Dems Must Fight

But do it in ways that bring the public with them.

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Editor’s note

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I agree with those who say that power struggles among the three branches of the federal government are fairly historically routine. Indeed, conflict is baked into the constitutional cake, as it were. But Donald Trump is going far beyond what’s been routine. It’s as if he’s taken a page from the late US Senator Harry F. Byrd (1887-1966).

Byrd advanced what came to be known as “Massive Resistance,” a legal strategy that preferred rather to shut down whole school systems in Virginia than racially integrate them. The president is acting similarly. Rather than work with Congress and behave lawfully, the White House is trying to shut down checks and balances. Last night, the Treasury Secretary said he would not hand over copies of the president’s tax returns.

Steven Mnuchin said the House Ways and Means Committee does not have a “legitimate legislative purpose” for its request. We should be very clear about that. That’s transparent bullshit. First, the statute in question does not require justification. It says only that the Treasury Secretary “shall furnish” asked-for documents. Second, Mnuchin’s decision comes amid a passel of others cynically aimed as blocking the Congress. The only one lacking legitimacy for acting, or not acting, is Mnuchin.


As Montesquieu might say, they must meet power with power. They can’t do that in court.


Mnuchin also said he was getting legal guidance from the Justice Department, which brings US Attorney General William Barr into the picture. Per counsel, Mnuchin said that he was “not authorized to disclose the requested returns and return information.” (He said the department would provide a detailed legal justification soon.) Again, transparent bullshit. The law is clear, and the White House is clearly breaking the law.

With the law on their side, you’d think the Democrats would take Mnuchin to court for non-compliance, and that indeed appears to be what Ways and Mean Chairman Richard Neal has in mind (though his decision about what’s next is pending). I think a court battle is fine, but it shouldn’t be all. The Democrats have many tools. As Montesquieu might say, they must meet power with power. They can’t do that in court.

Fortunately, Neal can follow Jerry Nadler’s lead. The chairman of the House Judiciary Committee is in his own fight with the attorney general over the release of a full and unredacted version of the Robert Mueller report. (Nadler is negotiating directly with Mueller himself about testifying before his committee.) Barr blew a deadline Monday. Again. Nadler is expected to hold a vote of contempt. Once that clears committee, it goes to the floor, where it triggers another court action. While that’s happening, the House can launch concurrent actions that could be pretty much whatever the majority wants. These might include contempt, fines, legislation, impeaching Barr or whatever. Mnuchin is positioning himself similarly. We’ll see what Neal decides to do next.

I think it’s important to have this fight in the Congress for two reasons. One is a matter of principle. Looking to a federal judge to rule in their favor is actually an authoritarian maneuver if you think about it. The House Democrats would be surrendering their democratically derived power in exchange for an appointed judge to help them beat the president. This impulse among Democrats to seek favorable rulings is understandable but regrettable, because it suggests they really believe there are applicable rules independent of the partisan forces set in opposition. In fact, there are no rules. (There used to be boundaries of compromise during the era of bipartisan consensus, but that era is ended.) There are only good or bad outcomes. Good or bad outcomes don’t come from judges. They come from actions taken in open combat.

Two is the need for educating the public. Even if the Democrats lose a battle against a president with authoritarian impulses (by lose, I mean presumably because the GOP controls the Senate), they will have done a lot to educate people who still don’t quite realize how lawless this presidency is. The conventional thinking, I’m guessing, is that a Republican president is bickering with Democrats, per usual. That’s wrong. As I said, this is Massive Resistance to the routines of the constitutional order (even if those routines have historically featured struggles for power). In fighting for Trump’s tax returns in court, the Democrats might win a ruling but lose a chance to explain why they had to crush him while flexing their own anti-authoritarian bona fides.

Trump will probably balk no matter what happens. Whether the House Democrats win in the courts or in the Congress, the administration will probably refuse to recognize congressional authority. The question at that point will be: what then? What do you do when a man with immense power doesn’t do what he’s supposed to? I don’t know. But I do know the Democrats must fight in a way that brings the public with them.

—John Stoehr

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