What can’t executive power do? If you ask the Trump administration, the answer seems to be almost nothing.
Consider just the news Monday night. We know that the acting Director of National Intelligence Joseph Maguire — who was only installed in his position because President Donald Trump forced the rightful successor, Sue Gordon, to resign — is withholding a whistleblower’s report that has been deemed by the inspector general to be both “credible” and “urgent.”
Maguire is refusing to turn the report over to Congress, despite his legal obligations House Intelligence Committee Chair Adam Schiff (D-CA) has revealed. He claimed it is supposedly “confidential” and related to “potentially privileged communications.” Maguire said that he is taking his orders to withhold the material from a “higher authority.”
Well, the only person the DNI reports to is the president. Other evidence, as former DOJ official Harry Litman argued, suggests that the whistleblower’s claims relate directly to the president or his inner circle.
But Maguire doesn’t actually have a choice in the matter. The law requires, in these circumstances, that the whistleblower’s complaint goes to Congress. Litman said that this law has never been violated before, and it undermines the entire point of having both whistleblower protections and inspectors general. So apparently, under direction from the White House, the DNI is blatantly flouting written statute.
What could be so important that the White House would make such a demand and the DNI would comply? We don’t know, and we can’t. That’s the claim the Trump administration is making. That it has the authority to just deny to Congress what it has a legal right to — with no external review. Schiff has subpoenaed the whistleblower complaint, and he is seeking to force Maguire to be more forthcoming — but for now, we have no more insight into the matter, because that’s how Trump wants it.
At the same time, the White House has directed Corey Lewandowski, the president’s former campaign manager who never worked in the administration, “not to provide information about such communications beyond the information provided in the portions of the [Mueller] Report” as the House Judiciary Committee prepares to interview him in its de facto impeachment inquiry. This is an absurd and baseless demand.
“The White House has no legal authority to ‘direct’ a private citizen who has never served in the Administration to refuse to answer any questions from Congress about anything,” said Daniel Jacobson, a former lawyer in the Obama White House. “This is lawless.”
The White House has already pushed executive privilege to outrageous limits, using the claim to block testimony from numerous witnesses in relevant in the House Judiciary Committee’s investigation with little justification. But by trying to claim the president’s conversations with someone outside the administration are privileged, the Trump administration has truly descended into preposterous territory.
The upshot of all these moves is simply to leave the president and his conduct unreviewable. People inside the administration can be silenced; subpoenas of outsiders who witnessed presidential misconduct can be rendered moot. Special Counsel Robert Mueller seemed to have real power to challenge the authority of the president, but he never even tried to subpoena Trump for an interview, and ultimately he decided he was barred from even concluding that Trump had committed a crime. That determination, Mueller said, is Congress’s responsibility. But the Trump administration thinks it can use its power to block lawmakers from fulfilling that responsibility.
It’s not just the Intelligence and Judiciary Committees getting stymied. The House Ways and Means Committee, which has sought Trump’s tax returns — returns it has every legal right to see — has been blocked by the administration claiming even more executive discretion, again flouting the written law.
Democrats are fighting this stalling tactic through the courts — though not particularly hard. And they believe that Trump will be able to delay the release of his tax returns until well after the 2020 election.
Ultimately, the courts do still have the power to constrain Trump. The Supreme Court thwarted his attempt to warp the 2020 census to benefit Republicans by including a citizenship question. But the courts are slow, and the White Hosue continues to use this fact to its advantage.
And what happens if Trump prevails in 2020, and is thus further emboldened? Republicans will still refuse to impeach, of course, so his power grabs and claims to authority could become even more brazen. He won’t be worried about re-election anymore — just preserving and protecting his power.
It’s a disturbing pattern to watch unfold, and it sets dangerous precedent for the future, even if Trump himself is undone.