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Explainer: We're in the Midst of a Real Constitutional Crisis, But What Does That Mean?

By Dustin Rowles | Politics | May 8, 2019 |

By Dustin Rowles | Politics | May 8, 2019 |


We have heard a lot about “constitutional crises” over the course of the Trump Administration, and it always sounds very alarming and ominous, but here’s the thing: We are currently in the midst of a Constitutional crisis. The good news is, the government hasn’t collapsed. The bad news is, if this crisis continues, it may irreparably f**k up our Democracy.

A Constitutional crisis basically just means that we are in a predicament that the Constitution cannot solve. That’s what’s going on now between the House of Representatives and the Trump Administration over the House’s attempts to get the unredacted Mueller report (and the underlying evidence); compel William Barr and Don McGahn to testify; to get Trump’s tax returns; to get Trump’s bank records from Deutsche Bank; and to compel Carl Kline to testify in regard to security clearances. There may be other examples, too, but the gist of it is: The Trump Administration is blanket refusing subpoenas from Congress.

Now, the Constitution does give the House the power to compel documents and testimony from the executive branch for legitimate legislative reasons. Meanwhile, the Constitution also gives the President and the executive branch some power to shield testimony and documents behind “executive privilege.” Right now, Congress is essentially asking for a lot of information for what it feels are “legitimate legislative reasons,” while the President is withholding all of these documents and testimony by either citing executive privilege (in the case of Don McGahn and the unredacted Mueller Report) or suggesting that there is no legitimate legislative reason for these requests, i.e., Congress is using its subpoena power to attack Trump politically.

And the thing is, I know we as Democrats see this issue as very black-and-white, but it’s not as black-and-white as you might think. Is there a legitimate legislative reason for all of these subpoenas? Well, sure. Is the legitimate legislative reason the real reason behind all of these subpoenas? Come on, what do you think? We can think of a legitimate legislative reason to request Trump’s bank records, but is that really why we want to see Trump’s bank records? Meanwhile, the President keeps citing executive privilege where executive privilege has obviously already been waved.

Now the two sides are in something of a standoff, and this is where the Constitutional crisis comes into play: There’s not really a mechanism within the Constitution to deal with this standoff. To wit: Congress has requested the full unredacted Mueller Report. William Barr has refused to provide it. Congress is threatening to hold Barr in contempt. Barr is threatening to shroud the entire Mueller Report behind executive privilege.

Therein lies the Constitutional crisis: Say the House votes to hold Barr in contempt (and the House does not need the Senate to go along here; one chamber of Congress is enough to vote to hold someone in contempt). OK, so what does that mean? It’s a misdemeanor, punishable by up to a year in prison. But guess who gets to decide whether to charge the Attorney General for contempt? The Department of Justice, controlled by the Attorney General. You think the DOJ is going to prosecute its own boss?

Granted, Congress could exercise its contempt powers itself, but what are they going to do? There’s no holding cell in Congress. Are they going to tie Barr to a chair and make him listen to AOC read the Mueller Report? Congress has used its power to detain and imprison someone held in contempt before. Once. In 1935. But it seems unlikely that it will happen here because throwing William Barr in a House closet would probably blowback on the Democrats.

Basically, the next step after that is the court system. And of course, that will take months. Hell, it may not be resolved during Trump’s presidency, and what if Trump loses and the courts compel Trump to provide the documents and testimony via court order? Trump will defy the court order! Then we’re back to square one again.

What do you do if Trump defies a court order? Well, that is an impeachable offense, and the House could impeach Trump, and then it really would have a “legitimate legislative reason” to request all of these documents and testimony — the impeachment itself. Of course, the Democrats have been reluctant to impeach for political reasons, knowing that the Republicans will not convict. However, it may be the only way, ultimately, for the House to be able to compel all of this information.

The big Constitutional crisis that it creates, however, is to basically put this President and all future Presidents in the position of defying Congress, contempt orders, and court orders unless the House votes to start impeachment proceedings. Obviously, that would create not just a Constitutional crisis but Constitutional Chaos.

In the meantime, this may be the only action Congress — which holds the purse strings — can really enforce, but it’s probably toothless in the face of millionaire Trump officials, who are hardly going to miss their salaries.

(Stick around in the comments, where I suspect J.S. will provide us with further schooling on this issue.)