’s ability to investigate makes it that much more difficult to gather the evidence that would form the basis for impeachment.

So much for the fundamental precept that no one, including the president, is above the law.

First, consider Barr, who told the Senate Judiciary Committee that the president’s executive authority is so broad that he could stop a law enforcement proceeding if he concludes that it’s not well-founded. “If, in fact, a proceeding was not well-founded, if it was a groundless proceeding or based on false allegations,” Barr said, “the president does not have to sit there constitutionally and allow it to run its course. The president could terminate that proceeding and it would not be a corrupt intent because he was being falsely accused.”  Never mind the long-standing and well-established practice — recognized by individuals across the ideological and political spectrum — of limiting contacts between the White House and the Justice Department on specific ongoing law enforcement matters.

Second, consider Consovoy, who told U.S. District Court Judge Amit Mehta that Congress has no right to subpoena records of President Trump’s accounting firm because any attempt by Congress to determine whether a president was acting outside the law was “improper because it’s the job of law enforcement, not lawmakers.” Consovoy even went so far as to suggest that congressional investigation into Watergate and Whitewater might not have been appropriate. “That is still law enforcement,” Consovoy said.

And the following day current White House Counsel Pat Cipollone doubled down on Consovoy’s assertions in a letter he sent to the House Judiciary Committee, taking the position that Congress’s efforts to get the unredacted Mueller report and underlying materials are inappropriate. According to Cipollone, the Committee’s request is improper because, in part, he views it as “little more than an attempt to duplicate — and supplant — law enforcement inquiries.”

These are pretty rich statements, given that the Department of Justice has concluded that the president can’t be indicted while in office — and that conclusion compelled Special Counsel Mueller to avoid making a “traditional prosecutorial judgment” about whether a prosecution of the president should be initiated.

Moreover, the Supreme Court has repeatedly recognized that congressional oversight, which has deep roots in our legal and political tradition, is both fundamental to our system of government and extremely broad.

Barr’s, Consovoy’s, and Cipollone’s statements are troubling enough standing alone. Now let’s put them together. According to Consovoy and Cipollone, the U.S. Congress — a coordinate branch of government the Founders invested with the power to investigate — can’t investigate the president for wrongdoing he may have committed because that’s a job for law enforcement. But according to Barr, the president can shut down any law enforcement investigation into wrongdoing he may have committed as long as the president believes that he was being falsely accused.

None of this adds up — unless the goal is to make it exceptionally difficult to hold the president accountable to the law, no matter what he does. And that’s a huge problem.

Small wonder, then, that two different courts last week rejected the president’s arguments that Congress should not be able to exercise its oversight authority to subpoena records from accounting firms and banks. Judge Mehta — in his blockbuster ruling — emphatically rejected Consovoy’s arguments, writing that “[i]t is simply not fathomable that a Constitution that grants Congress the power to remove a President for reasons including criminal behavior would deny Congress the power to investigate him for unlawful conduct — past or present — even without formally opening an impeachment inquiry.”

President Trump may prefer not to believe it, but ours is a government of laws, not men.

If that means anything, it means that no one is above the law, including the president. But as Barr’s, Consovoy’s, and Cipollone’s statements, taken together, make clear, this administration would like to create a system in which the president is above the law — able to violate the Constitution and break the law at will so long as there’s not the political will to impeach him. And of course, frustrating the ability to investigate the president and expose abuses of power makes it that much more difficult to develop the bipartisan support that will often be necessary if a president is to be impeached and then removed from office.

That may be the system Trump wants, but fortunately for the American people, it’s not the system we have.

The President cannot shut down investigations into his own lawlessness. And, as courts are making clear, he cannot deny Congress the information it needs to investigate that lawlessness. And it doesn’t matter how many times the president or lawyers acting on his behalf say otherwise.