None of this is easy. Presidents since George Washington have struggled with, and often angered by, the demands of Congress. During Trump’s first term as president, he went further, ignoring numerous letters and subpoenas, instructing officials and even individuals not to comply with requests for information, and adopting an aggressive interpretation of executive privilege. University of Kentucky law professor Jonathan Shaub, who served in the White House counsel’s office under Joe Biden, noted that the first Trump administration “pushed many existing doctrines to their limits.” Shaub added that when other administrations seek to negotiate with Congress, “Trump is basically saying, ‘No. This is all partisan warfare, and I’m going to bring out every weapon in my arsenal against you.'”
Given the Administration’s ability to fend off Congress, lawmakers may want to focus on Trump Administration allies outside government. Perhaps with that prospect in mind, the Justice Department’s Office of Legal Counsel issued an opinion in August holding that executive privilege could apply to the president’s conversations with the administration or advisers as long as those conversations or the president formally reflected. This maximal reading of executive privilege may stretch too far even for this Supreme Court; still, it could offer Trump’s associates a way to delay compliance while the issue is litigated.
House and Senate investigators tend to be more successful and faster in obtaining compliance from companies, especially public companies. Whitehouse observed, “It’s much more dangerous for a private entity to refuse to comply with a congressional subpoena than if you were a political actor and threw all of this into a purely political partisan context. It’s not necessarily purely executive versus legislative here.” Raskin elaborated on this point. “We can subpoena pardon brokers. We can subpoena people who are ripping off taxpayers in the private sector and working with people in government,” he said. “We also have a large number of whistleblowers who are coming forward to report everything from ongoing government contract fraud, to a $1.776 billion political slush fund, to peace commissions. People seem to have endured corruption and lawlessness. So we think we’re going to be able to get the information we need.”
“The first Trump administration broke new ground by obstructing Congress, but Congress still managed to get critical information,” Anello told me. “Even if the current administration follows the same approach, Congress is still likely to receive a wealth of information from people in the federal government and the private sector who want rigorous congressional oversight.” The prospect for achieving some oversight, however imperfect, beats the current reality of none. ❖