The former general counsel for the House of Representatives on Tuesday excoriated the Trump Administration for having “declared war on congressional oversight” without regard for the deleterious long term effects of such a strategy.
In an incisive op-ed penned for The Atlantic, attorney Kerry Kircher, who formerly served as the House GOP’s general counsel during Barack Obama’s presidency, warned that the administration’s defiance and obstruction of congressional subpoenas poses a pernicious threat to the America’s separation of powers.
“The executive branch is the operational arm of the federal government,” Kircher explains. “It administers the multitude of federal programs that touch on the lives of nearly every American, employs the bulk of the federal workforce, collects and holds our tax remittances, spends well in excess of 99.9 percent of all federal dollars, controls the armed forces, exercises prosecutorial and law-enforcement functions, and so on.”
Kircher then clarified the role congressional oversight plays in ensuring that the awesome powers of the executive branch are properly wielded in a manner that doesn’t curtail Americans’ civil liberties.
“Congressional oversight and investigation help preserve our individual liberties by informing Congress about the administration of existing laws and the need for new laws; by exposing overreach, corruption, and mismanagement by executive-branch officials; and, ultimately, by enabling voters to make more informed decisions at the ballot box,” Kircher wrote.
Kircher, who spent more than 20 years in the House’s Office of General Counsel and worked under three U.S. Presidents, two of whom were Democrats, understands that partisanship will always play a role in the oversight process, but notes that under President Donald Trump, the administration has taken an unprecedentedly adversarial and dangerous stance against constitutionally mandated checks-and-balances.
“All prior administrations chafed when Congress asked difficult questions or sought potentially embarrassing documents; all resorted to characterizing Congress’s motives as ‘political’ when the inquiring congressional chamber was controlled by the opposite political party,” he wrote. “The Trump administration—as it has in so many other dangerous ways—again has set itself apart, this time in the unprecedented degree to which it has resisted congressional oversight. In the space of just a few months, Trump has declared war on the House’s investigation of the executive branch—and, effectively, on the Constitution itself.”
Kircher then recounted the only two times House-issued subpoena cases ended up in court during his tenure. The first case, Committee on the Judiciary v. Miers, occurred in 2007, under Speaker Nancy Pelosi, and stemmed from the George W. Bush White House’s attempt to claim senior aides were immune from congressional subpoenas, a position the U.S. District Court did not agree with, eventually forcing the aide to testify with limited immunity.
The second case, Committee on Oversight and Government Reform v. Holder, occurred in 2011, when John Boehner was speaker and attorney general Eric Holder refused to produce documents related to the Obama Administration’s botched “Fast and Furious” operation. In that case, Kircher wrote, the committee ultimately “obtained many, although not all, of the documents it had sought.”
But Kircher’s most ominous warning was saved for what may happen if these cases ever reach the Supreme Court, and how the newly entrenched conservative majority could portend a new era of limited executive oversight.
What the Miers and Holder cases do not tell us, of course, is how a Supreme Court, which includes two Trump appointees and a conservative majority—in an era when conservative ideology embraces very expansive notions of executive power—will rule on any of the congressional-oversight cases that end up on its docket. If you care about your individual liberties, and if you believe as I do that the vigorous exercise of our system of checks and balances is central to the preservation of those liberties—regardless of who the president is—you should pray that the Supreme Court takes the long view and that it resoundingly reaffirms the primacy of congressional oversight of the executive.
Kircher appears to be making the media rounds on these issues. Just five days ago, Kircher spoke with Law.com and noted that House Democrats are getting pro bono help in cases against the Trump Administration. Kircher said that, during his time as House General Counsel, the unpopularity of certain Republicans legal causes meant that there weren’t exactly attorneys lining up to work for free between 2011-2016.
“It wasn’t like I could have gotten top-notch representation on a pro bono basis to do that,” he said.
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