DOMEocracy

hardline political news and analysis

Month: May, 2019

Simplifying the Case for Impeachment

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. 

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The Trap Trump is Laying

Subtlety has never been one of Donald Trump’s strong suits, and I must confess, I have been loathe to attribute great strategic skills to this most incoherent and incompetent of presidents. Yet increasingly, one must begrudgingly acknowledge Trump’s strategy for countering the enhanced congressional oversight resulting from last November’s election. 

There are significant ideological cleavages within the Democratic party over the wisdom of pursuing impeachment in the House versus conducting vigorous oversight and issuing reports or perhaps a contempt resolution. Yet as many as 70 percent of Democrats, according to some polls, favor inquiries that are tied to a vote to impeach Trump, about double the percentage of all voters favoring such an action.

Trump understands that it is to his advantage to agitate that irritation within the Democratic ranks. Several of the presidential candidates – Bernie Sanders, Elizabeth Warren, Kamala Harris – have already endorsed impeachment, a consequence-free option for senators who do not face re-election concerns, as do a few dozen marginal House members forced to choose between the party’s inflamed base and the moderates and independents whose votes they must have for re-election. It is, of course, this latter cohort of representatives whom Democrats need to hold their seats and, therefore, retain their House majority.

Some of the newly elected Democratic House freshmen have similarly embraced the impeachment route, as have some veterans like Maxine Waters. Without exception, all of them, like the Senate proponents, represent secure Democratic districts where their only electoral uncertainly lies in a primary challenge from the Left. In such districts, a vote for impeachment is without risk. Many would not even care if investigations or hearings were first conducted.

Those clinging tenuously to seats that only months ago were held by Republicans – and very often, conservative Republicans – are more skeptical of impeachment although just as avid about using aggressive oversight to probe the Mueller Report, the Justice Department, and other aspects of the scandal swirling around Trump and his administration.

In the center of the maelstrom are Speaker Nancy Pelosi and the leadership (including the relevant committee chairs Jerry Nadler, Elijah Cummings and Adam Schiff) who are wary of prejudging the outcome of their investigations by prematurely advocating impeachment. The leaders, who know their hopes for preserving the majority lie in retaining those marginal seats, are urging that members be circumspect in advocating removal of the president from office, pointing out that obligatory investigations will consume months that move the nation closer and closer to voters making the ultimate judgment on whether Trump should remain in office.

Assuring the continuation of this intra-party roiling is very much in Donald Trump’s interest.  To the extent that he can foment tension among the presidential hopefuls or within the Democratic Caucus, the better for him to make the case to voters against entrusting the White House (or the House itself) to a divided and self-flagellating party. It is all well and good for pundits and hardliners to pontificate about the need to impeach, damn the consequences to Congress; but if those consequences include a GOP majority that can rescind health care coverage for millions, walk away from climate change obligations, and run the deficit to nose-bleed levels while preaching the false gospel of balanced budgets, Democrats need to measure their responses very carefully.

Trump has hit on a simple strategy for ensuring that the Democratic turmoil grows: absolute opposition to allowing current or former administration officials to testify before congressional committees. He knows such defiance is certain to heighten calls for impeachment, especially since stonewalling Congress was one of the articles of impeachment approved by the Judiciary Committee against Richard Nixon in 1974. 

Trump is taking legal action to prevent former officials like ex-White House attorney Don McGahn from appearing before House panels. His myrmidon Attorney General William Barr has stiff-armed the Democratic House (after appearing before the Senate Judiciary Committee chaired by the sycophantic Lindsay Graham). Apparently, Treasury Secretary Steve Mnuchin, yet another toady willing to sacrifice his reputation for Trump, is refusing to turn over the president’s tax returns as subpoenaed by Congress, which has the legal authority to check for conflicts of interest and personal enrichment. And the president has opined that former Special Counsel Robert Mueller should not testify before the House, as he may be negotiating for May 15. 

Trump doubtless delights in provoking such a constitutional confrontation, knowing that it consumes valuable time, casts Democrats as obsessed inquisitors, and fosters division within the party’s ranks while costing him absolutely nothing. He may also suspect that the courts will be loath to jump into an internecine battle between the Legislative and Executive branches, preferring to let them settle their disputes without judicial interference. Chaos, a divided opposition, and delay all work for Trump and make it more difficult for Democrats to unify and offer a coherent appeal to independent voters who will undoubtedly have enormous influence in next year’s election.

Defer, deflect and delay; it has been Donald Trump’s operational strategy for decades. In the end, he might face a judicial reprimand on executive privilege or a few censure resolutions against his staff, his family or even himself. Reprimands and resolutions don’t end presidencies, and Trump has Graham and McConnell to make sure the heavier  weaponry never comes near the White House. It will take enormous skill and discipline for House Democrats to avoid falling into Trump’s trap, especially if they are goaded on by presidential hopefuls and an animated base who would rather have the fight than the majority.