Are we in a Constitutional Crisis?
In light of the ongoing subpoena fights between Congress and the president and the House Judiciary Committee’s vote to hold Attorney General William Barr in contempt for refusing to release the full Mueller report—this episode addresses the questions: Are we in a constitutional crisis? Or are these normal disputes occurring within our constitutional system? And have we been here before? Adam Liptak of The New York Times and Keith Whittington of Princeton University join host Jeffrey Rosen to answer these questions. They explore legal precedent set by previous disputes between Congress and the president, and historical analogs from the Civil War through the Nixon and Clinton administrations. They also give their take on what might happen next, including how the Supreme Court might rule on the question, if asked to do so.
Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments, for The New York Times. He practiced law for 14 years before joining The New York Times’s news staff in 2002. He was a finalist for the 2009 Pulitzer Prize in explanatory reporting. He has taught courses on the Supreme Court and the First Amendment at several law schools, including Yale and the University of Chicago.
Keith Whittington is the William Nelson Cromwell Professor of Politics at Princeton University. He is the author of numerous works on American constitutional theory, the presidency and Congress, including Constitutional Construction: Divided Powers and Constitutional Meaning. He is currently working on a book about constitutional crises entitled Constitutional Crises, Real and Imagined. He is also a member of the American Academy of the Arts and Sciences and blogs for Volokh Conspiracy.
Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.”
- McGrain v. Daugherty (1927)
- From Constitution Daily, “The House’s contempt powers explained” by Scott Bomboy
Our Interactive Constitution is the leading digital resource about the debates and text behind the greatest vision of human freedom in history, the U.S. Constitution. Here, scholars from across the legal and philosophical spectrum interact with each other to explore the meaning of each provision of our founding document.
Article I, Section 1: General Principles by William N. Eskridge, Jr. and Neomi Rao
This episode was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Lana Ulrich and Jackie McDermott.
Stay Connected and Learn More
Questions or comments about the show? Email us at [email protected]
Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr.
Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly.
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: Dear, We the People, friends, and listeners. I'm thrilled to share with you that this week the National Constitution Center elected a new honorary chair, Justice Neil Gorsuch will succeed Vice President Joe Biden as the honorary chair of the National Constitution Center. We're so grateful to both Justice Gorsuch and Vice President Biden for working with us to advance our crucially important non-partisan mission of promoting civics and civility of which this, We the People Podcast, is such a central part.
I'm Jeffrey Rosen, president and CEO of the National Constitution Center. Welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a non-partisan non-profit chartered by Congress to increase awareness and understanding of the constitution among the American people.
Today we explore the question of constitutional crisis, and whether the president's announced decision to resist all the subpoenas has created a conflict between the executive branch and Congress that might add up to a constitutional crisis or not. Joining us to discuss this crucially important constitutional question are two of America's most thoughtful commentators about the constitution. Both have written really illuminating stuff about the broad and detailed questions that we're going to be discussing.
Keith Whittington is the Wilson Nelson Cromwell Professor of Politics at Princeton University. He's the author of many works on American constitutional theory, the presidency and Congress, including Constitutional Construction: Divided Powers and Constitutional Meanings. He's currently working on a book about constitutional crises entitled Constitutional Crises, Real and Imagined. He's a member of the American Academy of Arts and Sciences and blogs for the Volokh Conspiracy. Keith, it's great to have you back on the show.
Keith Whittington: Thanks for having me.
Rosen: And Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments, for the New York Times. He practiced law for 14 years before joining the Times in 2002. He has taught courses on the Supreme Court and the 1st Amendment at law schools including Yale and the University of Chicago. And, is also a returning champion on the We the People Podcast. Adam, it's wonderful to have you back.
Adam Liptak: It's nice to be back.
Rosen: Keith, I can't wait to read your new book, Constitutional Crises, so I will begin with the obvious question. Chairman Nadler on the House Judiciary Committee has said we are in a constitutional crisis. Are we or not?
Whittington: I don't think so. I think politicians can be rather quick to want to declare constitutional crises, in part because they think that that kind of rhetoric will help empower them and give them additional leverage, in the case, in negotiations with the White House.
The way I think about a constitutional crises is to think about whether or not the constitutional system as a whole is breaking down or whether or not important parts of it are breaking down and failing to operate. There's no meaningful term of constitutional crisis within American constitutional law. It doesn't reference anything very particular. It's often just a piece of political rhetoric. But I think if we want to unpack that political rhetoric, the useful concepts behind it really go to questions about whether or not the constitutional order is failing.
Rosen: Adam, do you agree with Keith's definition of a constitutional crisis? A situation in which the constitutional system as a whole is failing. Or is that too rigorous? Would you have a different definition? What does history tell us about whether or not we're in a constitutional crisis?
Liptak: No, that feels right to me. So long as each branch continues to have tools to try to advance its interest, the constitution does contemplate skirmishes and tussles and so on. Short of a complete breakdown, I wouldn't be throwing around terms like constitutional crisis either.
It's hard to know exactly what would be one. I guess the one I could surely imagine is a direct command from the Supreme Court to, say, the president that is disobeyed. At that point, I'm confident we're in a constitutional crisis. But so long as there are simply Maximalist desertions from both sides with the House seeking all kinds of information from President Trump, and President Trump declaring a wholesale refusal to provide the information, that's novel seems to me. But I don't know that it rises yet to the level of a crisis.
Rosen: Well, let's delve into the definition of crises a bit. Keith, in your articles and you'll develop this in your forthcoming book, you argue for two different types of constitutional crises, operational crises and crises of fidelity. Operational crises you say arise when important political disputes cannot be resolved within the existing constitutional framework. That's when the system is breaking down. And crises of constitutional fidelity arise when important actors threaten to become no longer willing to abide by existing constitutional arrangements or systemically contradict constitutional prescriptions. That would be the president refusing to leave office or openly to defy the Supreme Court.
Can you give us examples of both of those crises in history? When in history have we seen constitutional crises?
Whittington: Fortunately, we don't see them very often in American constitutional history. In part, we've developed various kinds of tools and expectations and practices and norms to avoid running into things that could be a potential crises.
Notably, for example, we're very creative about how to interpret the constitution, and that helps in being able to pull political reformers and political activists into the constitutional tent and have them argue about how we ought to interpret the constitution rather than imagine that we have to abandon the constitution. We should simply ignore parts of the constitution.
Historically, the Garrisonians, who were an important component of the anti-slavery movement, took the view that the constitution was fundamentally evil because of the compromises it made with slavery. As a consequence, they really encourage the view that political actors should violate the constitution, ignore the constitution. That we should break up the union in response those compromises with evil.
The more successful anti-slavery movement, at the end of the day, was represented by people like Fredrick Douglas and Abraham Lincoln who embraced the idea that the constitution was compatible with anti-slavery goals. As a consequence, you didn't have to break faith with the constitution itself in order to advance those anti-slavery goals within the context of the constitution.
One way in which we avoid these things is by being creative about how we interpret the constitution. I think these potential crises of operation are also implicit in various aspects of the American constitution, but in particular, in this media context, in the context of separation of powers both Congress and the president have available to them a variety of constitutional tools they can use to try to get their way. There are points at which it's possible for them to come to (inaudible) and just reach an impasse they can't get past even operating within the terms of the constitution itself.
For example, imagine a Senate that was implacably opposed to a new presidency, simply refusing to confirm any cabinet officials for the new president. And so, the president's in capable of creating a government around him to help guide the executive branch. There's no easy path forward under those kind of situations. We avoid that kind of impasse. In part out of a set of historical practices that encourage us to compromise, be more moderate about how we use our power, and not to try to make Maximalists claims that will lead to deadlocks. But instead, try to find ways of moving forward within the constitutional system.
Jeffrey Rosen: The Garrisonian example is very salient and listeners know, I talked last week about this really exciting new gallery on the Civil War and reconstruction and its constitutional legacy that we just opened at the Constitution Center. Keith, your definition suggest we really have very few actual constitutional crises in American history. Maybe the constitutional convention itself following the American Revolution, the Civil War. I guess you could argue about the New Deal and the Civil Rights Movement. But it's a small set.
Adam, given the fact that you both agree that we're not currently in one, why don't we compare the president's current claims, “I'm going to resist all the subpoenas,” with, I suppose, the nearest historical analog, the Nixon Era. Is the president's claim more extreme than the ones taken by President Nixon? And so far, is the clash we're seeing between the president and Congress more extreme than the clash between the Nixon era president and Congress or not?
Adam Liptak: Well, the Nixon era clash ends up in court, and not because of a confrontation with Congress directly but because of a criminal inquiry. There the Supreme Court says ... One interesting point, Jeff, is that the claims of each side are nowhere to be found in the words of the constitution. That is Congress says it has authority to seek information from the executive branch and others. It has an investigative power. You can infer that from the text of the constitution, but it's not in the constitution.
The president responds that he's got something called executive privilege, or right to keep at least some materials confidential. Also, not in the text of the constitution. Both of these concepts, congressional investigations and executive privilege, have been recognized by the court, by the Supreme Court. As you say, the Nixon tapes case is the analogy, but the Nixon tapes case doesn't arise in a clash between Congress and the president but between a criminal inquiry and the president.
In the Nixon tapes case, the court says, “Yes, there is such a thing as executive privilege. The president does have some right to keep at least some materials, including his consultations with his closest aides, confidential, but it must yield in the face of a criminal inquiry, at least sometimes.” In a footnote it says, “We're not addressing today congressional investigations.”
The truth is we know very little about the legal status of congressional investigations. My sense is that the Trump administration's point of view about all this is going to be that it's not justiciable. It's not for the courts. That Congress has other tools if it's not happy with how the president is responding. The House, of course, is in charge of appropriations. Congress could decline to confirm presidential appointees. Congress can impeach. The constitution gives Congress ways of addressing presidential recalcitrance that suggest this is not for the courts to decide.
Jeffrey Rosen: I want to ask you about what some of those ways are, and follow up on further insights from your great recent piece in the New York Times reviewing these questions. Keith, first, I want to ask about historical analogs to clashes between Congress and the president. As Adam says, Nixon was between the court and the president. We do have some salient Supreme Court decisions rising from the Teapot Dome scandal in 1927, which involved some congressional/ executive scuffles. What are the nearest historical analogs for these congressional/executive clashes? What do they tell us about the current ones?
Whittington: Well, we've had them periodically. In the 19th century, they tended not to be resolved in the courts but instead were resolved in negotiations between Congress and the White House. In the 20th century, it's been a little more common for some of these disputes to wind their way into the court system, often not necessarily reaching the US Supreme Court itself.
Traditionally, the 19th century, these battles were resolved in part by Congress using the kinds of tools that Adam just mentioned of threatening to refuse to appropriate funds for a president's policy proposals, to refuse to pass the kind of legislation the president might want, to refuse to confirm nominees that the president might want. So, for example, in the late 19th century there were a series of disputes between the US Senate and the president over the ability of the president to fire executive branch officials that senators didn't necessarily want to be fired.
They often threaten the president to not confirm new nominees for those positions. And among the things they often demanded were access to the records, by which the president was justifying his removal of the earlier officials. Presidents would push back and say that those were covered by executive privilege, that it was inappropriate for the president to share with the senate the internal workings of the executive branch and the things that led him to want to remove one official and the things led him to want to appoint a new official.
Those disputes were ultimately resolved by the question of how far was the Senate willing to go to refuse to confirm new people to those positions, for example, and how far was the president willing to go to insist that he wasn't going to share records. They often met somewhere in the middle and eventually worked their way through those disputes. There are lots of tools available for Congress in the current situation as well, besides going to court, where they can try to work through these disputes currently.
Jeffrey Rosen: Adam, does that threat not confirm officials still work in an age when the Senate is held by Republicans and is operating along strict party lines? And then talk about other enforcement powers that Congress has at its disposal. Your colleague, Charlie Savage, wrote a great explainer of the subpoena and the contempt fight between Trump and Congress explaining what lawmakers can do if someone defies a subpoena and what the punishment is for contempt of Congress. Can Congress enforce a contempt citation on its own? What about going to court and so forth? Give us a sense of the overview of Congress' enforcement powers.
Adam Liptak: On the first point, my sense is that the framers envisioned that members of Congress, both House and Senate, would have loyalty to their institutions as opposed to partisan loyalties or factional loyalties. Therefore, Congress as a whole would work toward making sure that its power would be respected by the presidency. As you point out, Jeff, in the current partisan climate where one party controls each house of Congress, that's not going to happen. That means that the constitutional structure envisioned by the framers may not work perfectly. Since the Senate, for instance, has the power to confirm or not presidential appointees, and is controlled by Republicans, that's not a power Congress is likely to exercise.
The House does have the appropriation power though. It can withhold money. It can withhold salaries. That's real power. But not every tool available to Congress will be used by this Congress because of the partisan divide. As far as what the House can do if the president refuses to obey its subpoenas, there are four or five different roads it could go down.
In theory, it could send the sergeant at arms to detain the recalcitrant witness and hold him, presumably in a room in the basement of the capitol or someplace until the witness talks. That method has been used historically, but hasn't been used since 1935 and I don't think it's likely. It could ask the Justice Department to pursue criminal proceedings to enforce the subpoena. Of course, the Justice Department, and this is not unique to the Trump administration, is not going to go along with that when the subpoena is directed to an executive branch official.
The House can go to court itself, and has in earlier administrations. Eric Holder, the Obama Attorney General was held in contempt. Harriet Meyers, the White House counsel, Josh Bolton, the Chief of Staff in the Bush administration were held in contempt. That gave rise to civil proceedings in the court, which were protracted unsatisfactory, led to some compromises but didn't result in definitive rulings.
The fourth option is impeachment. Impeachment is kind of a shorthand for a series of things. The House can open impeachment proceedings and issue subpoenas in connection with those. Those may be particularly powerful. It can actually impeach, which is to say accuse the president of misconduct, and then send those proceedings to the Senate, which would consider removal. But we're back to where we started a second ago. A Republican controlled senate is not going to impeach this president.
And then finally, there's a political solution. We'll have an election in a couple years and people can take account of all of this and make their own judgements.
Jeffrey Rosen: Keith, your thoughts on Congress' contempt powers? I'll also call out a good constitution daily post the Constitution Center ran recently by our web editor, Scott Bomboy, noting a series of contempt powers detailed by the congressional research service ranging from criminal contempt of Congress, a civil lawsuit brought by the House or Senate asking a House to enforce the subpoena. Congress' dormant inherent contempt power, and it also talks about the history of contempt citations, including a 1917 when the US Attorney was cited for contempt because he used insulting language in a letter to Congress. Help them learn some of those details, the history of these contempt battles and what Congress' power are.
Whittington: Yeah, the contempt power is interesting in the modern era in that we might've thought at one point that partially holding people in contempt would shame government officials and indicate how unhappy Congress was to agree to which an executive branch official, for example, was misbehaving. And as a consequence, try to get them to be more accommodating just by calling them out on it. In our current highly partisan environment, it seems that people are pretty willing to shrug off a contempt citation and not take it very seriously as something that suggested they're behaving badly.
As a consequence then, it's more significant in terms of how it gets the Congress in the courts and to what degree can you bring the courts into play. Mostly, at the end of the day, that means can you leverage the institutional prestige of the courts to weigh in, in favor of Congress. You can imagine an extreme situation where maybe the president refuses to comply with a judicial order as well, and that possibility is always hovering in the background. But it certainly seems less likely that the president would disobey a direct judicial order than a president might be willing to ignore a congressional subpoena calling for the production of some documents.
Part of what the contempt citation allows Congress to do is to try to pull the courts into the dispute. From their perspective, hopefully, persuade the courts to weigh in, in favor of the congressional role here and try to push back against a intransigent executive.
Jeffrey Rosen: Well, you've mentioned the courts. Adam, let us turn our attention to the legal battles ahead, and they're really complicated and they're a lot of them. They raise issues ranging from executive privilege to the scope of the subpoena power as defined by the Supreme Court in 1927 to be limited to inquiries with a legitimate legislative purpose to the status of grand jury material, 6C material in the redacted Mueller report. We're not going to cover all of these on these podcasts, but why don't you just take us forward over the next couple months and identify some of the main legal issues that the courts will confront as they evaluate whether or not the president has to comply with a myriad of congressional subpoenas.
Adam Liptak: The central issue and the one that President Trump's lawyers, both DOJ and private lawyers have been pressing is that such investigative power as Congress has is limited to seeking information in aid of its legislative responsibilities. They will say that say seeking President Trump's business records, records from his accounts, records from his banks don't fit with that power. That those are not legislative inquiries. They don't help Congress figure out what's wise, accounting legislation or tax legislation or so on.
The Supreme Court has defined the legislative power quite broadly. I don't think will be particularly inclined to second guess Congress' own conception of what fits within the legislative power. But that's a main battleground. Congress also sometimes uses the term oversight, which is broader than seeking information to help it legislate wisely. The Court has also indicated that Congress does have the power to supervise the executive and make sure there's no fraud and corruption, and the Teapot Dome case certainly went along those lines.
In court the other day, President Trump's private lawyers said that that's not a legitimate connection to the legislative power. That Congress can investigate legislative agencies but not the president himself.
Jeffrey Rosen: You mentioned the Teapot Dome case. It's come up a bit. This is the Daugherty case, McGrain and Daugherty in 1927 decision. Mally Daugherty is the brother of former Attorney General, Harry Daugherty. I'm reading from Scott Bomboy's explainer. A select Senate committee issued a subpoena for him to testify and to give bank records. He refused to comply with the subpoena. The Senate issued a warrant, and took him into custody. He filed a habeas petition. The Supreme Court upheld his conviction, holding that Congress has the power to compel witness testimony to obtain information in aid of the legislative function.
Keith, can you give us any sense of where that distinction comes from, that the congressional power is limited to information in aid of the legislative function? Does the constitution or the law tell us anything about how broadly the legislative function should be defined?
Whittington: Well, the story important again is this question of where the congressional investigative power comes from in the first place. The constitution doesn't explicitly say that Congress has the authority to investigate. It doesn't say that Congress has authority to issue subpoenas or to compel witnesses to testify or to bring documents to Congress. All those things have been inferred from the constitutional structure and from the kinds of powers that Congress has more generally, as well as background principles of the nature of legislatures including British and colonial practice before the American case as well.
So then the question is, well, how big is that inference? What is the scope of this power we're inferring? If we're inferring that Congress has a power to engage in investigations, presumably that derives from the fact that they have a power to pass legislation in the first place. As well as a few other more specific powers, including the impeachment power, for example, which is not a power to legislate, but the empower to do something else. You may need to investigate as part of pursuing that particular power as well.
But, of course, Congress' legislative authority is very broad. What it means to gather documents and gather evidence that might help you eventually engage in legislation is potentially quite broad. Courts have been very reluctant to want to weigh in to say that even though Congress has this broad legislative authority, this particular example of a hearing, of a witness, of a line of questioning has gone too far and isn't actually contributing to Congress' constitutional authority to legislate.
I think the principle is an important one because I think that Congress does, in fact, have some limits here. But identifying in practice where those limits are and when Congress has crossed the bounds in hard in general, and courts are probably going to be very reluctant to want to get involved in that.
Jeffrey Rosen: Adam, in your recent piece, Clash Between Trump and House Democrats Poses Threat to Constitutional Order, you note that were the House to open impeachment proceedings against Mr. Trump, its right to gather information would be strengthened. Tell us what the legal consequences would be. Would it have to formally open impeachment proceedings? Or, could it say that the information was being sought to help it inform its decision about whether to open impeachment proceedings? How would that change the legal landscape?
Adam Liptak: It seems to me that whatever the legislative power is, and you can argue about that, in the context of impeachment proceedings the House surely has the right to gather information. The House is in that setting sort of like a prosecutor. A prosecutor doesn't wake up one morning and say, “I'm going to indict somebody.” A prosecutor first investigates, gathers information, and moves only after persuading itself that there is sufficient evidence to warrant an accusation here against the president.
There's little question but that information sought in aid of an impeachment, a potential impeachment, is well within the House's power. Now exactly when that right attaches, do they have to formally open impeachment proceedings or do they have to merely say they're thinking about opening impeachment proceedings, there's really no law on that. But probably it's sufficient for them to say in good faith, “We're looking at impeaching the president. We need to know whether we should.” Subpoenas issued in aid of that inquiry would almost surely hold up in court.
A further point, something quite similar happened in the Nixon impeachment proceedings. Nixon, of course, resigned before the proceedings got very far along. But one of the articles of impeachment against President Nixon was not only that he disobeyed a congressional subpoena, but that that subpoena was in aid of the impeachment inquiry.
Jeffrey Rosen: Thanks for that crucial point. In the Nixon clash, District Court also ordered the disclosure of 6E material, that is secret grand jury material, on the grounds that it might be relevant to the enforcement of the law and of possible impeachment. Given this reality, Keith, can you imagine situations in which courts would say that Congress does not have the right to subpoenaed information? What categories are those most likely to be?
Whittington: Well, I assume Congress would be careful enough not to wind up in the position of having a court really call into question whether or not Congress has the authority to investigate things, especially under the impeachment power. The impeachment power is so broad in being able to identify the need to gather information or to know whether or not you ought to launch a formal impeachment inquiry gives Congress a lot of flexibility on what to pursue under that rubric.
The challenge, I guess, potentially would be if the House were to cast the net so widely that they were trying to seek documents on something that you'd have a very hard time thinking that any results from that investigation would lead to something that could be characterized as a high crimes, a misdemeanor. Of course, the court is going to be very reluctant to want to weigh in to actually give definition to what constitutes impeachable offenses.
Over a course of American history, the scope of impeachable offenses have also been very broad, but also vague on the margins. You can at least imagine a circumstance in which the House was so aggressive and were pursuing kinds of documents which they argued that we need these documents. We need this testimony for the sake of impeachment inquiry. And the response is to say, “The thing that you're looking at doesn't rise to the level of impeachable offense, and as a consequence, you're not entitled to these kinds of documents.” You could at least tee up that kind of dispute. Again, I find it very hard to imagine courts would want to get in the middle of that.
Jeffrey Rosen: Adam, can you imagine any of the currently subpoenaed information being ruled by a court not to be discoverable by subpoena. That the tax returns, for example, couldn't that not be held to be relevant to a legislative purpose or not? Or are there any other subpoenas that you think might be most likely to be resisted in court?
Adam Liptak: I think there's so many subpoenas in so many areas that you're likely to get a mix of results. Information about President Trump's private conduct as a business person before he became president is a little further away from the core legislative function. Although, of course, whether he's run afoul of the constitution's emoluments clause, which forbids taking money, at least in some circumstances, from foreign entities, might make that stuff relevant.
On the other end of the spectrum, requests for his tax returns, which a statute seems to by its plain terms, require the treasury to turn over, which seem to be the kind of inquiry where courts are more likely to side with the House. But I would expect a range of different outcomes. I would hope, but I'm not confident, that it wouldn't turn on the party of the appointing District Court judge. But it wouldn't surprise me totally to think that judges appointed by, say, President Obama might be more sympathetic to the House's claims than judges appointed by, say, President Trump less so. But all that remains to be seen.
Jeffrey Rosen: Keith, is this new? I'm hearing from both of you the idea that congressional presidential clashes, historically, were resolved more by accommodation and by political threat than by judges. More of these claims are now ending up in court. Adam has just suggested that there might be a range of outcomes possibly even based no the identity of the judge and which president appointed him. Is that something new? And as a result, are we more likely to see the spectra that you identified, the possibility of the president refusing to abide by a biding judicial order?
Whittington: This is somewhat new. As I said, we have been creeping into this situation where courts have become more and more involved in these disputes. Both Congress and the executive branch have been more willing to try to bring the courts into these disputes to help resolve them.
In our current situation, the House is pursuing a wide range of investigations. They're issuing an awful lot of subpoenas. And so as a consequence, there are a lot of very particular disputes that the president apparently is willing to litigate out. And so I would expect that the White House is going to win some and lose some in these instances. In some cases, the House might be found to have reached too far.
But there is a possibility that some of these cases might eventually make their way all the way to the US Supreme Court. The Court would be asked to weigh in. I think of the President Trump is counting on the judges that he has appointed to both the lower courts or the US Supreme Court to be on his side in all these disputes. He is being overly confident. Justices have surprised presidents in the past on these issues.
It is true that Republican appointed justices and judges in general tend to be more sympathetic to an executive power claims in general. And so it happens to be the case that a Republican president will be making executive power claims that Republican appointed judges are likely to be more sympathetic to than some Democrat appointed judges might. Even so, I think it's entirely possible that the White House will be too aggressive in its own litigation strategy and will find itself losing some Republican appointed judges along the way as well.
Jeffrey Rosen: Adam, Keith just raised the question of what might happen at the Supreme Court. Imagine that the tax case goes up to the Supreme Court and the justices are asked to decide whether the president has to turn over his tax returns according to the clear terms of the statute or whether there's no legitimate legislative purpose for this subpoena. Which way do you think the court would rule? Do you think it would be a case of Republicans against Democratic appointed justices or not?
Adam Liptak: First of all, Keith was quite right that as it happens, and this is really happenstance, the ordinary inclination of the more conservative justices to be sympathetic to executive power might align them in that way even and look partisan even though this would be a de function of a pre-existing jurisprudential commitment.
I think that the Court is in a tough spot already in terms of its legitimacy and would try hard not to come out five-four decision in favor a Republican president with all the Republican appointees on one side and all the Democratic appointees on the other side. It's conceivable to me though that at least some of the justices would achieve the result of ruling in favor of President Trump, not on the merits but on the grounds that this is not a matter for the courts. That Congress has other tools through which to enforce its requests for information, and that the case is not justiciable.
I would've thought something a little different had a Mueller subpoena, a criminal subpoena, reached the Supreme Court. I would have expected a lopsided loss for President Trump. The congressional setting, because so novel, makes it harder to predict.
Jeffrey Rosen: Very interesting. Keith, can you imagine a US v. Nixon situation where a Supreme Court unanimously rules against the president in his effort to resist a subpoena in order to defend the powers of Congress? If so, what might that look like?
Whittington: While it's certainly hard for the court to be unanimous these days on important, contentious issues, in general, the justices have their own divisions. And just like the rest of the political system, has its divisions. But I do think the justices would try very hard to build large majorities in weighing in on these kinds of disputes. In particular, I'm sure that they do not want to be handing down five/four decisions in favor of the president with the Republican appointed justices composing all the members of the majority. They'll be looking for other options than that.
It may well be that they can find ways of compromising among themselves and coming up with particular legal strategies including focusing on justiciablility issue that would allow them to come up with some more agreement and build up a broader coalition on the accord. I think it also just depends some on what specific disputes wind up moving through the system and all the way up to the US Supreme Court. There are certainly some of the things that Congress is likely to be pursuing and is pursuing now and hearing some testimony. When Trump says, “We're going to resist all the subpoenas,” and has this blanket refusal to cooperate with Congress, some of those things he's refusing are really very much within the core competency of Congress.
I think as a consequence, the administration is in a difficult legal position to try to defend the claim that hearings and testimony and documents that are right squarely within the scope of congressional authority to potentially legislate or in the potential impeachment inquiry, nonetheless, cannot be reached by Congress. I think the court's likely not to look very favorably on those kinds of claims.
My assumption is the White House, at the end of the day, will wind up having to back off of some of the more extreme rhetorical moves the president himself has made. And so, to put themselves in a better legal position.
Jeffrey Rosen: Adam, you didn't write the headline perhaps, but Clash Between Trump and House Democrats Poses Threat to Constitutional Order, if you were to game this out about a year forward, and if you're both correct that ultimately we will not see a situation of the president refusing to abide by a valid order from the Supreme Court, which would be a constitutional crisis according to Keith's initial definition, how will this end up? Will the clock run out? Some judges will rule for the president, some against? The Supreme Court will try to avoid a big clash and then we'll have the election? Or, is there likely to be a significant legal battle that could, again, resurrect talks of serious constitutional clash if not constitutional crisis?
Adam Liptak: I think both roads are available. Keith is right that we may not want to take President Trump at his word in an offhand comment, and that there are aides who are alert to the constitutional issues and will try to find middle ground and accommodation and some of these things may go away.
It's also entirely possible to conceive of a fast track litigation where, say, a district court judge in Washington orders the disclosure of, say, accounting records, refuses to stay that decision. That rockets up to the DC Circuit. They refuse to stay the decision. In a matter of weeks, the Supreme Court in that preliminary context, on an emergency application, which is not where they tend to do their best work, has to decide whether they're going to block or not as the litigation proceeds, the order requiring the disclosure of information. It's not outside the realm of possibility that the Supreme Court would at least have to make a preliminary ruling in such a case. Where that leads is hard to tell.
Jeffrey Rosen: Keith, can you imagine a scenario where something like your type two category if the president refusing to obey a valid, legal order occurs and we do come close to constitutional crisis?
Whittington: Of course. That's been a persistent fear with President Trump. There's some reason I think to have that fear. President Trump is unusual in his own attitudes toward the courts. He's been particularly aggressive in his rhetoric about the courts. He revels in breaking the tradition norms and practices, also doesn't understand those norms and practices very well in the first place. Some he breaks on accident and some he breaks on purpose. And so you can imagine President Trump being willing to take that step in ways that other more traditional presidents simply wouldn't.
Trump also has less of a long-term investment, I think, in either the Republican party or the workings of the American and political and constitutional system than traditional presidents would. It's a little harder to appeal to his long-term interest, and for him, everything is going to be about his short-term personal interests. And so while the president himself, I think, might be more likely to be willing to have that kind of fight than most presidents traditionally would be willing to do, then the question is how many people are willing to have that fight with him? Are Republican allies in Congress, in the executive branch itself, in the larger political arena willing to rally around the president if he takes that kind of extreme step.
My inclination has been to think that they wouldn't. That Republicans have a longer-term stake in the workings of the system, such that they are not as willing as the president to break with some of these fundamentals. But it's hard to tell. I have to admit the Republicans in general have been more willing to be supportive of the president in more context than I might have expected going in.
Jeffrey Rosen: Adam, how about you? Can you imagine a type two crisis of the president in some circumstances refusing to obey a valid court order, and what might that look like?
Adam Liptak: I guess I'm not ready to think that. In almost every case, I mean there are examples in American history, but in almost every case and certainly currently, the basic idea that when the Supreme Court speaks, people do what it says. Held true in the Nixon tapes case. Held true in Bush v. Gore. I always think of Justice Breyer who was in dissent in Bush v. Gore walking around telling this story.
He says, “Isn't it great that the morning after Bush v. Gore, which I thought was a terrible decision and I was in dissent, there aren't riots in the streets. People obeyed what the Supreme Court said because the Supreme Court's reservoir of legitimacy is so large that people simply do what it says.” The alternative would be to turn us ... I'm not not quoting Justice Breyer. This is me talking. The alternative would be to turn us into a kind of Banana Republic. I don't see, even in these extreme political times, I don't see us going there.
That is to say I would expect President Trump to abide by a Supreme Court decision requiring the disclosure of information.
Jeffrey Rosen: Well, let's turn to Keith's type one crisis, the operational crisis, which arises when important political disputes cannot be resolved within the existing constitutional framework. Given the wrapping up of the judicialization of the clash between Congress and the president, Keith, can you imagine a situation where type one, operational crisis, would arise?
Whittington: Well, you can imagine, for example, if the way the court wanted to resolve this issue is to say this is not judicable. At the end of the day, Congress has its own tools to try to extract information from the White House and should do it on its own without the courts intervening. Then you're leaving the executive and the legislative branches to their own devices to find a way through this particular situation.
You can imagine them coming to an impasse and not willing to budge very much and compromise on this particular issue. And then the question is what happens next? I think it depends a little bit on what the particulars of the dispute turn out to be as to how significant that impasse actually is, to what degree does it really stymie the ability of Congress to engage in the oversight and engage in the other activities that it needs to engage in. Not every time the Congress can't access information does that mean that it's not capable of doing its job.
But in the end of the day, Congress has the big trump card, which is the ability to impeach the president or impeach other executive branch officials if they are completely unhappy with the extent to which the administration is stonewalling them on some of these issues. It's possible we could get to a point where they would play that trump card and the constitution is designed to allow them to play that Trump card.
I think one way in which you avoid the possibility of a crisis is by using the constitutional tools you have available to you. Among those constitutional tools is the ability to impeach executive branch officials.
Jeffrey Rosen: Adam, same question to you. Could you imagine a type one, operational crisis, arise? Do you agree with Keith or not that if the Congress and the president are at an impasse, the courts refuse to intervene, Congress can't enforce its subpoenas? Do you agree that the possibility of impeachment would always be a safety valve that would, basically, avoid or defuse the operational constitutional crisis or not?
Adam Liptak: I think Keith's analysis is spot on. The constitution does grant Congress, which after all is established in Article I in the constitution, vast powers to control the president, including by impeachment. While an impasse could result in all kinds of mischief, at the end of the day, if both houses of Congress were ready to move against the president, there's little doubt that they could. There's no doubt that they could.
We could imagine yet another constitutional crisis, which is a president who once impeached and removed by the senator refused to go. But then again, we're into very deep waters.
Jeffrey Rosen: The president who once impeached refused to go would absolutely be-
Adam Liptak: We can agree that's a constitutional crisis.
Jeffrey Rosen: No question about it. Completely unprecedented in American history. Keith, what do you make of that? Is that a possibility? Is there anything that approaches it? Also, what if the situation you describe occurs and the House impeaches and the Senate refuses to convict? Democrats would cry constitutional crisis saying that Congress' powers were left unforced. Would that actually be a constitutional crisis or would a failed impeachment also be a safety valve that would diffuse it?
Whittington: I think we'd certainly have those cries. I think they'd be mistaken. That at the end of the day that the Senate's ability to have a trial on articles of impeachment and come to a judgment is also part of that constitutional process. These disputes resolve themselves through moving through those processes, including possibility of acquitting the president in trial and ultimately through elections. The people will eventually weigh in as well and either allow this impasse to continue by continuing to put into power different parties who continue to disagree. Resolving it by removing one of the two parties and giving somebody complete control.
I think the other thing though that you would expect to see in that kind of circumstance is that people will start crying constitutional crisis because of the impeachment itself. We saw that during the Clinton impeachment where people said it was a constitutional crisis that we were thinking about impeaching a president. President Trump himself, on the campaign trail, threatened that if Hillary Clinton was elected president it would be constitutional crisis because she would find herself under investigation and possibly be impeached.
I think one thing that's crucial is that we try to emphasize that the mere use of those constitutional tools is not a crisis. They may be unfamiliar, certainly they make life difficult politically speaking, but Congress has these tools and they should be able to use them in appropriate circumstances without us assuming that they're for the system is breaking down just because we find ourselves needing to think about the possibility of impeaching somebody.
Jeffrey Rosen: Yes. People do tend to cry constitutional crises at times of impeachment. I bashed a note from my prep here that I wrote a piece in 1998 during the Clinton impeachment for the New Republic called, A Constitutional Crisis. I think that that was wrong. I've learned from both of you, impeachment itself is not a constitutional crisis.
Adam, do you agree with Keith that, basically, as long as the impeachment safety valve exists, that constitutional crises can always be averted and you really do need blood in the streets, as in the Revolutionary War and Civil War to have a genuine constitutional crisis? Or, if the scenario we've described occurred, short of the president refusing to leave office, if there is an impeachment, even a failed impeachment, can you imagine any scenario that would be a constitutional crisis?
Adam Liptak: Crisis is not binary. Crisis is as someone said to me in connection with one of the articles I wrote, it's not like a cliff you fall off of. It's a slope you go down. You can imagine, and let me talk about a slightly different context. We're now at a point where if a party different from the president's party controls the Senate, it's quite easy to imagine that there will be no Supreme Court nominees confirmed. The people are so angry over the Merrick Garland episode that it's possible that the Supreme Court would gradually drivel away and that we'd have fewer and fewer justices.
At some point, that's got to be a crisis. There are ways that the government needs to function that if nobody is cooperating with anybody about anything, you will, at some point, wake up one day and say, “I don't know what a crisis is exactly but it's this.” In general though, impeachment is a powerful tool. And even if the Senate does not convict and remove, it could be a powerful political teaching moment. It would present all of the evidence, not only to the senators but to the American public, and whatever the Senate decides, the American public can make a judgment in the next election.
Jeffrey Rosen: Thanks for that. Great example of a possible case where the Senate simply refused to confirm Supreme Court appointees. Keith, do you agree that that would be an operational crisis in the sense of a political dispute that can't be resolved within the existing constitutional framework? Could other examples, such as court packing by a future Democratic president and Congress, constitute a constitutional operational crisis or not?
Whittington: I think that's right. That kind of example of having the Supreme Court dwindling away because we simply can't manage to confirm any new justices is indicative of the kind of problem that you have embedded in a presidential system where you need the possibility of Senate confirmation in order to place people in offices. As a consequence, there is a possibility of severe and persistent gridlock.
The chief justice, at one point, referred to the lower courts as being in a vacancy crisis. I think even used the language of constitutional crisis at one point because there were so many vacancies on the lower courts because the Senate and the president couldn't agree. We've worked our way out of that, in part by having a Senate and a president of the same party and by changing some Senate rules to make it a more institution, so it can move nominees forward. But I think it's easily imaginable to have a future Senate of a different party than the president not only refusing to confirm Supreme Court justices, but also refusing to confirm any lower court justices, and again, having vacancies pile up in a way that actually interferes with the ability of the judiciary to do its job.
You can imagine similar things happening in the executive branch in staffing the executive branch, so much the government grinds to a halt and becomes ineffectual because of the inability to staff up the executive branch. But you can also imagine it happening in the budgetary process of just a peristent government shutdown in which the president and Congress are unwilling to compromise on budgetary priorities. As a consequence, can't manage to keep the government open in general.
Generally speaking, those outcomes are so severe and nobody wants them that as a consequence, the people eventually find ways of negotiating out of those problems and finding some compromises in order to move forward. But we have seen examples recently where the partisan divide is just so severe that people are willing to take relatively extreme steps rather than make the kind of compromises that allow the government to move forward.
Jeffrey Rosen: This is really helpful. We've identified an actual scenario of constitutional crisis. You've both said that the government grinding to a halt because the Senate refuses to confirm judges or executive officials or Congress to pass a budget might be a crisis. Adam, I'll just close with a question about court packing. If in the future the Democrats take the White House and Congress and try to increase the size of the court to 13 justices, as several presidential candidates are talking about, would that be a constitutional crisis or not?
Adam Liptak: No. The constitution doesn't set the number of justices. That's set legislatively. The number of justices on the court has gone up and down over history. As you guys both know, of course, when FDR tried to pack the court, that was very unpopular with the public. I imagine the public would not be very receptive to a court packing plan. But that's a political, not a constitutional, question really.
It strikes me as a little odd that Democrats are running around saying, “We should increase the size of the court.” I wonder whether Republicans don't wake up one morning and say, “Okay, sure. Let's do it,” while they're in power. It might be an argument better made when you, yourselves are in power.
Jeffrey Rosen: Keith, your thoughts on whether court packing is a constitutional crisis. And then, I'll ask for your closing thoughts about the scenario about what the future grinding to a half, constitutional crisis could possibly look like and how likely we are to see it.
Whittington: Well, changing the size of the court is within the constitutional powers of Congress to do. They have done it in the past and could do it again in the future. And so, I think that the mere fact of thinking about adding judges to a court shouldn't be regarded as a constitutional crisis itself.
What concerns me, I think, though about those proposals and the thing that's worrisome in the background is what the goal is that you're pursuing by trying to pack the court in that way and alter it. I think the worry is that it's basically a legislative version of what we've already been talking about with the president, which is the possibility of a president simply defying a court order and refusing to comply with what the court says. You worry about the institutional integrity of the court under those circumstances. You also worry about the underlying commitment to adhere to constitutional rules when presidents are willing to make those kind of statements.
The same thing applies then in the congressional context of thinking about court packing. If really what you're trying to do is say, “Well, there's a set of controversial rules I'm not willing to comply with, and the way I'm going to avoid having to comply with those rules is by packing the court full of people willing to just declare those rules no longer operative,” then you do have a crisis of a different sort. Because the ultimate dispute is about them. The substance, commitments, the constitution and whether or not we're willing to live up to them or not.
Jeffrey Rosen: Adam, your closing thoughts about what a possible future constitutional crisis might look like.
Adam Liptak: Well, we've sketched out what some of the worst case scenarios are, but I guess I have to be hopeful. Our constitution is the oldest national constitution in force in the world. It served us well. Although people seem hell bent to test it, I suspect it's resilient enough to handle the foreseeable crises. People will find a way, within the constitutional structure, to resolve their differences.
Jeffrey Rosen: Keith, the last word for you. You ended with a possible scenario where court packing could be motivated by a disinclination to obey the rule of law. Is that a new category of constitutional crisis, or does it fit within your existing ones? How optimistic or pessimistic are you that it might occur?
Whittington: Well, I want to be relatively optimistic. I do think there is some worrisome tendencies in our current political culture, in part, connected to partisan polarization that we just so distrust the other side and we so dislike the things that they are trying to do that we're unwilling to compromise and maybe eventually unwilling to even play by the traditional rules because we're just not willing to let the other side win anything.
Ultimately, constitutions are designed to try to get people to cooperate, try to get people to play by the rules and to come to some compromises. The constitutional system will break down if we're not ever willing to do that. I think the optimistic hope is that we have found our way through very deep divisions in the past. And at times when we've had very fundamental disagreements about what the future of the country ought to look like, and there was a lot of distrust with the other side, and yet despite that distrust, despite those disagreements, people found ways to compromise, to come to agreements and understood that their long-term interest was invested in maintaining the constitutional system.
I think that will win out in the present situation as well. That despite the distrust, despite the disagreements, on both sides of the aisle, there will be people who recognize that their long-term interest is to sustain the constitutional framework and not let things get pushed too far.
Jeffrey Rosen: The constitutional system will break down if we're not able to compromise. Thank you so much Keith Whittington and Adam Liptak for a truly illuminating and nuanced and clarifying discussion of what a constitutional crisis might look like. Thank you both also for your guarded optimism that we may avoid the abyss.
Keith, Adam, thank you so much for joining.
Adam Liptak: Thank you.
Whittington: Pleasure to be here.
Jeffrey Rosen: Today's show was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Lana Ulrich and Jackie McDermott. Please, rate, review, and subscribe to We the People on Apple Podcast and recommend the show to friends, colleagues, or anyone who is hungry for a weekly dose of constitutional debate.
Always remember, dear We the People friends, that the National Constitution Center is a private non-profit. We rely on the generosity, the passion, the engagement, the dedication to lifelong learning of people like you who are taking the time to listen to this show and educate yourself about the best arguments on all sides of our constitutional debate. You can support our mission by becoming a member at constitutioncenter.org/membership. Or, give a donation of any amount to support of work, including this podcast, at constitutioncenter.org/donate.
On behalf of the National Constitution Center, I'm Jeffrey Rosen.