Pelosi Declares Nation Is in a ‘Constitutional Crisis’

The standoff between the Trump administration and Congress is approaching a constitutional impasse. We consider what could happen next.

Hosted by Michael Barbaro; produced by Eric Krupke and Theo Balcomb, with help from Alexandra Leigh Young; and edited by Paige Cowett and Marc Georges

michael barbaro From The New York Times, I’m Michael Barbaro. This is “The Daily.” Today, the House Judiciary Committee votes to hold the attorney general in contempt of Congress for refusing to release the full Mueller report. Nothing is likely to happen. Why Congress is running out of options for how to investigate the president. It’s Thursday, May 9.

archived recording 1 Judiciary Committee will please come to order. [INAUDIBLE] being present —

michael barbaro Adam Liptak, what was the mood at this meeting of the House Judiciary Committee on Wednesday?

adam liptak It was tense. Chairman Nadler was very unhappy with the administration’s general attitude toward complying with requests for information from Congress.

archived recording (jerrold nadler) As a coequal branch of government, we must have access to the materials that we need to fulfill our constitutional responsibilities in a manner consistent with past precedent.

adam liptak The House Democrats have, of course, asked for testimony from Bob Mueller the special counsel, William Barr the attorney general, Don McGahn, the former White House counsel and all kinds of documents, including tax returns and business records of President Trump, and most pointedly, at the moment the Mueller report and the documents underlying it.

archived recording (jerrold nadler) The Mueller report is no ordinary run of the mill document. It details significant misconduct involving the president, including his campaign’s willingness and eagerness to accept help from a hostile foreign government, numerous misstatements, if not outright lies concerning those acts and 11 separate incidents of obstructive behavior by the president that more than 700 former prosecutors have told us warrant criminal indictment. If Congress is not entitled to the full unredacted Mueller report, one must wonder what document we would be entitled to.

adam liptak And on the other side, a categorical refusal to cooperate at all by the executive branch.

archived recording (donald trump) Well, we’re fighting all the subpoenas. Look, these aren’t like impartial people. The Democrats are trying to win 2020.

adam liptak So there are these enormous requests from the house that have been met so far by the administration with a blanket refusal to engage, which legal scholars say is unprecedented. And then Wednesday morning, President Trump invoked executive privilege over the entire Mueller report and the documents underlying it, which, again, is a kind of maximalist position.

archived recording (mike johnson) This is not about seeking the truth as we’ve heard this morning. It’s about raw partisan politics. Our Democrat colleagues have weaponized our critical oversight responsibilities. And moving today to hold the A.G. in contempt is not only premature, unprecedented and unwarranted. Frankly, it is shameful. I think, we believe, the American people deserve better.

adam liptak So what you’re hearing at the hearing is the opening salvo in what looks to be quite a war between two branches of government.

archived recording (jerrold nadler) Our fight is not just about the Mueller report. Our fight is about defending the rights of Congress as an independent branch to hold the president, any president accountable. This is unprecedented. If allowed to go unchecked, this obstruction means the end of congressional oversight.

michael barbaro Adam, what does it mean for the president to assert executive privilege in the way that he did on Wednesday?

adam liptak So executive privilege is kind of a mushy concept. It’s not in the Constitution, but the Supreme Court has said that there are at least some kinds of things that the president is allowed to keep secret, typically, his consultations with his closest staff so he can get candid advice, stuff relating to national security to his duties as commander in chief. There’s a zone of privacy the president has, even against a legitimate request from Congress. But here, in applying it to the Mueller report, which doesn’t fit neatly with any of the things I’ve just sketched out, but was in fact an investigation commission to be an investigation of the president, executive privilege doesn’t fit that concept very neatly at all. Now their assertion here was tentative. They called it protective. They say they may still come back, so there’s some play in the joints and some creativity going on. But the general attitude is — and this is consistent with what the Trump administration has been saying in all kinds of settings — is that you, Congress, get nothing.

michael barbaro And so the administration is basically arguing that this concept of executive privilege applies not just to private conversations that the president has, advice he’s given, that kind of thing, but basically to anything, at this point, related to the Russia investigation that Congress might want get its hands on.

adam liptak More than that. Its basic position is maximalist, totalist, that whatever we know and you don’t know, we can keep from you and we’re allowed to keep secrets.

michael barbaro Even if it’s requested by subpoena.

archived recording (sarah sanders) Chairman Nadler is asking the attorney general of the United States to break the law and commit a crime by releasing information that he knows he has no legal authority to have. It’s truly outrageous and absurd what the chairman is doing, and he should be embarrassed that he’s behaving this way.

adam liptak They think these subpoenas are illegitimate tools of political harassment and not consistent with what Congress ordinarily issues subpoenas for, which is to help it carry out its constitutional responsibilities. And why Chairman Nadler is so unhappy is because he can see that we are on the precipice of a constitutional impasse, where Congress tries to do what it needs to do, which is to gather information to fulfill its responsibilities, and is being met with a wholesale Stonewall from a presidential administration. And that, as far as I can tell, is unprecedented.

michael barbaro You keep using that word, unprecedented. Just how unusual is it for any White House to basically put up a wall when it comes to a broad set of issues and say you’re just not getting anything from us when it comes to this subject?

adam liptak Skirmishes between Congress and presidential administrations are commonplace. But as far as an administration saying, there’s no subpoena we’re going to comply with, we’re going to fight all the subpoenas, you get nothing, that seems to me unknown in the history of the United States.

michael barbaro O.K., so once executive privilege is invoked in this way, and basically the Trump administration walls off all things Russia, Mueller and this entire episode from Congress and its investigations, what are the options for Democrats if they want to get all the things that they’re asking for: The unredacted Mueller report; compelling Don McGahn, the former White House counsel, to testify; forcing Bob Mueller to come before these committees; getting the Treasury Department to give up the president’s tax returns; to carry out all these investigations that it wants to. How does it now do that in the face of this kind of resistance?

adam liptak So the Democrats have four basic options. Back in the day, what they would do is send the Sergeant at Arms and detain the person they want to testify and not let him out of the pokey — (MICHAEL LAUGHS) Presumably in the basement of the Capitol until they’re prepared to testify, but that method has not been used since 1935.

michael barbaro And just to be clear, Adam, this is not a reference to your generation, but the pokey is the prison.

adam liptak (LAUGHS) Yeah, the pokey is a detention cell, yes.

michael barbaro Got it. O.K. So that’s number one, is extremely unlikely.

adam liptak I don’t see that happening.

michael barbaro O.K., so what’s the second option?

adam liptak So the second option is to hold a witness in contempt and that’s what the Judiciary Committee did on Wednesday to Attorney General Barr. They said that not turning over the Mueller report violated a legitimate subpoena and constituted contempt. The full House is likely to vote the same way. And then the next step, ordinarily, is to go to the Justice Department and say, hey a crime’s been committed, you guys should please prosecute the witness for criminal contempt.

michael barbaro But wait, that’s complicated, because Bill Barr runs the Justice Department.

adam liptak Yeah, so that’s an interesting idea. But it’s never going to happen, right? Because D.O.J. — and this is not a Trump D.O.J. idea only, this has happened in many earlier administrations — takes the view that it’s not going to cooperate in a congressional request to try to go after executive branch officials for contempt.

michael barbaro So if the Department of Justice refuses to prosecute Barr, as is likely in this option, then what can Democrats do to get the unredacted report and everything else that it wants?

adam liptak It can go to court itself. It can file a civil lawsuit, ask a judge to order the executive branch or the witness to comply and that could result in a contempt of court citation, and the courts will make judgments about who’s right.

michael barbaro And what argument would Congress make and this third option if they go to court?

adam liptak Congress would say — and would have a lot of Supreme Court precedent supporting it — that its right to information is quite broad. The Supreme Court has repeatedly said that Congress can’t do its job well without access to information. It can’t legislate wisely. It can’t perform its oversight responsibilities. As a general matter, the starting proposition is that Congress is entitled to information. It supervises, in many respects, the executive branch. The executive branch executes what Congress tells it to. So in the ordinary scheme of things, absent some privilege or other good argument, Congress does and should win usually.

michael barbaro So in this argument, Congress would be rejecting the idea, proposed by the Trump administration, that under executive privilege it can keep all of these matters secret, because it will argue Congress has this broad authority to get this information to do its oversight work.

adam liptak Right. And we know from the Nixon tapes case, that executive privilege exists. That was the case, of course, where President Nixon invoked executive privilege to try to withhold tapes of himself in the Oval Office talking to aides from a criminal inquiry. The court said, yes, that’s right, such a thing exists, but it’s not powerful enough in this case to allow you to withhold those tapes from a criminal inquiry. But it’s not categorical. It’s a balancing test, and you take account of why the information was sought, you take account of why the administration thinks something needs to be kept secret and you do some balancing. And while it’s hard to predict what any court will do, and it might well go to the Supreme Court, Congress starts out with the better of the argument most of the time.

michael barbaro Because of its place in the Constitution.

adam liptak Yes, and because the Court has recognized over and over again that they have a legitimate need for information. They can’t do their jobs without it.

michael barbaro O.K., so if there’s Supreme Court precedent for this argument, what is likely to happen if House Democrats pursue this court option?

adam liptak Well, the one thing we know pretty much for sure is that it will take a long time. Courts mull over these questions carefully. There are substantial arguments on both sides. And the most recent example of this is a subpoena to Attorney General Eric Holder, President Obama’s attorney general, for some documents concerning a botched gun buying program called “Fast and Furious,” where he was held in contempt. And the lawsuit over that took years. It was ongoing even after the Trump administration took office.

michael barbaro So basically, that option is so slow that it might pass the point of being relevant for Democrats. And of course, it might not even result in the Democrats getting what they want from the courts.

michael barbaro O.K. So if what the Democrats did on Wednesday is likely not to lead anywhere, and if the next option, which is go to the courts, is also not all that productive or fast, what other options are left?

adam liptak The option the Constitution contemplates for a president who runs afoul of Congress is impeachment. And I want to unpack what I mean by impeachment a little bit, because people compress into kicking somebody out of office.

adam liptak What impeachment really means, for starters, is you can open impeachment proceedings and issue subpoenas in aid of those proceedings to figure out whether you actually want to impeach the president. Impeachment means to accuse him of wrongdoing, sort of like an indictment, and then if there is impeachment, it goes to the Senate for trial and possible removal. But opening an impeachment proceeding actually helps the House’s case, because while you could argue about whether a given subpoena for certain kinds of information helps them perform their legislative lawmaking duties, there’s really no argument that Congress is entitled to subpoena information to try to figure out whether the president ought to be impeached. So opening an impeachment proceeding and issuing subpoenas in aid of that proceeding heightens congressional power to obtain the information it wants.

michael barbaro So in the absence of impeachment proceedings being open, these subpoenas, they have a certain amount of power, but as you just explained, they can get swatted away. But once impeachment proceedings begin, those subpoenas are kind of turbo charged. They have a greater power than they did before.

adam liptak I agree with the second point. I don’t want to undersell the ordinary congressional subpoena which is a powerful tool and the courts ordinarily uphold them, but certainly a subpoena issued out of an impeachment proceeding has yet more power.

michael barbaro And why is that exactly?

adam liptak Because you can argue about we want to see his tax returns. Why? Because we want to enact good tax policy. You know, maybe. But at least that allows lawyers to argue about whether there’s a legitimate legislative purpose involved as a predicate for that subpoena. But there’s no argument that potential misconduct by the president is grounds for an impeachment inquiry and a subpoena in aid of an impeachment inquiry just has that much more power.

michael barbaro So once you open impeachment proceedings, you have much more leeway to subpoena people and documents. And you no longer have to justify them with any kind of legislative rationale in order to issue it. If you’re impeaching, you’re looking into the president broadly and in an investigative way. And so it’s no longer at all about legislation.

adam liptak That’s right. And there’s no question that considering impeachment is at the very core of one of the duties the Constitution assigns to the House of Representatives.

michael barbaro Got it. So impeachment in this sense just means that Congress has increased leverage and authority to investigate beyond what they ordinarily have, so there’s a scenario in which the Democrats open impeachment proceedings just to pry loose all these things that we’ve been discussing that they can’t seem to get their hands on right now, and they don’t really think about the possibility of removing the president at all.

adam liptak Right. So just as a prosecutor doesn’t wake up one morning and say I’m going to indict somebody, nor should the House think about impeaching the president till it’s gathered up all the information so it can make a sound and sober judgment and that investigation is part of the impeachment process. And subpoenas arising from that inquiry, as you were saying before, Michael, are turbo charged.

archived recording (nancy pelosi) I do believe that impeachment is one of the most divisive forces, paths that we could go down to in our country, but if the fact finding takes us there, we have no choice — but we’re not there yet.

michael barbaro All of that makes complete sense in the abstract, Adam. But we know that the Democratic leadership has been very reluctant to touch the subject of impeachment because although they must understand it to be a very powerful investigative tool, they also know that in the broader world it means that they have declared political war on the president, and that they would then be open to the accusation which has already been leveled at them; that they’re conducting a witch hunt and that this is an extreme step. So wouldn’t that likely discourage them from doing this?

adam liptak Yes. So the political calculations and the legal calculations are different. You almost have the sense that in his maximalist approach, President Trump is almost taunting the House into impeaching him.

archived recording 1 Are you worried about impeachment, Mr. President? archived recording (donald trump) Not even a little bit.

adam liptak Perhaps because he thinks it would be good politics for him and perhaps it would.

archived recording (nancy pelosi) Trump is goading us to impeach him. That’s what he’s doing. Every single day, he’s just like taunting, taunting, taunting, because he knows that it would be very divisive in the country, but he doesn’t really care.

adam liptak The last time we did that with President Clinton, those proceedings were not popular with the American public. So how the House approaches this question is a balancing act between its real desire to get information to which it thinks it’s plainly entitled, as Chairman Nadler was saying, but also not to step into a political trap that Democrats may be afraid will backfire.

archived recording (bernie sanders) If for the next year, year and a half, going right into the heart of the election, all that the Congress is talking about is impeaching Trump and Trump, Trump, Trump and Mueller, Mueller, Mueller. And we’re not talking about health care. We’re not talking about raising the minimum wage to a living wage. What I worry about is that works to Trump’s advantage.

michael barbaro So in this scenario, the president may be kind of goading House Democrats by saying no to everything they’re asking for into using this investigative tool of impeachment in ways that they’re not all that comfortable, knowing that it might backfire on them politically if they eventually turn to it out of frustration.

adam liptak Yeah, the political calculations are really complicated. So that kind of scrambles some of the legal arguments we were talking about.

michael barbaro Where does that leave the Democrats?

adam liptak Well, where that leaves the Democrats and the nation is at a real ugly constitutional impasse where our ordinary system of the separation of powers and checks and balances falls away, where you have one branch, Congress, with a legitimate right to information, another branch, the executive branch, taking a maximalist approach and saying, you get nothing, and that’s a dangerous place for the nation to be in.

michael barbaro I guess I’m surprised that there isn’t a fifth option because these scenarios that we have just outlined, they would all seem somewhat predictable. Courts just take time. The Department of Justice was never going to enforce a contempt charge against its own boss. And impeachment is a pretty extreme step. So that’s just it?

adam liptak It’s an election. Some of these matters maybe properly to be decided by the voters. They’re highly aware of these disputes, and soon enough, the American people will get to speak again.

michael barbaro Adam, I wonder if the framers ever anticipated that the House would ever choose to refuse the use of its biggest and most powerful tool when it comes to investigating the executive branch, impeachment, because it was worried about the way it would look because of the political consequences.

adam liptak I don’t think the framers imagined partisan politics. They were wary of what they called factions. They thought people would be loyal to their institutions, that Congress would take its responsibilities, both House and Senate, seriously to oversee the executive. And if they determined there was presidential misconduct, they would unite in first impeaching and then removing such a president. So this whole world in which we live in where one House is controlled by one party which sees the world one way, the other by the other, and that seems to inflect everyone’s constitutional responsibilities would be quite foreign to the founding generation.

michael barbaro But yet here we are.

michael barbaro Adam, thank you very much.

michael barbaro Now that the House Judiciary Committee has voted to hold William Barr in contempt, the full House of Representatives is expected to do the same in an upcoming vote, a move that the Trump administration called politically motivated and unnecessary. We’ll be right back.

michael barbaro Here’s what else you need to know today.

archived recording 1 The president and his administration has repeatedly shown a true hostility to the rule of law and presidential customs. Today we are sending a message. No one is above the law.

michael barbaro On Wednesday, lawmakers in New York passed an unusual set of bills that would allow congressional committees to seek President Trump’s state tax returns. The legislation, adopted by the Democratically controlled New York Senate, does not mention the president by name, but authorizes the state’s taxation department to release any state tax return requested by three congressional committees, all of which are now investigating Trump.

archived recording 2 Washington has failed to act on this issue. The administration is stonewalling the coequal branch of government. If they won’t do it, New York can.

michael barbaro The bill now heads to the New York State Assembly, where it is expected to pass and then to Governor Andrew Cuomo, who has vowed to sign it despite strong opposition from New York State Republicans, who called it a legally dubious partisan attack on the president.

archived recording 3 Maybe even for the president, there’s going to be a lot of collateral damage. Today it’s the president. Tomorrow it’s the rest of us.

michael barbaro And exactly one year after the United States withdrew from the Iran nuclear deal, Iran pulled out of major elements of the deal and threatened to quit the deal entirely in 60 days.

michael barbaro After those 60 days, Iran’s president Hassan Rouhani said that Iran would violate key terms of the deal by enriching uranium, unless European countries that signed the deal agreed to purchase its oil in violation of U.S. sanctions. That will force those countries to choose between Iran and the U.S.

archived recording (mike pompeo) I am confident that as we watch Iran’s activity that the United Kingdom and our European partners will move forward together to ensure that Iran has no pathway for a nuclear weapon system.