Editor’s Note: In this weekly column “Cross-exam,” Elie Honig, a former federal and state prosecutor and CNN legal analyst, gives his take on the latest legal news and answers questions from readers. Post your questions below. The views expressed in this commentary are his own. View more opinion articles on CNN. Watch Honig answer reader questions on “CNN Newsroom” at 5:40 p.m. ET Sundays.
We are in the middle of a monumental battle between two branches of government, and thus far the executive branch has mercilessly pummeled the purportedly co-equal legislative branch. Much of that is a function of motivation: The White House, fighting for its survival, is willing to bite, eye gouge and kidney punch, while Congress – torn between pursuing justice and political expediency – isn’t even sure if it wants to fight at all.
In response to a spate of congressional subpoenas seeking information relating to the findings of Special Counsel Robert Mueller and President Donald Trump’s financial history, the White House has executed a simple but effective strategy: you’ll get nothing, and we won’t give an inch. The White House has offered up increasingly tortured legal explanations for its refusal to produce information, culminating with the novel and wholly unsupported claim this week that no senior adviser to the President can ever be compelled to testify in Congress.
Thus far, the strategy has succeeded. We are over one month removed from publication of the redacted Mueller report, and the executive branch has given Congress essentially nothing.
Congress has responded with barely a whimper. It has pursued only one case in the courts which it won in resounding fashion, with a federal judge reaffirming that Congress holds broad constitutional oversight power. (The White House has since appealed). Beyond that, all Congress has done is stage a weekly episode of “Empty Chair Masterpiece Theater” and issue vague lukewarm pronouncements about what it might do someday.
What should Congress do if it wants to toughen up and fight for its constitutional authority? First, dispense with the gimmickry and the ceremonial contempt votes and take every disputed subpoena – for Trump’s tax returns, the unredacted Mueller Report, Attorney General William Barr’s testimony in the House, former White House counsel Don McGahn’s testimony and possibly Mueller’s testimony, if the executive branch resists – directly to the courts.
No more soft deadlines; no more sternly worded letters. Congress has won its sole victory thus far in the courts, and it should prevail on most or all of the pending disputes because, as Judge Amit Mehta reaffirmed, Congress holds broad power to legislate, conduct oversight and impeach.
Congress also needs to make sure the executive branch doesn’t run out the clock. Normally, court proceedings can take many months or years, so Congress should request expedited review of its cases. Judge Mehta, understanding the importance of the inter-branch legal dispute before him, sped up the case over the White House’s objection. Other judges should follow suit.
And Congress should consider the nuclear option: exercising its power to tax and spend by withholding federal funding to the executive branch pending at least some reasonable compliance with requests for information. This approach carries political risk but is a powerful card that Congress needs to at least consider playing.
Round one of this fight has gone decisively to the White House. Unless Congress changes its approach, this will end up as a knockout.
Now, your questions:
Brian, Illinois: Is Congress allowed to ask for anything it wants?
No, Congress cannot subpoena anything it wants, but it does have very wide latitude to investigate and conduct oversight.
The Constitution grants Congress “all legislative powers” though it does not explicitly mention the right to investigate and conduct oversight. The Supreme Court has long held, however, that Congress inherently holds the power to gather information, including through use of subpoenas to compel evidence and testimony.
This week, Congress won the opening salvo in the first legal battle over a subpoena to the private accounting firm Mazars USA for information relating to Trump’s financial history. Judge Mehta rejected the White House’s argument that Congress overstepped its authority, noting that the key question is whether the congressional subpoena serves any legitimate legislative purpose – even a broad or hypothetical one.
Judge Mehta also held that Congress “has full authority to investigate whether the President may have engaged in illegal conduct” or otherwise abused his power. And this ruling is in line with previous rulings. In fact, no federal appellate court has struck down a congressional subpoena for being overly broad since the 1880s.
More legal disputes likely are coming over other subpoenas involving the unredacted Mueller report, Trump’s tax returns and other issues. While each of these legal disputes will turn on its own merits, the Mazars USA decision will be a strong precedent for Congress moving forward.
Jane, Massachusetts: Does Barr’s conclusion that Trump did not obstruct carry legal weight?
Barr’s conclusion in his four-page summary – which Mueller criticized for failing to capture the “context, nature and substance” of his findings – that Trump did not obstruct justice carries more political than legal weight.
Legally, Barr’s determination ensures that the Justice Department will not indict Trump under Barr’s watch. But, of course, Justice Department policy already precludes indictment of a sitting president. (However, both the policy and the Mueller report note specifically that a President can be indicted after leaving office).
Barr’s finding mostly has had a political impact. Barr publicly declared his “no obstruction” conclusion more than three weeks before he released the actual Mueller report – which, unknown to Congress or the public during that period, describes a series of “potentially obstructive acts” by Trump and details “substantial evidence” of those acts.
But first impressions tend to stick. By creating an initial “no obstruction” narrative, Barr enabled Trump to declare, “No Collusion, No Obstruction, Complete and Total EXONERATION.” (Trump recently downgraded his view to “essentially no obstruction.”)
While Barr’s declaration of “no obstruction” temporarily took wind out of the political sails for impeachment, the tide might be turning as the evidence builds that Barr misrepresented Mueller’s findings. Michigan Republican Rep. Justin Amash recently tweeted that, in his view, Barr “deliberately misrepresented Mueller’s report.” Ultimately, it is up to Congress, not Barr, to determine whether the political appetite exists to pursue impeachment.
Daryl, Hawaii: Didn’t the Mueller report say that there was no collusion on the part of the President or his campaign?
No, the Mueller report did not find there was “no collusion.”
First, as Mueller stated in the report, “collusion” is “not a specific offense or theory of liability found in the U.S. Code; nor is it a term of art in federal criminal law.” Indeed, “collusion” is a loaded political term that no real prosecutor would ever use – which is why Barr’s conspicuous use of the phrase “no collusion” was more befitting a political operative than a prosecutor.
Mueller did conclude that the evidence was insufficient to charge Trump or any of his campaign staffers with federal conspiracy crimes. But it was a close call, particularly regarding the June 2016 Trump Tower meeting. Donald Trump Jr. and other campaign representatives went into the meeting “expecting to receive derogatory information about Hillary Clinton from the Russian government.” But Mueller concluded that he could not charge a conspiracy primarily because of legal technicalities: difficulty quantifying the monetary value of hacked emails and problems establishing that Trump Jr. had sufficiently detailed knowledge of campaign finance laws.
Here are some other things Mueller found. The Russian government “perceived it would benefit from a Trump presidency and worked to secure that outcome” by committing crimes including computer hacking; the Trump campaign “expected it would benefit electorally from information stolen and released through Russian efforts;” the Trump campaign had dozens of “contacts” and “links” with the Russian government, and on several occasions, Trump campaign officials lied about those Russian contacts.
C. Aki, Hawaii: Did Barr admit in his testimony that he has not read Muller’s full report?
Barr has not admitted that he did not read Mueller’s full report, but his Senate testimony raised questions. When asked by Sen. Cory Booker about the section of the report describing how Trump campaign chairman Paul Manafort shared internal polling data with Russian operative Konstantin Kilimnik (which also had been widely reported publicly before the report’s release), Barr asked, “What information was shared?” Booker explained, “Polling data was shared, sir. It’s in the report, I can cite you the page.” Yet Barr still showed no sense of recognition, responding, “With who?”
There are only two realistic scenarios here. One, Barr did not read the entire Mueller report. Two, Barr read the report but either forgot the Kilimnik episode (unlikely, given the explosiveness of the revelation) or simply pretended he forgot – played dumb – to avoid having to answer potentially unpleasant questions about it.
It is important to understand just how little of the Mueller report has been meaningfully digested and understood. In a recent CNN poll, only 3% of the public said they had read the entire report, while 75% had not read any of it. Rep. Lindsey Graham and other members of Congress have admitted to not reading the entire report, and Amash tweeted that “Few members of Congress have read the report.”
This matters in my view because it is hard to read the report and come away with any conclusion other than (1) the Trump campaign “expected it would benefit electorally” from a massive criminal hacking effort by the Russian government, and (2) Trump obstructed justice. I believe that those in positions of power who have not read the report truly don’t want to see what’s in it.
Sharon, Illinois: After the landmark 1974 case – U.S. vs. Richard Nixon – how is Trump getting away with his abuse of executive privilege?
The Nixon decision exemplifies why Trump’s current use of executive privilege – to prevent the production of documents by McGahn, to shield the Mueller report from disclosure and possibly to prevent the testimony of Mueller himself – oversteps the law.
In Nixon, the Supreme Court unanimously (including three Nixon-appointed justices) held that executive privilege does protect some – but not all – communications between a president and his top advisers. The court ruled that the privilege protects “military, diplomatic, or sensitive national security secrets” but is not a blanket shield against potential criminal liability. None of the communications that Trump seeks to block relate to military or national security secrets.
Trump’s invocation of executive privilege should fail on other grounds as well. First, all legal privileges give way to the “crime-fraud” exception – meaning that a communication that an otherwise-privileged communication is not privileged if it relates to a crime or potential crime. Here, for example, Trump’s conversations with McGahn about firing Mueller (and then asking McGahn to lie about it) seem to fall within the crime-fraud exception.
Second, the White House likely has waived – or given away – the privilege with respect to McGahn because it already permitted him to speak with Mueller. Trump also declined to assert executive privilege regarding McGahn’s comments as quoted in the Mueller report, in essence waiving the privilege again. Typically, under the law, once a privilege is waived, it cannot be un-waived and put back in place.
The claim of executive privilege over the entire Mueller report is most confounding of all. The report itself is not a presidential communication with anybody. Trump already waived executive privilege over the report. And it’s hard to fathom how a document that anybody can buy at Barnes & Noble – even in redacted form – is somehow legally confidential.
Three questions to watch for next week
1) Will Congress bring more cases over disputed subpoenas into the courts?
2) Will Congress obtain an agreement from the executive branch and Mueller for his testimony?
3) Will any Republicans follow the lead of Rep. Amash in calling for impeachment, and will House Democrats coalesce around an impeachment strategy?
