Regular readers of DOMEocracy are aware of recent assertions that Democrats must avoid the Sirens loosed by Donald Trump to lure the party to distraction and electoral calamity. Speaker Nancy Pelosi and the key chairmen directing the multiple investigations of Trump World have kept a heavy hand on the tiller, steering the party towards the inquiries while also moving forward on a vigorous legislative program, addressing issues that enjoy broad public support: immigration reform, campaign finance reform, expanded health services and economic equity.
In recent weeks, as noted in “The Trump Trap” (May 7), it has seemed obvious that Trump is determined to bait Democrats into pursuing impeachment, which would enable him to rally his base and attempt to persuade key swing voters – like those who restored Democrats to the House majority – that he is the victim of a pernicious, partisan attack.
Trump has ordered several current and former White House officials to defy congressional subpoenas, like Treasury Secretary Mnuchin who refused to turn over tax records sought by the House. In court, U.S. District Court judge Amit Mehta could barely contain his contempt for the implausible arguments offered by Trump’s attorney and ruled the secretary must comply with a lawful subpoena. Former White House counsel Don McGahn was ordered to defy a subpoena to elaborate on the many hours of testimony he willingly provided special counsel Robert Mueller. Attorney General Barr similarly blew off the House’s subpoena.
Trump doubtless thinks he has hit on a winning strategy, offering Democrats a number of unpalatable choices: concede an inability to force the administration to provide witnesses and materials (which seems unlikely), forcing the Congress to engage in a lengthy court challenge that would certainly stretch into the campaign season and conceivably beyond next year’s election, or entrapping Democrats into an extended impeachment inquiry that allows Trump to portray himself as a victim of an partisan witch hunt. Trump may well believe he cannot lose.
But actually, he can lose, and by his actions, he may be making his own position far more vulnerable.
So long as the “Congress versus Trump” battle revolved around the complexities of the Mueller report, the president could cite the special counsel’s findings of “no collusion” and the ambiguous conclusions on the obstruction of justice allegations. For Trump and his defenders, the more complicated the issue, the better a battle with the Democratic Congress would be.
But in defying Congress’ unquestionable oversight powers, which are not tied to whatever the Mueller report found (or did not find), Trump has reduced the basic charge against him to obstruction of Congress. Mueller no longer matters. The issue is now one of interfering with Congress’ assertion of its constitutional role as a co-equal branch of government, the flagrant defiance of the time-honored obligation of presidents and their administrations to respect the First Branch’s powers.
No president has come close to such a sweeping rebuke of Congress’ investigative rights since Richard Nixon, whose view of unrestricted executive power cost him the presidency. (One memorable Nixon quote: “If the president does it, it’s not illegal.”) Indeed, the third article of impeachment voted against Nixon by the Judiciary Committee 45 years ago declared that he had “failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives … and willfully disobeyed such subpoenas.”
Lawyers could (and doubtless will) expend enormous effort and substantial time arguing whether the subpoenas issued by chairmen Jerry Nadler and Richard Neal were “lawful,” but it seems the outcome of such litigation is all but certain, unless the courts are prepared to grievously undercut the separation of powers and the constitutional authority of the Congress.
There would be grand irony if Trump’s hubris in resisting lawful congressional demands, rather than any of his other irrational and likely illegal hijinks, provides the basis for impeachment. What is clear is that by so flaunting the institutional interests of Congress, Trump has simplified the charges against him, weakened his own argument and very possibly made it inevitable that Democratic leaders will feel institutionally compelled to move towards impeachment.