Executive privilege is not an absolute power, and it often must yield to other claims, such as Congress’s duty to properly conduct an investigation.
Now that Donald Trump is their presumptive nominee, elected officials within the Republican Party are faced with the difficult question of how they should respond. Some are saying it isn’t at all difficult—the people have spoken, by golly!—but I beg to differ. It’s a genuinely hard political question that ought to be framed by philosophical, institutional, and constitutional considerations.
By no means would I presume to dictate to GOP candidates on the ballot in 2016 what they should do as far as aligning with Trump or not. Those whose immediate interests are at stake will need to take the course that helps them continue to do the good we elected them to do. But I will insist that, however they assess the moods and opinions of the national and their local electorates, the aforementioned considerations should never be far from their minds.
The recent developments that point most clearly to these considerations are House Speaker Paul Ryan’s pointed refusal to endorse Trump, and the reported willingness of many Republican political leaders in my home state, Georgia, to embrace this new “standard-bearer.”
The Ryan “contretrumps” (if I may coin an expression) offers us some lessons. Ryan has confronted demands that he immediately bow to the outcome of the primary election process. We’ve heard all year that parties should respect election results, which has usually meant “hand the nomination to the frontrunner” even when an overwhelming majority of primary voters were still opting for someone else.
Indeed, parties should respect election results, above all in the general election. The mechanism for ascertaining the will of the people is the general election. That’s the result—mediated, to be sure, by the Electoral College—that most significantly registers the consent of the governed and confers legitimacy on the man or woman who enters the Oval Office at the end of the process. But how we get to the general election in November is, or at least ought to be, a different story. Political parties, as some have pointed out, are private organizations whose purpose is to nominate candidates (reflecting, more or less, the party’s views) who can win their elections.
In a nice turn of phrase, Speaker Ryan has reminded us that the party’s standard-bearer should bear the party’s standards. A primary election process with open primaries and candidate-centered campaigns may well serve as a gauge of a candidate’s ability to mobilize voters and master a wide array of important political techniques and technologies, but it doesn’t necessarily guarantee fidelity to the party’s central principles.
Parties indeed have to care what ‘the people” think; they have to win elections. But they’re not just about winning elections. To the degree that the two major political parties have pretty thoroughly “democratized” their nominating processes, they have let the means (“democracy”) dominate the end (devotion to a set of principles). Perhaps this experience will compel thoughtful political leaders to reconsider the nature of their organizations and the limits of democracy. And then perhaps they will seek to explain both these things to their fellow citizens. That would be a blessing.
Ryan’s pronouncement also tells us something about the separation of powers. He serves right now as the Speaker of the House. Donald Trump may or may not be elected President. One is in one branch of the federal government, the other, potentially, in another branch. Congress and the presidency, given their different electoral bases and their different constitutional responsibilities, shouldn’t be expected to march in lockstep.
The past century has seen enormous growth in the power and influence of the presidency, to the detriment of limited and responsible government. What better time than now to reaffirm the independence and importance of the legislative branch and to insist upon a chastened understanding of the executive branch?
While the President does have some independent authority in foreign affairs and some prudential leeway in administering the programs Congress has created, he or she for the most part executes what the legislature legislates. Rather than simply getting with the Trump program, which seems to involve an inflated and not very thoughtful understanding of the responsibilities of government, Paul Ryan and his colleagues should seize this opportunity to make the case for limited government, under a U.S. Constitution that in fact accords the legislature primacy, at least to a modest degree, in policymaking.
Indeed, with a presumptive nominee who does not seem to reflect the considered consensus of the party and who is widely unpopular in the general electorate (even as his opponent is as well), what better political moment for a principled reassertion of the independence and primacy of Congress? Congressional elections are of course not just national but local. They are not intended to be simple referenda on national political issues and moods. The individuals sent to Congress as a result of these elections are meant thoughtfully to address and represent the particular views of their constituents, not to bow to “the will of the people” as expressed in a self-proclaimed presidential mandate. And Congress is supposed to be a deliberative body, which it can’t be when an activist occupant of 1600 Pennsylvania Avenue is bullying its members into rubber-stamping the presidential agenda.
Barack Obama has typically had his way with or around Congress. Congressional Republicans have resented this, while their Democratic colleagues have been perhaps only too happy to see their policy preferences achieved by hook or by crook. Perhaps now, regardless of the outcome of the presidential election, at least the Republicans will have a political incentive to reassert the constitutional and institutional prerogatives of Congress.
Let me turn now to a matter of local concern for me: the willingness of the leading Georgia Republicans to hitch their wagons to Trump’s star. I think I understand their political calculation. They’re trying to catch a political wave, one that hadn’t yet crested back in March, when roughly two-thirds of Georgia Republican primary voters marked their ballots for someone other than Donald Trump. But someone should remind them that our political system is a federal system, which makes it possible in some areas for states to act independently of the federal government—more possible, to be sure, if the federal government is limited and chastened in the way I suggested above—and for state-level politics to develop and operate independently of what’s happening at the national level.
Taking this approach would, in a sense, be “countercultural,” because our media and our economy tend to emphasize the national at the expense of the local. But Republicans in this respect ought to go ahead and be countercultural. They ought to be faithful to their party’s historic principles, which would mean favoring local and state “diversity” over the homogenizing trends actively promoted by big business and big government. Given the recent behavior of Georgia’s GOP leaders, I’m not terribly hopeful, but you can’t fault me for trying.
I don’t know if anyone’s momentary political calculations would change if they took into account these philosophical, institutional, and constitutional considerations. But I believe doing so would actually promote the responsible deliberation that is essential for good government, something that has, unfortunately, been in short supply in Georgia and in the United States.