The Slow Motion Constitutional Crisis

It’s been a month since I posted about the second act of the three-act play that is the Trump presidency, which I suggested would be marked by conflict and accountability. Actually, I said that conflict is inevitable and accountability is possible, and in the intervening weeks we’ve started to see what that looks like. Let’s focus on two examples: the non-release of the Mueller report and the looming battle over release of Donald Trump’s taxes to House Democrats. In both cases, the lines of conflict are clear, while prospects for accountability remain muddy.

Enough time has passed to have a clear sense of the administration’s Mueller strategy. With the aggressive support of William Barr, the new attorney general with an outlying view of executive power and a history of making presidential scandals disappear, the president has settled on a strategy of claiming total vindication on charges of conspiracy and obstruction of justice while preventing the public and congress from seeing the report on which these claims are based. Like everything else this administration does, it is a public relations rather than a legal strategy. Barr swiftly produced a skimpy document claiming to summarize key findings in the Mueller report, placing a few cherry-picked words in the context of his choosing to exonerate Trump on conspiracy and obstruction charges without stating if Mueller’s decision not to prosecute on conspiracy means he found no evidence of one, and even though Mueller did not reach a conclusion about obstruction. The president and his allies then misrepresented the Barr memo to claim Mueller, not Barr, had exonerated Trump on everything, hoping to repeat the “witch hunt” mantra enough to cast doubt on any contrary information that might eventually flow from the Mueller report’s release. In the meantime, Barr has shown none of the urgency to release the report that he exhibited in pushing out his summary, and may be filleting the report with extremely generous standards for redactions. The longer he takes, the more the administration’s framing becomes accepted conventional wisdom.

This predictably has led House Democrats to push back with deadlines of their own and subpoena threats, setting up a conflict that’s going to play out over the coming weeks. House Judiciary Chair Jerry Nadler is demanding the full report and all underlying documents, and is ready with subpoenas if Barr does not deliver. The whole thing is likely to end up in the courts, where House Democrats have a strong hand to play as a coequal branch of government charged with oversight responsibilities, and that’s where the danger of a constitutional crisis looms large. A president who avoids accountability will not readily give in to court-ordered demands to surrender incriminating evidence to those he regards as his adversaries. We do not know how damning the Mueller report is, but we know from the Barr memo that it contains evidence of obstruction and it may also contain evidence of collusion that falls short of the level required for criminal prosecution. What happens if Trump just says no?

A smilar dynamic is developing over Trump’s tax returns, which have been a red line for him since the 2016 campaign. House Ways and Means Committee chair Richard Neal has formally asked the IRS to turn over six years of returns under a law empowering his committee to request the tax documents of any citizen. The administration, through Acting Chief of Staff Mick Mulvaney, has said it’s never going to happen. This also sets up a conflict that will likely be resolved by the courts, one in which Neal and the House congressional leadership are relying on the unambiguous wording of the law (which instructs the Treasury Department to furnish the returns to the committee upon written request), while the administration is again waging a public relations campaign to dismiss the Democrats’ efforts as political grandstanding. The administration may feel it can tie up the matter until after next year’s election, or win a narrow majority in the Supreme Court, but it is not out of the question that at some point they will be instructed to turn over the returns. Then what?

Trump’s tax returns are a red line for a reason. They offer a window to his business relationships, his net worth, his debts and obligations, and the integrity of his tax history — meaning they threaten his brand and his livelihood, and may reveal as much if not more about his entanglements with foreign adversaries than the Mueller report. Does anyone think he would hand them over because of a court order? Like Nixon with the Watergate tapes, he would be sealing his fate. Nixon handed over the tapes (minus a mysterious eighteen-and-a-half minutes) following a unanimous Supreme Court ruling because his political support had collapsed. If faced with similar circumstances, Trump will certainly have the support of his base and his party. Is there any reason to think he wouldn’t just say no?

This is why we are in the early stages of a slow rolling constitutional crisis, between House Democrats with subpoena power and a president who values survival above all else. It is why conflict is an inevitability and accountability only a possibility.

Then again, the story might take an unexpected turn. The Democratic-controlled New York State legislature is considering a law that would permit the House Ways and Means Committee to request Trump’s New York State tax returns if efforts to secure his federal taxes fail. Plot twists sometimes come from the unlikeliest of places.