I have previously testified and written about the questionable litigation strategy of the House Democratic leadership in fighting privilege assertions, including recommending cases that it should litigate as a matter of separation of powers. This week another conflict has arisen as the White House again invoked absolute privilege over a staffer. The White House said it will not allow presidential counselor Kellyanne Conway to appear before a House committee looking into her repeatedly violation of the Hatch Act, a federal law that limits political activity by government workers. The position of the White House in entirely untenable and would fail in the courts. This is the type of case that the House should litigate with vigor.
In a letter from White House lawyer Pat Cipollone, Democratic Chairman Elijah Cummings of Maryland was told that Kelly was ordered not to appear or to testify. It is a manifestly improper position to take. Conway (who for full disclosure was one of my former students) is accused of repeated and defiant violations of federal law. That is the very touchstone of congressional oversight and a core function under the separation of powers. Under this approach, staffers could commit any number of federal violations or crimes and simply defy congressional committees in their investigation of the matters.
Notably, the Special Counsel, Henry Kerner, is a longtime congressional GOP staff member and has denied Conway’s assertions that this is merely an effort to silence her. As I have previously written, this is a direct and existential challenge to the Office of Special Counsel. They had to act in the face of such flagrant and repeated violations.
As I have discussed before, it is not clear to me that the Democrats actually want to go to impeachment or complete most of these investigations. There seems a type of planned obsolescence where the leadership will run out the clock while assuring its base that they are really investigating Trump for a purpose other than embarrassment and harassment. Speaker Nancy Pelosi seems to want to use investigation to gather material for the 2020 election but stop short of any substantive effort at impeachment.
This however is the type of defiance that cannot go unanswered by the House if it is to maintain its constitutional position as an equal branch of government.