Executive privilege versus the power of Congress

President Donald J. Trump claims unlimited executive privilege: (a) to refuse any request to appear before Congress; (b) to refuse to turn over any requested documents, including his own tax returns; and (c) to forbid others to do so. 

The problem is:  Such claimed unlimited “executive privilege” is nowhere mentioned in the U.S. Constitution. Nor is it supported by any federal law. Nor by any Supreme Court decision. Nor is there any other official, legally binding statement of  U.S. policy  (such as the Department of Justice Policy Manual).    

Such unlimited executive privilege is simply a figment of the imagination of Donald Trump and a coterie of lawyers and loyal political supporters around him. It is what they wish were so, but isn’t. The actual governing law is quite different, as summarized by Wikipedia below :

“The Supreme Court has the final voice in determining constitutional questions; no person, not even the President of the United States, is completely above the law; and the President cannot use executive privilege  as an excuse to withhold evidence that is “demonstrably relevant.”    (By “demonstrably relevant” is meant relevant to a  felony criminal case or to a matter serving a potentially legislative purpose, such as  the need of Congress  to plug an actually abused  “tax loophole.”)

United States v. Nixon, 418 U.S. 683, was a landmark United States Supreme Court case in 1974 that resulted in a unanimous decision against President Richard Nixon, ordering him to deliver tape recordings and other subpoenaed materials to a federal district court. Nixon claimed that a sitting president did not have to comply, could not be investigated or indicted, and that whatever he did was right “because I did it.” Nixon was wrong. He had to resign to avoid impeachment.

Compare that with the actual existing law concerning the real, lawful, constitutional power of Congress to compel witnesses, demand documents, and punish any person, including the president, for obstructing the work  of the U.S. Congress:

“The courts have long reaffirmed Congress’ constitutional authority to issue and enforce subpoenas. Either house of Congress can vote to hold in contempt a witness who refuses to provide testimony or produce requested documents pursuant to a congressionally authorized subpoena.”  

Only a simple majority of the 435 member House is needed to support a contempt finding for one to be reached. After a contempt vote, Congress has additional powers to enforce and punish a subpoena  violation. The U.S. Supreme Court said in an 1821 case that “Congress has the “inherent authority” to arrest and detain any and all recalcitrant witnesses.”

 In the 1953 case of Jurney v. MacCracken, the Supreme Court held that the power of a House of Congress to punish a citizen who obstructs the performance of  the legislative duties of Congress is unlimited. Such obstruction includes failure to appear when called as a witness, or failure to submit requested documents, for which the offender may be cited for contempt. 

In the specific case of tax returns, the 1924 federal law and current tax code authorize Congress to request the IRS for “anyone’s” tax return information, and provides that “the Secretary of the Treasury ‘shall furnish’ the information on the  request of the Chairman of the House Ways and Means Committee or the Senate Finance Committee.”  Failure to comply may result in a congressional vote of contempt of Congress leading to punishment, which may include arrest and imprisonment.  

Article I § 2 of the United States Constitution  gives the House of Representatives the sole power to impeach (make formal charges against civil officials for wrongdoing) and Article I § 3 gives the Senate the sole power to try impeachments. This can lead, of course, to removal from office.

The only legal way this can be accomplished is by the (politically voted) impeachment process.  “The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of,  treason, bribery, or other high crimes and misdemeanors.” This does not preclude subsequent criminal indictment, prosecution, trial, conviction, sentencing and incarceration in prison after leaving office.

The laws on congressional powers to call for and subpoena witnesses and documents, hold persons  in contempt of Congress, punish those who refuse, and in the case of civil officials, impeach them, are clear and unequivocal. Trump’s claim of unlimited “executive privilege” has no legal basis.  

In fact, Trump’s actions constitute further “witness tampering” and “obstruction of justice.”

Anthony Piel is a former director and general legal counsel of the World Health Organization.