This week William Scharf, the counsel to the United States president, sent an extraordinary but weak threatening letter to Robert Garcia, the incoming chair of the House Oversight Committee. The letter is here and should be read carefully.
The letter is weak. The tell for many weak legal letters is how often “clear” is used. This is because if a position or proposition is clear, it does not need to be described as such. Here, the word “clear” is used five times in the text of the letter. We even get an “abundantly clear”.
The letter is threatening. The tone and content reeks of menace. Democrat legislators are being “monitored”. There is a warning of possible (“blatant”) criminal liability and of investigations. Garcia and his committee are told to be careful. They are being watched, they will be investigated and they will be prosecuted.
And the letter is extraordinary. Its essence is that the federal government is telling the legislature what the latter can and cannot do. But it is not for the presidency to define the role of the legislature in overseeing the executive. If oversight is at the fiat of the federal government, then it would hardly be oversight at all.
A recent Supreme Court decision held that the presidency should itself be free from such legal threats and granted the president a wide immunity from criminal liability. Yet here the presidency itself is using the threat of criminal liability to bully the legislature. The implication is that the White House believes that legal peril is, as the phrase goes, “for thee, but not for me”.
Yet Congress is expressly a co-equal part of the United States polity, with the president and the judiciary. Not one of these elements, according to the US constitution, has an absolute priority over the others. There are checks and balances. No one branch of the government can or should seek to intimidate another.
That Congress can investigate the presidency has been a feature of the constitution since the earliest times. And that Congress can investigate is not even disputed by the Trump presidency. Trump and his lawyer just want to have tame investigations, on the president’s terms.
Another odd feature of the threatening letter is its use of footnotes, referring to social media posts. The president and his supporters regularly write the most inflammatory things on social media. But in this letter, with what can only be mock solemnity, there are earnest-looking quotes from tweets and other social media posts.
The overall effect is one of desperation, of White House counsel spending scarce time scrolling for ammunition and “gotchas”. It contrasts with what should be the dignity of the office of White House counsel.
The purpose of the letter, of course, is to frame the battle ahead between the new Democrat Congress and the presidency, following the collapse of the president’s party at the midterm elections. The White House knows what is coming and wants to head it off. As such this supposedly legal letter is very much a political device.
This illiberal and misconceived letter, however, was met with a hard and refreshing response. Garcia is having none of this nonsense. His response was stark and scathing:
“Congress’ authority comes from Article I of the Constitution, not from the permission of the White House. Congress has wide latitude to conduct investigations and oversight, an authority inherent in the power to legislate.”
He added: “We are a co-equal branch of government and will not be deterred by baseless threats from a weaponized DOJ or from the President’s lawyers.”
This is the spirit. After a period of political timidity it looks as if those elements of the US political system which can check and balance presidential power will do so again. The powers to take on executive abuses and misuses of power were always there, but now they may be revived and made potent again. No wonder the White House and its lawyers are alarmed.
This is a time where there is a great deal of symbolism in what is happening in the US polity. Mississippi has just been won by the Democrats, and an Honor Guard at Arlington is unafraid to tell the secretary of defence to be respectful. The SS United States has sunk to the bottom of the sea. The gods are being bountiful in the supply of analogies and metaphors.
The sight of the executive using threats to evade oversight by the legislature is evocative of how Charles I sought to intimidate the English parliament before the civil war. That did not go well. And that this exercise in bullying will also end badly should be, well, abundantly clear.
