Disputes between the executive and legislative branches about document production and witness testimony invariably wind up before the judiciary, and judges look at these disputes on a case-by-case basis. If the courts proceed this way, the quality of the Trump Administration’s claims vary. For example, the Justice Department has a pretty good argument to withhold portions of the Mueller report from the Judiciary Committee. The law requires federal prosecutors to protect grand-jury secrets and to safeguard the integrity of pending investigations—and courts might well honor the Administration’s position to keep that redacted information from Congress. On the other hand, the argument made by the Treasury Department to withhold the President’s tax returns from the House Ways and Means Committee seems almost frivolous. The law could not be clearer. It states, “Upon written request from the chairman of the Committee on Ways and Means . . . the Secretary shall furnish such committee with any return or return information specified in such request.” Sometimes laws mean what they say: “shall furnish” means “shall furnish.”
This kind of case-by-case approach has worked reasonably well in the past, even in contentious political environments. The Republican-controlled House of Representatives battled the Obama Administration over the coöperation of the Attorney General, Eric Holder, with an investigation of Operation Fast and Furious, a gun-trafficking program. The Democratic House struggled with the George W. Bush Administration over access to information about the firing of United States Attorneys. But this approach by the courts—adjudicating one Administration claim of defiance at a time—will miss the point in the current era. There has never been a President who directed an open campaign of total defiance against another branch of government. It is simply misleading to consider these claims in isolation from one another, because the President has acknowledged that they are part of a coördinated campaign. The law has no clear mechanism for adjudicating these claims together—but they belong together. Trump is leading a political campaign, and it calls for a political, not just judicial, response.