The Senate soon must perform one of its most solemn responsibilities: conducting the trial of an impeached president. When President Trump’s trial begins in the Senate, all 100 senators will consider the two articles of impeachment approved by the House of Representatives. One alleges that the president abused his power by leveraging foreign military aid for his personal benefit, and the other alleges that he obstructed the resulting investigation by preventing Congress and the American people from discovering his actions.
Although a lot of news coverage has focused on the president’s alleged abuse of power by using his public office for personal gain, I believe his wholesale obstruction of a co-equal branch’s constitutional oversight responsibilities merits equal attention, as it threatens a fundamental premise underlying our democracy.
No other president in our history has engaged in such a complete stonewalling of Congress. Throughout the House impeachment inquiry, the president directed Executive Branch officials not to cooperate at all, and not a single subpoenaed document was turned over. Numerous key witnesses defied Congress and followed the president’s instruction.
Despite this obstruction, some of the very documents that President Trump kept hidden from the House have recently been made public through our nation’s premier transparency law. The Freedom of Information Act, or FOIA, empowers the public to request and obtain information from the federal government. Using FOIA, organizations like the Center for Public Integrity have obtained documents revealing that a White House official instructed the Department of Defense to withhold vital aid to Ukraine just minutes after President Trump’s July 25 call with the Ukrainian president, and that Pentagon officials expressed concern that doing so would be illegal. We learned this new information in spite of the administration’s attempts to misuse FOIA by redacting critical information in ways entirely unsupported by the law.
As the son of Vermont printers, I’ve worked for decades to improve government transparency, in particular through FOIA. The American people have a right to know what their government is doing. This transparency is necessary to hold our government to account, to ensure it acts in the public interest and follows the law, and to understand what happened if the government falls short. That is especially true if, as the House has alleged, taxpayer money has been used, in violation of the law, to extract a personal favor for the president.
But even when FOIA works perfectly, it is a supplement to, and never a replacement for, Congress’s oversight authority, which is deeply rooted in the Constitution. Republicans and Democrats alike have agreed: Congress, by virtue of its constitutional mandate and position of public responsibility, should receive more information than the FOIA statute requires, not less.
That the Trump administration provided documents to private FOIA litigants but refused to provide those very same documents to Congress reveals just how baseless the president’s stonewalling of Congress is. Such obstruction is an affront to our Constitution’s carefully calibrated system of checks and balances that have defined our fragile — but, so far, durable — democracy for more than two centuries. Categorically refusing to comply with every single lawful congressional oversight request and subpoena makes a mockery of Congress’s constitutional status as a co-equal branch of government.
Given this threat to our democracy, and in furtherance of our constitutional obligations, the Senate must now do its job.
During the Senate trial, President Trump will have the opportunity to present evidence that he has thus far kept hidden. That includes key documents and critical witnesses with firsthand knowledge of the president’s actions, including John Bolton, the president’s former National Security Adviser. Bolton described the Trump administration’s efforts in Ukraine as “a drug deal” and said this week he would testify before the Senate if asked. If any of the evidence that the president has thus far kept under wraps helps his case, I would think he would seize this opportunity. If he does not, the Senate — consistent with its constitutional duties — can and should compel cooperation from the President and relevant witnesses. We can do so with just 51 votes.
FOIA continues to play a critical role in shining a light on government misconduct. And I will continue to work hard to improve compliance with the letter and spirit of that law. But FOIA is no substitute for the Senate’s constitutional duty to pursue the truth and to impartially weigh the impeachment charges presented to it. At stake is whether the president can be permitted to keep both the Senate and American people in the dark, to stand beyond the reach of accountability for his actions. In our democracy, no one — not even a president — is above the law.
The Senate’s actions in the days and weeks ahead will shape our system of checks and balances for decades to come. FOIA has done its job. Now senators must do theirs.
Patrick Leahy, of Middlesex, is Vermont’s senior U.S. Senator and dean of the Senate. He is the vice chair of the Appropriations Committee, a leading member of the Judiciary Committee, and is considered the Senate’s foremost champion of the Freedom of Information Act.