If it wasn’t clear before, then it is now: Trump’s White House has decided to wage war on the principles of transparency and oversight, arguing in a series of recent confrontations with the law enforcement community and Congress that the executive branch has the authority and independence to decide for itself whether it has to respond to – and even recognize – checks on its power.
That muscularity surfaced during Attorney General William Barr’s Senate testimony last week, when he fended off hours of questions about how he oversaw the disclosure and interpretation of Special Counsel Robert Mueller’s report on his Russia-Trump investigation. In response to questions about whether Trump had tried to impede or derail Mueller’s probe, and had therefore obstructed justice, Barr at one point said presidents had the power to upend any federal investigation – and to make up his or her mind whether the underlying reasons for a probe were robust enough for it to continue.
“The president, who has constitutional authority to supervise proceedings – if in fact a proceeding was not well-founded, if it was a groundless proceeding, if it was based on false allegations, the president does not have to sit there, constitutionally, and allow it to run its course,” Barr said.
In short, if the president doesn’t like a federal investigation, even if it’s about him or her, and makes a case that it’s being conducted in bad faith, then they can stop it. (This might recommend all future presidents to take to Twitter, perhaps, to poison public sentiment about any probe involving the Oval Office.) It’s no shock, then, that Barr’s Justice Department gave Mnuchin the legal argument he needed to keep Trump’s tax returns under wraps.
Trump’s private attorneys are on board with these arguments too. In a lawsuit last week that they filed on behalf of Trump, his three eldest children, and his company against Deutsche Bank AG and Capital One Financial Corporation, they argued that neither company should comply with Congressional requests for the Trump family’s financial records because doing so violated the family’s financial privacy and exceeded Congress’s constitutional mandate. And how does the lawsuit define Congress’s mandate? It claims legislators can only legislate and therefore don’t have constitutional authority to engage in oversight or investigations of the presidency. Congress can only take actions that are tied to existing legislation, the lawsuit asserts.
That, of course, is also Mnuchin’s argument. In the language of the Trump family’s lawsuit, none of this is about legislation, it’s all about partisan politics. Investigations of the president, the lawsuit says, are taking place only to “ferret about for any material that might be used to cause him political damage,” and “no grounds exist to establish any purpose other than a political one.” That’s remarkably similar to Barr’s repeated observation about the origins and goals of the Mueller probe, one he emphasized during his press conference on April 18 when he released the report: “The president was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks.”
Defining Congressional oversight as legitimate only when it’s tied to legislation helps keep Congress off your back, obviously. But that doesn’t mean it’s the proper definition or that it’s in the broader, non-partisan public interest to define it as such. Effective oversight, as the Constitution’s framers clearly understood, involved separation of powers and checks and balances. Congress is empowered to monitor the presidency, and denying it any supervisory capacity beyond legislation leaves it hamstrung – intentionally.
Trump is the most financially conflicted president of the modern era. Unlike recent predecessors in the Oval Office, he has chosen not to voluntarily release his tax returns. That limits the public’s full understanding of the financial or business pressures that might inform his policymaking, an understanding that is basic to ethical and transparent governing. It’s the kind of situation that calls for aggressive Congressional monitoring. But in the era of Mnuchin, Barr and Trump, this view is unlikely to prevail unless legislators take the battle just as seriously as the White House does.