Let's Face It: Trump Will Keep Defying Subpoenas. Here's How We Can Make Presidents Obey | Opinion

As a lawyer and former senior counsel to a congressional committee, I am dumbfounded by what is going on with the Trump administration's defiance of congressional subpoenas. I am not in disbelief that the Trump administration is defying so many congressional subpoenas—its mindset on these issues has increasingly hardened with every passing week. What I find hard to believe, though, is that in the 232nd year since the adoption of the U.S. Constitution, and 45 years since the Supreme Court decision upholding the subpoena of the Nixon tapes during that impeachment process, there is still no mechanism developed to expedite the consideration by the courts of congressional subpoenas of the executive branch.

We are a country whose entire system of government is based on the notion of checks and balances. If Congress cannot get its hands on the information it needs from the executive branch to hold that branch accountable—through investigation, legislation or even impeachment—then Congress' ability to function under our three-branch separation of powers framework is totally compromised. The key tool that Congress has at its disposal to get at that information is the power to subpoena. Many pundits and commenters have made this point. The question is what needs to be done about it?

The unfortunate truth is nothing can or will be done about it unless President Donald Trump is defeated. The very first reform that a Democratic president needs to sign onto is the implementation of an expedited procedure for judicial consideration of congressionally issued subpoenas to the executive branch. This is the very first box that needs to be checked among the many course corrections that need to occur after the Trump administration is replaced.

Whether the Democrats take the Senate or not, such a reform can be enacted because a Republican Senate facing a Democratic president will, out of self-interest, finally want some meaningful ability to enforce their subpoenas against a new Democratic administration.

The reason this needs to happen first is that disputes invariably develop between Congress and the executive branch, even when both branches are in the same party's hands, so this reform needs to be put in place right away, before any controversies develop that would cause a new president to want to evade this kind of crucially needed process change.

Specifically, we need a statute that would give Congress a speedy path to subpoena enforcement against the executive branch. It is clear that sending the Capitol police down to the White House to enforce a subpoena by arresting administration personnel is not a practical solution. When confronting President Trump, who raises the specter of "Civil War" when discussing the issue of congressional enforcement of its prerogatives, it's plausible that he might actually invite a violent confrontation between Capitol police and executive branch security personnel in an effort to try to make Congress look to his supporters not only unreasonable but physically hostile. Moreover, criminal contempt is not a realistic option for enforcing a congressional subpoena if the Justice Department is not going to pursue that remedy against its own administration, which would likely always be the case.

What is left is a civil suit brought by Congress against the president. However, as we are seeing played out in a number of such lawsuits today, these congressional subpoena cases are moving through the courts at the speed of molasses.

Congressional attempts to enforce subpoenas in the courts are treated similarly to any other litigation. They commence the lawsuit at a federal district court, with a trial-type proceeding without any specific timetable for decisions by that court required, and then undergo an inevitable appeal to the U.S. Circuit Court, which can take substantial additional time. Moreover, the litigation process does not end there.

As we are seeing now, litigation in the case of the Trump tax returns sought by the House Committee on Oversight and Reform has already taken six months, and while the Court of Appeals has ruled in favor of Congress that the subpoena is enforceable, Trump's lawyers will inevitably appeal for en banc review by the full Court of Appeals, and then to the Supreme Court. While neither Court may decide to review the matter further, just the process of seeking review will take several more months. In addition, the subpoena for Trump's tax returns issued by the House Ways and Means Committee five months ago is still being reviewed by a federal district court judge appointed by President Trump.

The Trump administration strategy today is to use the court process to delay, delay, delay—making it conceivable that many of the subpoenas that have been issued, despite the strength of the House's position, will not be resolved for a number of months to come, and potentially not before the 2020 elections. As one congressional source told The Washington Post, "Trump is waging the most aggressive and expansive legal battle we've ever seen with Congress to conceal the truth." Congress right now is impotent to do anything about that.

What is called for then is a very clear and straightforward process for resolution of these disputes. If a subpoena is voted out by the relevant congressional committee and then supported by a vote of the full House or Senate body, and the administration does not comply in a timely manner indicated in the subpoena, the case should be immediately heard by the U.S. Court of Appeals for the D.C. Circuit with a usual three-judge panel. The panel would be required under the statute to determine whether it is a legitimate congressional exercise of the subpoena power and evaluate any claims to executive privilege or other defenses raised by the White House or administration, and render a decision within 30 days. That decision would be reviewable by the U.S. Supreme Court if the court chose to take the case, and if so, it would be required to render that decision within 30 days. This same process should also be applied to subpoenas aimed at private citizens or personal and corporate documents that the administration challenges by asserting executive privilege claims.

Donald Trump
President Donald Trump walks into the Rose Garden at the White House on October 15 in Washington, D.C. Mark Wilson/Getty

This process would impose real deadlines and cut out lengthy proceedings that now take place at the federal district court level, and remove the potential for lengthy en banc Court of Appeals review. The Court of Appeals has authority in far more complex cases to review the underlying facts of a case independent of a federal district court finding, such as under patent law where the U.S. Court of Appeals for the Federal Circuit is empowered to review complex patent cases "de novo" (anew), so such an approach would by no means be unprecedented. Moreover, a three-judge appellate court panel removes the possibility of a single district court judge's potential political leanings or view of executive power determining the outcome of a case. Additionally, by ensuring that subpoenas qualify for this expedited consideration only if they are both voted out of committee and backed by the entire House or Senate, it avoids the situation that developed during the Clinton administration, where a single committee chairman of the House Government Reform Committee issued over 1,000 subpoenas to that administration on a unilateral basis. Congressional abuse of the subpoena process like that should not be buttressed by this kind of expedited process.

If Congress does not have the ability to hold the executive branch accountable when an administration totally resists that accountability, the role of Congress under the Constitution is either meaningfully diluted or completely eviscerated. We are witnessing right now how, even in an impeachment process, an administration can shield itself from legitimate requests for information and argue that an investigation is illegitimate because Congress is rushing to judgment without determining the facts—a totally circular claim that attempts to undermine Congress' utmost check on the executive branch.

This process will enable the courts to remain an independent arbiter of these disputes between the other two branches of government and act without delay, as well as restore Congress' proper role in our system of checks and balances. All the leading Democratic presidential candidates have strong congressional roots. Let's hope that whoever wins the election remembers the importance of our system of checks and balances from his or her new perspective and that this reform box is checked right away after the 2020 election.

Tom Rogers is a senior contributing columnist for Newsweek, the founder of CNBC and a CNBC contributor. He also established MSNBC, is the former CEO of TiVo, currently executive chairman of WinView and is former senior counsel to a congressional committee.

The views expressed in this article are the writer's own.