The vote to impeach President Donald Trump brings to a head the battle that has raged for months between the president and Democratic members of the House.
Democrats and Trump have fought over everything from the meaning of the words in his July 25 phone call with Ukraine President Zelinsky to the president’s refusal to allow administration officials to testify. Trump has also refused to comply with Democrats’ requests for documents essential to their investigation.
The conflict is about more than the tug-of-war between Trump and the Democrats in the House. It is the latest, and most extreme, an example of a power struggle between the executive branch and Congress that has existed since George Washington was president.
That struggle comes down to one question: Can Congress effectively hold the president accountable?
Here are four stories that The Conversation published this year that attempt to answer that question.
- Nixon tested the limits – and lost
Way back in May – when many Americans didn’t know where Ukraine was, let alone the name of its president – presidential scholar Ken Hughes at the University of Virginia wrote about a congressional committee that had voted to impeach the president for defying congressional subpoenas.
Hughes’ subject was Richard Nixon and the Watergate scandal that ultimately forced him from office. But while those events were almost 40 years ago, Hughes wrote of the parallels between Nixon and the current U.S. president, Donald J. Trump.
“Like Donald Trump, Richard Nixon tried to stonewall congressional investigations into crimes allegedly committed in the White House,” wrote Hughes.
Hughes was referring to Trump’s behaviour during the Mueller investigation, months before Trump was under congressional scrutiny for his actions regarding Ukraine, before he had refused to provide documents that Congress had subpoenaed and before he had decreed that executive branch employees should defy Congress’ subpoenas.
Nixon wrote Hughes, held off Congress for a year, but ultimately lawmakers got access to presidential materials so damning to Nixon that he resigned.
Legal scholar Charles Tiefer at the University of Baltimore wrote about “the enormous struggle Congress in general, and the House Intelligence Committee in particular, has waged to exercise democratic accountability over presidential actions.”
Tiefer’s focus in his story is on the activities of intelligence agencies, especially when their work is done at the behest of the president.
As a former counsel to the House committee that investigated the Iran-Contra scandal, Tiefer has firsthand knowledge of how intelligence agencies, the president and the executive branch have tried to frustrate or avoid Congress’ attempts to hold them accountable.
Those efforts included secret CIA plots – undisclosed to Congress – to overthrow foreign governments and to assassinate the leaders of those governments.
The headline on Tiefer’s article captures his point: “Spies and the White House have a history of running wild without congressional oversight.”
- Separation of powers
In 1796, George Washington, the country’s first president, withheld documents the House of Representatives had requested from him regarding treaty negotiations with France.
Since Washington defied Congress’ request, similar conflicts have erupted between Congress and Presidents Monroe, Jefferson, Adams, Coolidge, Kennedy, Nixon and Reagan, among others.
That’s because “the Founders struggled with problems related to the separation of powers,” writes University of Missouri politics scholar Jennifer Selin. “The text of the Constitution, combined with subsequent legal analysis, shows the tension between a desire to separate the branches and the need to integrate the federal government’s core functions.”
Over time, Selin writes, the courts have interpreted the Constitution’s separation of powers sections to mean that the president is granted broad authority to conduct foreign affairs.
But Congress maintains the right to exercise oversight of the president – a right it has stressed since 1792, when it “first established a … committee to request executive branch documents related to foreign relations.”
- Courts hesitant to weigh in
Struggles over power among the political branches may be an old story, but Trump has taken that conflict to new levels, wrote Kirsten Carlson, a scholar of law and politics at Wayne State University.
“President Donald Trump’s refusal to hand over records to Congress and allow executive branch employees to provide information and testimony to Congress during the impeachment battle is the strongest test yet of legal principles that over the past 200 years have not yet been fully defined by U.S. courts,” wrote Carlson.
In fact, federal judges have been reluctant to get involved when presidents refuse to hand over documents to Congress. They have repeatedly said that the political branches should resolve such differences by negotiating with each other and compromising.
Carlson wrote that from 1789 to 2017, when Trump was inaugurated, federal courts had considered only five cases where the president withheld documents from Congress, claiming executive privilege.
Trump has claimed executive privilege over a dozen times when refusing congressional requests for information. Trump has not negotiated with Congress – as had previous presidents. He appears intent on taking the cases to court, forcing the courts to deal with a problem they had long avoided.