Concerned that the totalitarian excesses that they had seen in the King of England could be reproduced in the new republic, the founding fathers of the United States created a system of weights and balances to prevent any of the powers of the new State – the executive, the legislative or the judicial one – will abuse its prerogatives. One of them is included in article two of the Constitution, which according to Donald Trump says that the president “can do everything he wants” but that, as elementary students learn at the tender age of eight, it includes a drastic measure to control his power: the power of Congress to investigate and dismiss him through an impeachment process
The issue arose during the discussions of the Philadelphia Convention in 1787. The idea of impeachment, inspired by British law, was immediately put on the table. There were more refined arguments in favor, but none as blunt as Benjamin Franklin's: better impeachment than Europe's traditional way of getting rid of its kings, death.
The Constitution does not provide answers for Trump's refusal to be investigated by CongressRELATED
Since their arrival at the White House, Trump's actions have put to the test the complex system of powers and counterpowers envisaged in the US political system, more presidential than initially intended. This week, however, it has come to what several jurists consider a constitutional book crisis. Not because of Trump's apparent abuses of power in his contacts with Ukraine – for that there is impeachment – but because of his resistance to being controlled by Congress.
To detect constitutional crises, jurists are guided by the definition coined by the Georgetown Law Professor
Victoria Nourse: "A confrontation between branches of government in which neither party reverses and there is no clear solution within the constitutional system." The most recent precedent dates from 1974, when Richard Nixon refused to hand over the recordings of his talks to Congress.
The trigger this time has been the letter from the White House lawyer Pat Cipollone to Congress, in which he announces that the president will not collaborate with the investigation and will not respond to his official summons or provide documents or witnesses. The process is "illegitimate", it is politicized and the president should be able to defend himself and summon witnesses, he claims, although the law does not provide something like that. Trump's attitude puts the Democrats in a complicated situation, with their hands tied to complete their investigation. Courts, the third branch of government, could come into play. Nourse believes he will reach the Supreme. But, even if the judges recognize the power of Congress to investigate him, if Trump continues to refuse to collaborate, there are few other things they can do.
At that point, the answer would not be in the laws but in politics, in the reaction of public opinion and the attitude of the president's allies. Would they continue to support you in these circumstances? Democrats can go ahead with the case, vote on impeachment articles. Trump's maneuvers with Ukraine have changed the general feeling towards the process and, now, they have a majority to condemn it. The final decision is in the hands of the Senate, where there is currently no trace of the 20 Republican votes that would be needed to confirm the dismissal.
"The major crisis is not Trump," says John Delaney, a Democratic candidate for the White House, "but Republicans in Congress, who have so far demonstrated blind loyalty to him and ignored his constitutional responsibilities." Ezra Klein, director of Vox.com, puts name and surname to this crisis: Mitch McConnell, the Republican leader in the Senate.
In the case of Nixon, the crisis worsened when the Supreme ordered him to deliver the tapes. It was only resolved with his resignation. By then, many co-religionists had abandoned him and Nixon knew he would not survive the impeachment. The current polarization of US policy and Trump's absolute control over his party, which he came as an uncomfortable intruder, does not indicate for now that something like this could happen. About this, you cannot ask the founding fathers for accounts.