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Trump's Constitutional Conflicts Are Exposed

Timothy L. O'Brien
Trump's Constitutional Conflicts Are Exposed

(Bloomberg Opinion) -- Just before boarding Marine One on the south lawn of the White House on Monday evening, President Donald Trump was asked by a reporter why he was defying a Congressional subpoena seeking testimony from Don McGahn, his former counsel. McGahn was a key witness to the events weighed by Special Counsel Robert Mueller when he was deciding whether the president obstructed justice by trying to derail federal prosecutors’ Russia probe, but the Justice Department asserted in a legal memorandum on Monday that “Congress may not constitutionally compel the president’s senior advisers to testify about their official duties.”

Trump took that memo as a cue to order McGahn to stay mum.

In the president’s view, none of this should be thought of as partisan hardball or an effort to keep the Oval Office beyond the reach of the law and Congressional oversight. Instead, as he explained on the White House lawn, the Justice Department was embracing something larger and of greater consequence than even him.

“Well, as I understand it, they’re doing that for the Office of the Presidency, for future presidents. I think it’s a very important precedent,” he said. “And the attorneys say that they’re not doing that for me; they’re doing that for the Office of the President. So we’re talking about the future.”

Despite the extent to which Attorney General William Barr’s recent blocking-and-tackling for Team Trump has tainted the Justice Department’s reputation and undermined old-fashioned notions like “law enforcement,” the agency’s reasoning (if not its motivation) may, at first glance, appear sound on this one. In giving Trump a legal basis for blocking McGahn’s testimony, Barr’s department cited nearly five decades of what it described as bipartisan consensus within the agency that “testimonial immunity is rooted in the constitutional separation of powers and derives from the President’s independence from Congress.”

All well and good – in theory. The Trump presidency, however, has a way of turning theory, and values, on their heads. In the blink of an eye on Monday evening, Trump dropped any pretense of being a constitutional scholar protecting the presidency’s future when a reporter followed up the McGahn question with an inquiry about a separate ruling.

That latter ruling, issued Monday by Judge Amit Mehta of the U.S. District Court for the District of Columbia, found that the House Oversight Committee had a right to review Trump’s financial records. Mehta said that according “to the Oversight Committee, it believes that the requested records will aid its consideration of strengthening ethics and disclosure laws, as well as amending the penalties for violating such laws.” Mehta also pointed out that the committee believes Trump’s financial records will allow it to ensure that the president complies with anti-bribery guidelines outlined in the Constitution.

“It is simply not fathomable that a Constitution that grants Congress the power to remove a president for reasons including criminal behavior would deny Congress the power to investigate him for unlawful conduct – past or present – even without formally opening an impeachment inquiry," Mehta noted. To that end, he ordered that Trump’s longstanding accounting firm, Mazars USA, produce documents it prepared for the Trump Organization going back to 2011.

Mehta’s ruling upended Trump’s efforts to block the release of the accounting records, an effort Trump’s lawyers claimed was necessary because Congress wasn’t seeking the records as part of any authentic legislative actions. That was always a weak argument and Mehta’s ruling emphasized Congress’s broad oversight authority. Trump’s lawyers are certain to appeal because the ruling also undermines similar justifications used by the Treasury Department to withhold Trump’s tax returns from Congress, as well as arguments made by his lawyers in a separate case seeking to block Deutsche Bank AG and Capital One Financial Corp. from releasing their Trump-related records.

Back on the White House lawn, Trump was having none of it.

“Well, we disagree with that ruling,” the president responded Monday evening when asked about the Mehta ruling. “It’s crazy – because you look at it; this never happened to any other president. They’re trying to get a redo. They’re trying to get what we used to call in school: a deal – a ‘do-over.’”

The sole reason the Mehta ruling exists, per the president, is to bolster a broader attempt to overturn the results of the 2016 election. It was inevitable, of course, that the noble goals of protecting the presidency’s future that Trump ascribed to the Justice Department memo wouldn’t shape his understanding of the Mehta ruling. In fact, he pointed out to reporters that Mehta is an “Obama-appointed judge.”

Well, that’s true. But what Trump also failed to mention on the south lawn is that Steven Engel, the assistant attorney general who signed the Justice Department memo allowing his advisers to avoid testifying, is a recent Trump appointee who served in George W. Bush’s Justice Department as well (and was the author back then of controversial memos that provided a legal rationale for the use of torture by U.S. forces during the Iraq War).

It’s well understood by now that the president reduces legal disagreements and Constitutional battles to political hackery when it serves his purposes. And, in fairness, political biases and political infighting will be present on both sides when the stakes are as high as they are currently. But the country’s Constitutional direction is in play here too, and that’s much too important to be obscured by raw politicking. So let’s try to look beyond that.

Instead, let’s decide what kind of presidency we want the country to have in the future, just as the president did on Monday evening. Is it the presidency he, Barr, and Engel envision, unfettered by Congress and an imperial force unto itself? Or does it remain largely within the boundaries that the Constitution and its framers defined and which Mehta affirmed in a ruling that offered a rich history of Congressional oversight and the separation of powers?

While you’re busy making up your mind, the president of the United States is happy to poison the well. After climbing aboard Marine One on Monday night he flew to a rally in Pennsylvania. “Maybe if we really like it a lot and if things keep going like they’re going, we’ll go and we’ll do what we have to do, and we’ll have a three [term presidency] and a four, and a five," he told the crowd there. He went on to accuse those who were “spying on our campaign” of “treason” amid chants from the crowd of “lock them up, lock them up.”

“Well, we have a great new attorney general who’s gonna give it a very fair look, very fair look," the president assured the crowd.

To contact the author of this story: Timothy L. O'Brien at

To contact the editor responsible for this story: James Boxell at

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Timothy L. O’Brien is the executive editor of Bloomberg Opinion. He has been an editor and writer for the New York Times, the Wall Street Journal, HuffPost and Talk magazine. His books include “TrumpNation: The Art of Being The Donald.”

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