Skip to content
Search

Latest Stories

Top Stories

A court must decide: Does the law still apply to everyone, the president included?

President Donald Trump

Allowing President Trump's stonewalling to continue "without the potential of a judicial backstop would gut Congress' ability to effectively check executive overreach and lawbreaking," writes former Rep. Tom Coleman.

Drew Angerer/Getty Images

Coleman was a Republican member of the House from Missouri from 1976 to 1993. He is a retired lobbyist and an advisor to the Protect Democracy Project, an anti-authoritarian watchdog group.

It is a bedrock American principle that no one, not even the president of the United States, is above the law. The president, like all Americans, must pay taxes, must give evidence when sought by a court or Congress, and must follow the law. If this principle is to survive, the D.C. Circuit Court of Appeals must reverse a ruling that Congress cannot sue to enforce subpoenas of executive branch officials.

In the wake of the report from special counsel Robert Mueller, last April the House Judiciary Committee subpoenaed former White House counsel Don McGahn to provide testimony about President Trump's efforts to obstruct the investigation of Russia's meddling in the 2016 election. The White House informed the committee that the president ordered McGahn not to appear, asserting that certain presidential aides are "absolutely immune" from being forced to testify — a privilege no other president has ever claimed. As a result, the committee sued to enforce its subpoena.

In February, a three-judge panel of the D.C. Circuit punted on the central question, ruling 2-1 their court does not have the power to settle this dispute between the congressional and executive branches. If that is allowed to stand, Congress' ability to conduct legitimate oversight will be severely limited and Trump will be further emboldened to ignore our constitutional system of checks and balances.

Sign up for The Fulcrum newsletter


Fortunately, the full appeals court has agreed to review that ruling, starting with oral arguments April 28. I joined a bipartisan group of 96 former members of Congress and executive branch officials on a brief urging the full court to reverse the three judges. We all understand Trump's unprecedented stonewalling goes well beyond the sort of normal back-and-forth between branches during oversight discussions that we witnessed when we were in office. Allowing his behavior to continue without the potential of a judicial backstop would gut Congress' ability to effectively check executive overreach and lawbreaking.

There is one silver lining in the court's initial decision: Two of the three judges expressed deep skepticism about Trump's claim of "absolute immunity," which he's using to keep aides and former aides from testifying to Congress. The court's rejection of this argument is so important because, sadly, there are many examples of Trump's team trying to exceed the constitutional limits placed on the presidency.

In case after case, Trump has argued he cannot be held accountable. In three cases now before the Supreme Court he has argued that, not only can Congress not investigate him, neither can state nor federal law enforcement officials. The obvious question: Who can investigate presidential wrongdoing? The answer, according to the president: Nobody! Under his view, a president can break the law with impunity. Trump's attorneys even told a judge that the president could shoot someone dead and escape all legal consequences while in office.

These are dangerous arguments on their own, but the president and his lawyers are also concealing their true meaning by engaging in a dangerous shell game to evade accountability. For example, while the administration was telling federal courts — including the D.C. Circuit in the McGhan case — that they have no authority to enforce congressional subpoenas, the president's lawyers were simultaneously telling Congress it could not impeach Trump for obstruction of Congress because it should have relied on the courts to force the administration to turn over information.

One of the president's Senate impeachment trial lawyers, Alan Dershowitz, even claimed that "abuse of power and obstruction of Congress are outside the range of impeachable offenses." So according to the president, he can ignore congressional subpoenas even in the context of an impeachment proceeding and courts can do nothing about it, and he can't be impeached for it. Stripped down to its essence, this argument would mean that no one — not law enforcement, not courts, not Congress — may investigate him or hold him accountable for abuse of power.

The president's argument is radical and wrong. Our Founders did not create a presidency beyond the law, above any checks and balances, and answerable to no one but himself. Quite the opposite.

James Madison, frequently described as the "Father of our Constitution," would no doubt be joining our legal crusade if he were alive today. Our fourth president — like me, a former House member — recognized the human temptation to gather power. He anticipated Trump's arguments when he wrote in Federalist 48 that "the accumulation of all powers legislative, executive, and judiciary, in the same hands ... may justly be pronounced the very definition of tyranny."

The American answer to tyranny, of course, required our Founders to revolt against an unaccountable king. They wrote our Constitution to assure that they, and we, would live in a democracy. Our nation's history illustrates the president's claims to monarchical immunity are hollow and weak.

Americans who cherish our democratic system, and the checks and balances that sustain it, are depending on the courts to reject the president's repeated attempts to subvert the Constitution and the principle that — no matter your station in life — how high your office, how deep your pockets or how many lawyers you may have, the law applies to everyone.

Read More

US Capitol

Each branch of government needs to get serious about restoring the public's trust.

Andrey Denisyuk/Getty Images

We need a government that works

Frazier is an assistant professor at the Crump College of Law at St. Thomas University and a Tarbell fellow.

The first — and really only — order of business for the government is to solve problems beyond the grasp of a single person or a small community. In exchange for that service, we the people surrender some of our income and liberty. This grand bargain breaks down when the government decides it’s got other things to do besides take care of everything from our sewage to our space debris.

The longer the government falls short of our expectations, the more likely the people will be to opt out of their own obligations, such as voting. This dangerous tit-for-tat is hard to reverse. A less effective government sparks a less dutiful public, which makes it harder for the government to perform, and so on.

Keep ReadingShow less
People wading in a river, in front of a destroyed house

Workers walk through the Rocky Broad River in Chimney Rock, N.C., near a home destoryed by Hurricane Helene.

Matt McClain/The Washington Post via Getty Images

Project 2025 would have 'catastrophic' impact on hurricane warnings

Raj Ghanekar is a student at Northwestern University and a reporter for the school’s Medill News Service.

Residents in the southeastern United States are still recovering from devastating damage brought on by back-to-back hurricanes. As federal, state and local officials continue working to deliver aid, experts say the country would be less prepared for future hurricanes if proposals included the conservative plan known as Project 2025 were to be put in place.

The National Oceanic and Atmospheric Administration houses the National Weather Service and National Hurricane Center, which are vital to predicting these cyclones. But the 920-page proposal published by the Heritage Foundation, a conservative think tank, argues NOAA “should be dismantled” and includes steps to undermine its authority and position leading the country’s planning for severe weather events, such as providing official emergency warnings.

Keep ReadingShow less
People walking alongside a river

Migrants from Guatemala prepare to cross the Rio Grande, to enter the United States in February. The best way to address immigration is fix problems caused by past interventions in foreign countries.

Andrew Lichtenstein/Corbis via Getty Images

Immigration isn't a border issue – it's caused by U.S. interventions

Yates-Doerr is an associate professor anthropology at Oregon State University and the author of “Mal-Nutrition: Maternal Health Science and the Reproduction of Harm.” She is also a fellow with The OpEd Project.

Immigration is a hot-button topic in the presidential election, with Vice President Kamala Harris and former President Donald Trump both promising to crack down hard at the border. But neither candidate is talking about a root cause of immigration: the long history of U.S. meddling, which has directly resulted in displacement. If our politicians really wanted to address immigration, they would look not at the border but at past actions of the U.S. government, which have directly produced so much of the immigration we see today.

Keep ReadingShow less