Impeachment Inquiry

Wall Street Journal

Politics

Impeachment Inquiry 

Challenges Balance of Power in Washington

Previous efforts have transformed the relationship between Congress and the Presidency

WASHINGTON—The widening conflict between the Democratic-led House of Representatives and the Trump administration could alter the balance of power between Congress, the presidency and the courts for years.

The nation’s three previous presidential impeachment efforts had the effect of reshaping and redistributing institutional power in Washington, even if they didn’t force a president from office. If history is any guide, the looming clash between the House and President Trump over his interactions with Ukraine will likely have reverberations far beyond the current moment.

The failed removal of Andrew Johnson in 1868 safeguarded the presidency’s primacy in directing the country’s affairs. Less than a decade after his acquittal in his impeachment trial, Congress repealed the very law he had been accused of violating. After Richard Nixon resigned in 1974 as he was facing impeachment, Congress emerged empowered, passing a host of new laws to promote ethics in government—including new campaign-finance and open-government laws and creating the office of a special prosecutor called the independent counsel.

Lawmakers in both parties let the office of the independent counsel law lapse after Bill Clinton’s impeachment; eight independent counsel investigations during his administration, including the one leading to his impeachment, had dogged his time in office. Later, many other Watergate era-reforms, especially on campaign finance, would be eroded by the courts.

Whatever happens in the impeachment investigation of Mr. Trump, similar long-term consequences—like new legislation or court rulings—are likely to reshape Washington in ways small or major. The thicket of legal and constitutional fights swirling around the White House raises questions about power, authority and legitimacy that have never been definitively answered.

What is on the line for Congress in the current showdown is its institutional power to hold a president accountable.

“The actions taken by the President over the past two weeks show a defiance of our Founders, with a total disregard for their wisdom and the U.S. Constitution,” House Speaker Nancy Pelosi wrote last week to fellow Democrats. “President Trump must know that no one is above the law.”

Even before beginning an impeachment inquiry, House Democrats had brought the full institutional muscle of Congress to bear in investigating Mr. Trump—using a half-dozen committees to probe nearly every facet of his White House, his campaign and his business empire. They have issued subpoenas, gone to court and held government officials in contempt for refusing to testify.

Those efforts have been blocked at every turn, as Mr. Trump has questioned the basic legitimacy of nearly all of those congressional inquiries. Lawyers representing Mr. Trump or the administration have challenged the authority of lawmakers to subpoena documents and take testimony from witnesses, saying they lack any “legislative purpose” and ought not be enforced by the courts.

The House in response is suing to try to enforce some of its subpoenas—something Congress has had difficulty with in the past.

On impeachment, though, the Democrats leading the House have signaled that their appetite for a drawn-out court battle over subpoenas is limited, saying that they will make noncooperation an impeachable offense.

They have received almost no cooperation from House Republicans, who have stuck by Mr. Trump almost to a person.

And a White House statement last week accused the Democrats of “violating civil liberties and the separation of powers, threatening Executive Branch officials with punishment simply for exercising their constitutional rights and prerogatives.”

To some degree, previous Congresses were able to overcome partisanship—especially during Watergate. While Mr. Clinton was largely successful in keeping his party in line behind him, he saw a handful of Democratic defections in the House. President Nixon’s erosion of support among Republicans as the Watergate scandal unfolded is what convinced him to resign.

But the divide between the parties has grown more rigid, and hardball stances on both sides have led to unmapped constitutional territory as the House considers the most serious of all political remedies against a sitting president. Democrats have suggested Mr. Trump’s refusal to cooperate at all with Congress is itself an impeachable offense—obstruction of the inquiry.

In addition, many of the big constitutional questions raised by the showdown between Mr. Trump and the House have been taken to the third branch of government, the courts. Judges have rarely had to answer many of the questions that Mr. Trump and Congress are asking of them in a flood of litigation over everything from the president’s tax returns to whether witnesses have to show up and testify.

Historically, the judiciary prefers to avoid these types of disputes, seeing them as political fights to be sorted out by elected officials. In addition, Congress and the executive branch have in the past tried to accommodate each other’s requests rather than litigating.

But increasingly federal judges are being asked to decide questions about the relations between Congress and the White House—and, in some cases, they are starting to provide answers.

The courts are grappling with an escalating array of questions. Should subpoenas for testimony and documents from executive branch officials be enforced, and how? Can grand jury material be turned over to Congress? Is the president immune from criminal investigation while in office?

On Friday, an appellate court in Washington, D.C., ruled that Congress had the right to subpoena Mr. Trump’s accounting firm for eight years of his financial records, a win for lawmakers but a decision that likely will be appealed to the Supreme Court.

“If you go to court, you could lose and get a judicial ruling not just against you in the present but for all time. And that’s a big risk,” said Michael Gerhardt, a professor at the University of North Carolina School of Law. Mr. Gerhardt testified before Congress as an expert during Bill Clinton’s impeachment and has recently written a book on the subject.

That happened during Watergate over the question of executive privilege—a legal doctrine that allows the White House to withhold information to promote candid and frank discussion among advisers and to protect national security.

In the landmark case United States v. Nixon, the Supreme Court ruled that executive privilege couldn’t be used to shield information from a prosecutor investigating a crime. That precedent was a major setback for the Nixon administration, which then turned damaging tapes of conversations over to a special prosecutor. But it has never settled the question as it relates to Congress, including during an impeachment investigation or trial.

The Nixon-era Justice Department looked at the issue in 1974 and concluded the legal precedents on executive privilege and impeachment were “meager, confused and inconclusive.” They suggested that a presidential refusal to comply with a congressional subpoena during an impeachment trial could spark “a constitutional confrontation of the highest magnitude,” the department said.