Everyone in Washington is planning for the subpoenas. But if Democrats retake the House or Senate, they can bring sweeping lawsuits against the president, and I’m urging them to do it.
If the opposition wins in November, the conventional wisdom holds that they’ll gavel in on January 3, stand up oversight committees, and start investigating the most corrupt administration in American history. Fine. They should. But I’ve run oversight probes from Capitol Hill, and too often all they produce is hearings and reports. Don’t get me wrong, that matters. Sworn testimony and paper trails will help build the public record, expose criminality, and provide the foundation for a future Justice Department to hold people accountable. But a Congressional report has never forced a president to give back an airplane… or tear down an unapproved ballroom.
There’s a more potent weapon sitting in the House’s arsenal, and it takes nothing more than a simple majority to use it.
The U.S. House of Representatives (or the U.S. Senate) can vote to authorize litigation in its own name on behalf of an entire chamber of Congress. Then it can send its lawyers into federal court to sue the president of the United States and his administration directly. No special counsel is needed. There’s no waiting on Todd Blanche’s Justice Department to develop a conscience. All that’s required is a majority vote and a filing. Democrats must be prepared to do this, and they should have their filings ready for the afternoon of January 3.
Why do this? The honest reason is that Donald Trump is committing crimes that ordinary Americans can’t sue him over. Just look at the billion-dollar ballroom, which the Supreme Court’s chief justice declared is “likely unlawful,” yet the high court turned its back on a lawsuit against the structure because they believed private citizens had no standing to sue over the monstrosity. But you know who does? The Congress that never authorized the structure… never provided the money for it… and certainly never gave the “okay” to raid hundreds of millions of dollars from other programs to make it happen.
Of course Trump’s MAGA allies in Congress haven’t bothered to sue him over it; they’re okay with him breaking the law. But Democrats may soon have a powerful force with which to turn the tide. And the courts will be forced to listen if a co-equal branch of government is saying that its rights under the Constitution were violated.
I know the objection, because I’ve heard it from smart lawyers for a decade (including at a dinner last night in New York City). Congressional lawsuits often get thrown out because the courts get nervous about refereeing fights between the branches. That’s true, but it’s also the reason to be strategic rather than timid. The House shouldn’t sue over everything. It should sue where its institutional injury is the sharpest, and the second Trump administration has helpfully supplied a perfect trilogy, if you will: money has flowed into the presidency without Congress’s consent… money has flowed out of the Treasury without Congress’s appropriation… and money Congress appropriated has been illegally shut off in the pipeline.
The easiest places to start are Trump’s Qatari-gifted jumbo jet, his White House ballroom, and his unilateral destruction of an agency Congress created, the U.S. Agency for International Development (USAID).
I’ll start with the jet. The U.S. Constitution is pretty straightforward on this, namely the Foreign Emoluments Clause, which says that no federal officeholder may accept “any present, Emolument, Office, or Title, of any kind whatever” from a foreign state “without the Consent of the Congress.” The Framers didn’t ban foreign gifts outright, but they created a procedure, and the procedure runs through Congress. But when Qatar handed Trump a $400 million luxury aircraft, nobody asked anyone on Capitol Hill what they thought about it — about a foreign government trying to win over the president with the priciest gift ever offered to an occupant of the Oval Office.
Instead, the administration’s own lawyers gave a thumbs-up to the arrangement by saying it was a gift to the “Air Force”… and then said that the Air Force asset could be re-gifted to the Trump presidential library after he leaves office. Ha! That’s like me having my own personal accountant give me permission to carry out embezzlement. That doesn’t make it less illegal. To say nothing of the fact that hundreds of millions in taxpayer dollars may have been used (without Congress’s approval) to upgrade the new Air Force One to Trump’s liking.
Then there’s the ballroom, which I want to go back to for a minute. Remember how Donald Trump promised that private donors would pick up the tab for his gilded replacement for the East Wing? That was already a corruption story (given the pattern of contributors receiving contracts and dinners in return). Then records revealed that taxpayers will fund roughly half of it anyway. That’s when it became an outright constitutional violation because the Appropriations Clause says no money leaves the Treasury except through an appropriation made by law. And guess what? Congress never appropriated a dime for demolishing the East Wing and building up a marble dancing hall in its place.
Worse still, the cash is being pulled from Secret Service and White House Military Office accounts, including funds meant to train agents to defend senior government officials against assassination attempts. I spent years on the House Appropriations Committee helping oversee the Secret Service’s budget, and I can tell you nobody in that room ever appropriated a single dollar for a chandelier or a dance floor. This is the strongest legal terrain the House has, because it’s already won on cases like this. I know, because I was there.
In 2014, when I was a Republican aide in the House, Speaker John Boehner won a floor vote to sue the Obama administration for making healthcare payments without an appropriation, and by 2016 a federal court ruled the House had standing and that the payments were unconstitutional. To be clear, I didn’t exactly love that lawsuit at the time, but I love the precedent that it set. And the donor-funded half of the ballroom isn’t innocent either, because federal law also exists to stop presidents from financing government operations with private money. Indeed, a president who can fund his priorities with donor cash doesn’t need Congress, and a president who thinks he doesn’t need Congress can’t be checked by one.
Finally, there’s a strong lawsuit to be brought around USAID, which is the deepest wound of the three. Congress enshrined that agency in statute in 1998, funded it every year since, and wrote explicit restrictions on reorganizing it into the appropriations bills. Trump bulldozed the place anyway and used a so-called “pocket rescission” to incinerate billions in foreign aid Congress had already approved (a maneuver a federal judge has already ruled fails under the Impoundment Control Act).
The Supreme Court settled the underlying principles decades ago. Presidents cannot refuse to spend appropriated funds, even if they think it will save taxpayers money, and they cannot cancel enacted spending on their own, which is why the line-item veto was struck down during the Clinton years. Unfortunately, the unions and aid groups who sued over USAID’s destruction were dismissed because a court found their injuries didn’t fit the constitutional claim — that they didn’t have standing to sue. Of course they didn’t. The constitutional claim is that Congress’s lawmaking and spending powers were literally stolen by the president, and only Congress can walk into court and say: “That theft happened to me.”
If Congress sues Donald Trump, it’s no quick fix. These cases will undoubtedly grind through counter-filings and appeals, and Trump’s lawyers will fight at every step. But the legal ground has quietly shifted over fifteen years and an array of interesting cases that strengthen the argument that the House — especially on matters related to federal spending and the power of the purse — can challenge the usurpation of those powers in court.
The question now is whether an incoming Democratic majority will treat Congress only as a stage for fiery hearings… or also as a platform where they have the standing to sue the wrinkled pants off the president. Trump has spent two years betting no one can make him give anything back. But I say: let’s find out in court.
Your friend, in defiance,
DEFIANCE DAILY
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