The U.S. Court of Appeals for the District of Columbia held arguments by phone on Tuesday in a case pitting the Trump administration against the House of Representatives over the latter’s power to enforce a subpoena for former White House Counsel Donald McGahn’s testimony.
Doug Kriner, professor in Cornell University’s Government Department and author of the book “Investigating the President: Congressional Checks on Presidential Power,” says that if the court rules in favor of the Trump administration in this case, the principle of separation of powers could be threatened.
“National emergencies all but demand the expansion of executive power that can threaten the constitutional balance of power. And yet, even as presidential power has expanded dramatically since the Great Depression and World War II, investigative oversight has proven an important tool through which Congress has shone a light on executive missteps or abuse and reined in misconduct and presidential imperial tendencies.
“Today, however, that power is under an unprecedented assault from President Trump. Not only has the administration refused to comply with virtually any congressional subpoena, but it has used the cover of the COVID-19 pandemic to widen its war on oversight by refusing to comply with oversight provisions in relief legislation and removing independent inspector generals, the eyes and ears of Congress.
“The D.C. Circuit will soon decide whether the executive branch can defy Congress and eviscerate the power of oversight with impunity. Judicial precedents have firmly established that the power to investigate is essential to Congress’ legislative function. If the court upends this settled principle, it will remove one of the most effective checks Congress retains on executive aggrandizement. At stake is nothing less than the separation of powers.”