Barbara McQuade

Opinion contributor

We are seeing Phase 2 of Donald Trump’s legal strategy to defend himself against government investigations. It’s called, “We’re fighting all the subpoenas,” and it amounts to an all-out war with Congress.

In Phase 1, Trump knew special counsel Robert Mueller could never lay a glove on him because of the Department of Justice policy that a sitting president cannot be indicted. The Phase 1 legal strategy seemed to be produce documents and witnesses so Attorney General William Barr could announce that the White House had "fully cooperated" — even though the president himself refused to be interviewed, no criminal charges could be filed, and Senate Majority Leader Mitch McConnell could proclaim “case closed.”

Now that Trump faces investigation from a coequal branch of government that actually could remove him from office through impeachment, the Phase 2 strategy kicks in: Fight everything.

The Mueller investigation turned out to be a fool’s errand from the start. As Barr has stated repeatedly, prosecutors make “binary” decisions: Charge or don’t charge. Except here’s the trick: When investigating a president, given DOJ policy, the only possible decision is don’t charge. In other words, heads I win, tails you lose. Cooperation is easy when you can’t be charged.

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In Phase 2, Trump is making no pretense of cooperating. Instead, he's characterizing congressional investigations as an effort to relitigate the Mueller investigation. The fallacy of his argument is that while Mueller believed he could not charge Trump, he deferred to Congress as the appropriate body to check the president. Facts developed by Mueller may be helpful to Congress, but these investigations are different because they could result in serious consequences for the president.

An escalating accumulation of obstruction

Rather than cooperating, Trump has filed lawsuits to block his accounting firm and banks from complying with subpoenas to produce his financial records to the House Oversight and Reform Committee. On Sunday, Trump tweeted that Mueller should not testify before Congress, even though Barr has said that he has no objection. On Monday, Treasury Secretary Steven Mnuchin refused a request from House Ways and Means Committee to produce Trump’s tax returns, despite a law stating that he “shall furnish” returns upon request.

On Tuesday, the White House prohibited former White House counsel Don McGahn from complying with a subpoena for documents, stating that the president might want to assert executive privilege. On Wednesday, the White House asserted executive privilege over the unredacted Mueller report and its underlying evidence, including statements made to investigators during interviews, for which the privilege has arguably been waived. That same day, the House Judiciary Committee voted to hold Barr in contempt of Congress. On Thursday, House Speaker Nancy Pelosi said the administration is engaged in “a cumulative effect of obstruction” that could lead to other contempt of Congress citations.

Executive privilege is a recognized doctrine that presidents may use to protect confidential communications, national security matters and agency deliberations. DOJ has also historically asserted executive privilege to protect ongoing investigations and individuals’ privacy interests. But the parameters of executive privilege are largely undefined, and the Supreme Court ruled in United States v. Nixon that the privilege is a qualified one that must yield when items are subpoenaed for criminal trial. We entrust our executive branch officials to exercise the privilege judiciously to protect legitimate interests, such as fostering candid advice from aides, and not to use it as a shield to conceal misconduct.

'Accommodation' is not how Trump rolls

In the past, we have counted on norms to help us avoid showdowns between branches of government, sometimes described as a “constitutional crisis.” One of these norms is the process of accommodation, in which branches of government negotiate a resolution that allows the parties to move on without court intervention. President Ronald Reagan’s first attorney general, William French Smith, described accommodation in a 1981 opinion as essential to responsible exercise of government power: “The accommodation required is not simply an exchange of concessions or a test of political strength. It is an obligation of each branch to make a principled effort to acknowledge, and if possible to meet, the legitimate needs of the other branch.”

Even so, we all know by now that “accommodation” is not how Trump rolls. He is a disrupter. He is not afraid to break the norms; in fact, he thrives on it. Norm-busting is part of his appeal to his base. He does not shrink from a good fight. He has made a career of using the legal process to bully others to get his way.

And even if Trump ultimately loses his legal battles in Phase 2, success is not necessarily defined as prevailing in court, but in delaying any resolution until after the 2020 election. Some even suggest Trump is daring congressional Democrats to impeach him, knowing that the Republican-led Senate will never convict him, and luring his opponents into a political trap that will help him win reelection.

Congress must protect Constitution, not Trump

This is no way to run a government. While Trump’s strategy to stonewall might help him “win,” it could do long-term damage to our country. Our constitutional system is built on checks and balances to prevent abuse of power. But the system relies on people of good faith to exercise those checks and balances.

For example, the president must not just execute the law but also take care that the laws be executed “faithfully.” And members of Congress owe their allegiance not just to their party but also to their country, as Republican lawmakers demonstrated during the Watergate scandal. Their oath of office swears them to support and defend the Constitution, not the president or their party.

As Trump tests the norms of government, we need members of the executive and legislative branches to overcome tribal instincts and do what’s best for our nation. For members of the executive branch, that means using executive privilege on an item-by-item basis and not for blanket protection from all inquiry. And for Congress, it means using all the legal tools at its disposal — subpoenas, lawsuits and even impeachment proceedings — to conduct vigorous oversight of a president willing to break all norms.

Barbara McQuade, a former U.S. attorney for the Eastern District of Michigan, is a professor at the University of Michigan Law School. Follow her on Twitter: @BarbMcQuade