There is a looming constitutional crisis but it’s not about Mueller report redactions

House Speaker Nancy Pelosi (D. Calf.) declared yesterday that the country is in a “constitutional crisis.” But she made President Trump’s assertion of executive privilege as to the Mueller report redactions the face of the crisis when in fact, it’s far from a crisis.

The real constitutional crisis is Trump’s vow to fight “all the subpoenas” served on his administration by House Democrats, which threatens the vital checks and balances in the constitution.

{mosads}Assertions of executive privilege are a chronic but manageable feature of the American government. Every president since Eisenhower has asserted a claim of executive privilege at least once. President Clinton did it 14 times. Presidents George W. Bush and Barack Obama asserted executive privilege in response to congressional subpoenas concerning the alleged politically motivated firing of United States Attorneys and the “Operation Fast and Furious” scandal, respectively. Neither was considered a constitutional crisis and both were eventually resolved without a threat to the constitutional system.

But none of these presidents ever vowed to fight all subpoenas from a legislative chamber controlled by the opposing party. Our constitutional system is a delicate gyroscope that depends on balancing mechanisms, including separation of powers, judicial review and checks and balances, to keep from toppling over. Checks and balances simply means that, as James Madison explained in Federalist 51, “ambition must be made to counteract ambition.” Pitting the executive and legislative branches against each other was the Framers’ way of preventing one or the other from running amuck.

Congressional power to investigate the executive branch is central to its role as a check on a president and his administration. This is no “norm” that Trump might upend — it’s at the heart of the constitution. Congress cannot exercise its constitutionally enumerated authority to enact all “necessary and proper” laws, appropriate funds, raise and support armies, and regulate commerce, unless it can obtain information from the executive branch through the use of subpoenas and compelled testimony.

Consider just some of the executive branch scandals or failures that became the subject of congressional oversight investigations: the terrorist attacks of September 11, 2001; the Iran-Contra affair in 1987; intelligence agency abuses in 1975-1976; and, of course, Watergate in 1973-1974. How far would those investigations have gotten, and where would our country be today, if presidents had successfully stonewalled them?

It’s possible that cooler heads in the White House (if any are left) or among congressional Republicans will talk Trump down. But if he fights “all the subpoenas” Trump may be making two bets. The first is that the public will be confused as to whether his fight with Congress is just about the Mueller report redactions and executive privilege. And that really doesn’t sound like a crisis because, after all, the report was produced albeit in redacted form, virtually all of the obstruction section was un-redacted, and special counsel Robert Mueller appears likely to testify and fill in some of the missing information. To the public, redactions are what lawyers fight about.

{mossecondads}Trump’s second calculation is that he can leverage his support in the Republican-controlled Senate into forcing the House Democrats to make a terrible choice. If Democrats pull the impeachment trigger, Republican senators will almost certainly acquit Trump and he could emerge even stronger. Or, Democrats can abandon checks and balances. 

True, House Democrats can mount a court challenge to assert their well-grounded oversight authority. But such a court challenge could take years. No one should count on the Republicans in the Senate, who are more lapdogs than watchdogs when it comes to Trump, to exercise effective oversight in the meanwhile.

An American government without effective legislative oversight of Trump’s conduct, programs and policies, now, that’s really a crisis.    

Gregory J. Wallance was a federal prosecutor during the Carter and Reagan administrations. He is the author most recently of “The Woman Who Fought An Empire: Sarah Aaronsohn and Her Nili Spy Ring.” Follow him on Twitter at @gregorywallance.