The last time Congress undertook impeaching a president was more than 20 years ago. It began when independent counsel Ken Starr filed a report to the House Judiciary Committee, then controlled by Republicans. The report was generated after years of investigating President Bill Clinton, starting with Whitewater and ending with Monica Lewinsky.
Unlike special counsel Robert Mueller’s report, there were no congressional hearings and no subpoenas. All the House needed was the Starr report, which Republicans used as evidence to impeach Clinton on the charges of perjury and obstruction of justice in the Lewinski matter. Clinton was impeached by the House, but Senate Republicans could not muster the two-thirds majority needed to convict. During impeachment, Clinton’s popularity soared.
If the House considers the impeachment of President Donald Trump, given Mueller’s report on evidence of obstruction of justice, it could do so and nullify the president’s claim to executive privilege. The Supreme Court already ruled on the assertion when it ordered President Richard Nixon to turn over the Watergate tapes to Congress in 1974, noting that executive privilege does not give the “absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” But if the House is not going to impeach Trump, why battle in the courts to compel the production of unneeded evidence? The courts do not welcome these challenges. The Supreme Court has held in a case involving the assertion of executive privilege: “Once executive privilege is asserted, coequal branches of the Government are set on a collision course. This inquiry . . . pushes to the fore difficult questions of separation of powers and checks and balances. These ‘occasion[s] for constitutional confrontation between the two branches’ are likely to be avoided whenever possible.”
Going back to President George Washington, the extent of executive privilege has been resolved between the Congress and the president without court intervention. Neither political party is anxious to have executive privilege defined by a court, or by legislation, because both tend to support the privilege when they are in control of the presidency. If a court rules that Trump has a right to privacy on his personal financial transactions or that his advisers are immune from subpoenas, Congress would be forever limited in its oversight of any president. Conversely, if a court decides against Trump, future presidents will be hard pressed to assert executive privilege, which is why past presidents have been reluctant to test the privilege in court, and Congress steers clear of definitions.
The only time Congress flexed its muscles to enforce and define its powers came after Teapot Dome, a bribery scandal involving President Warren G. Harding’s Cabinet. When the administration ignored a congressional subpoena, the Supreme Court held in 1972 that the Senate had the power to arrest and detain a witness who refused to testify. Congress was infuriated that the Harding administration ignored its subpoenas and it passed legislation, now invoked by the House, giving subpoena power to review the tax records of any U.S. citizen. There is little doubt that the subpoena of Trump’s tax records ordered by Congress is validated by statute, and the courts are unlikely to interfere.
If the courts take jurisdiction of the matter — and they should resist the temptation — the lapse of time between decision and enforcement will bring us past the next presidential election, and no one will care. Also, impeachment of Trump by congressional Democrats would be politically disastrous. It would only embolden Trump’s claim to martyrdom, and none of his supporters would abandon him. Given the certainty that the Senate would acquit, undecided voters would think an impeachment proceeding to be a costly, distracting and vain pursuit.
An undefined “executive privilege” should never be allowed to stymie Congress of its defined constitutional power of oversight; however, if the Congress will not impeach, why continue with the hearings? Polling shows that a majority of voters believe Trump obstructed justice and they will have a chance to voice the effect of that opinion on election day.
Congress, instead, should address the rise of anti-religious bigotry, the weaknesses in our intelligence system, the high costs of health care and prescription drugs, the need to rebuild our infrastructure, repairs to our immigration system, and the other problems we face.
The time has come to move on.
Sol Wachtler, a former chief judge of New York State, is distinguished adjunct professor at Touro Law School.