Adam Schiff (Photo by Win McNamee/Getty Images)
We talk a lot about how “weak” the Congressional subpoena power is, but we have to remember why the power is so weak. The abuse of executive power required to make a Congressional subpoena “weak” is so massive, and we’ve gotten so used to President Donald Trump’s abuse of his office, that we really need to take a step back to see how violative Trump is behaving towards American norms and practices. Today’s non-testimony of Gordon Sondland is as good a case study as any.
Gordon Sondland was asked, not subpoenaed, to appear before Congress as part of its ongoing investigation into Trump’s apparent and admitted to extortion of the Ukraine in exchange for help with the 2020 election. Sondland, as the U.S. Ambassador to the European Union, reports to the Secretary of State, Mike Pompeo, who reports to the President of the United States, Donald Trump. But Sondland, Pompeo, and Trump all work for the people of the United States (technically) of which the House of Representatives are their most direct representatives.
Put another way, the people asked one of their employees to appear before their representatives to answer for how the people’s business is being conducted abroad, and that employee told the people to go f**k themselves. More than that, he claims that he was ordered to tell the people to go f**k themselves by the President of the United States.
That’s simply insane. You shouldn’t need a subpoena to compel an employee to explain themselves. That we even get into the realm of subpoenas represents a direct obstruction of a Congressional inquiry by the president. In a normally functioning democracy, that would be a fireable offense on the part of the president.
The House responded by issuing a subpoena for Sondland’s testimony. Most likely, Trump will order Sondland to ignore the subpoena as well.
Which brings another actor into our game: Attorney General William Barr. Barr, again, reports to President Trump, but is technically employed by the American people. His job, as the chief law enforcement officer in the country, is supposed to be to enforce the laws of the United States government. A Congressional subpoena is one such law, and the attorney general is supposed to take all steps to ensure compliance, including jailing people who refuse to testify under a duly executed subpoena, if need be.
Does anyone think Barr will do that? Of course not. Because Barr has shown himself to be a craven accessory to President Trump’s apparent crimes, not an independent actor with his own responsibility to the Constitution. It is likely that Barr will aide Sondland’s attempts to avoid congressional testimony, all at the behest of Donald Trump.
Barr, of course, should not even be in a position where he is making any decisions regarding any enforcement of this investigation, because he himself is implicated as one of the major accomplices or witnesses to Trump’s abuse of power. Asking him to help force Sondland to testify might be like asking a drug kingpin to force his connect to testify against him.
Again, in a normally functioning democracy, this would be unacceptable. Barr would be forced to recuse, a deputy would urge Sondland to comply, over the will of the president if necessary, and men would be dangling handcuffs in front of Sondland while he made his decision. The fact that none of that is going to happen should enrage people, regardless of party. But there is no more “regardless of party” in this country. Republican party apparatchiks have successfully convinced Republican voters that there is no more important identity than being white and Republican. Nothing can be allowed to threaten that, not even crimes committed by the president in plain sight.
It is in this context: where the employee of the American people fails to voluntarily comply with the law, where the secretary of state and the attorney general fail to uphold the Constitution, all in service of a criminal president who is supported by the spineless prevarications of his wholly owned political party, is where the Congressional subpoena power appears “weak.” If you put it on a solid booster rocket, the Space Shuttle can aid humanity’s exploration and understanding of the cosmos. On its own, it’s just a shell of fragile plastic. It can’t even fly.
Every president and executive branch officer going forward now gets to know that Congress can simply be ignored if the people they represent are too docile and distracted to take action. This will not end well for the American system of government.
Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.