The problem is instead Democrats who are turning the awesome powers of the House into partisan political weapons. The impeachment power is large and serious. Yet these days, Democrats toss the word around with as much regularity as they do the word “hearing,” or “motion” or “bill.” Holding an executive cabinet member in contempt of Congress is a serious move, yet Democrats slapped Barr with contempt in record time and for no reason other than to score political points. House Democrats have cast aside the usual rules on oversight—ignoring the traditional need to show true “legislative purpose” and instead demanding documents from Trump from before he was even in office. And current Democratic presidential candidates are promising to abolish the Electoral College, pack the Supreme Court, give sixteen-year-olds the vote, and confiscate existing firearms. Constitutional norms, anyone?
The thoughtless use of these powers has watered down their meaning, with alarming future consequences. Impeachment remains one of the only ways to remove a truly corrupt president. The more Democrats politicize it, the more wary future Congresses will be to embrace it when it is truly necessary. And Democrats’ wanton threat of subpoenas and contempt citations has already made the Trump White House wary of complying with congressional demands. This destroys what in the past had been a tense but somewhat workable compromise—in which a Congress managed to see documents it truly needed for oversight, and a White House was able to protect those that went to the core of executive deliberation.
As of the writing of this book, House Democrats had yet to decide whether to initiate a formal impeachment inquiry into Trump. Should they unilaterally do so, half the country will see it as proof that the party is determined to reverse via brute force the results of the 2016 election. Again, nothing Trump has done compares.
* * *
Even in the minority, the Democratic Resistance didn’t exactly cover itself in glory. Senate Democrats made a circus of the Kavanaugh hearing and abused their advice and consent duty with regard to Trump nominees. House Democrats used their perch to make libelous and unfounded accusations of treason and other criminal conduct. Committee Democrats in both chambers engaged in rampant leaking, stoking the press flames. Democrats sat idly by as Republicans attempted to wrest answers out of the DOJ about the FBI’s 2016 behavior. Only when Democrats were back running the House did they suddenly decide that the bucking of congressional demands amounted to a “constitutional crisis.”
In hindsight, House Democratic rule was destined to be wildly over-the-top. Democrats for two years had sloshed through the Resistance fever swamps, accusing Trump of every crime and transgression imaginable. Those Resistance voters were always going to demand that a new House majority act. The pressure from day one on Pelosi & Co. to take it to the White House was enormous.
The disappointment of the 2016 election had also energized the progressive movement. They blamed Clinton and the Democratic establishment for undercutting Bernie Sanders and then for blowing the election. They poured their frustration into the 2018 Democratic primaries, especially in more traditionally liberal districts. The Resistance fielded far-left candidates and propelled the likes of Alexandria Ocasio-Cortez (New York), Rashida Tlaib (Michigan), and Ilhan Omar (Minnesota) to victory. While centrists running in crucial districts won Pelosi the gavel, the Democratic House overall looked far more liberal after the election. New members from safe seats poured into the progressive caucus. Nate Silver’s 538 blog pointed out in a November 2018 post that in 2010, there were about 1.5 progressives for every Blue Dog moderate in the House. “In 2019, the progressives will have a 4-1 advantage.” These Resistance Democrats took office baying for blood and have consistently demanded the Democratic leadership bend to their demands.
Adding to this perfect storm: 2019 formally kicked off the Democratic presidential primary. Primaries are always about ideological purity; candidates cater to their party’s base. But the base this time was a mob of progressive activists and Resistance types, and the 2020 candidates have duly responded with ever more radical promises. Total renewable energy in a few years? Check. Forced licensing for all gun owners? Check. Government health care for all? Hell, yeah. This 2020 race has also put pressure on the House to rival the anti-Trump enthusiasm of its top presidential contenders.
Finally, do not underestimate the power of ego. Republicans won the House in 1994, and save for the brief interlude of 2006–2010, they had run it ever since. Congressmen like Nadler were aching to hold the gavel and throw their weight around. The question was never what Democrats were going to do. The question was always: What wouldn’t they do?
Democrats were careful not to flag their true intentions on the campaign trail. They knew it would turn off voters. Asked repeatedly during the 2018 election season if Democrats intended to immediately impeach Trump, Pelosi and other leaders repeatedly demurred. On the day of the 2018 election, Pelosi outright rejected impeachment. “I get criticized in my own party for not being in support of it,” she told PBS’s Judy Woodruff. “But I’m not. If that happens, it would have to be bipartisan, and the evidence would have to be so conclusive.” Pelosi said that her interest was in everyday concerns. “They want to see us working to get that done for them. They want resolve. They want peace, and that’s what we’ll bring them.”
Voters certainly got a lot from Democrats—just nothing peaceful. Before Pelosi had made it through her first full day as Speaker, California Democrat Brad Sherman, joined by Texas’s Al Green, had formally introduced articles of impeachment against Trump for high crimes and misdemeanors. And Democrats were off to the impeachment races.
Impeachment, of course, has been used inappropriately in America’s past. The House of Representatives impeached Andrew Johnson in 1868 over the president’s defiance of a questionable piece of legislation (which was later repealed). The Senate failed to convict, the public viewed the proceedings as partisan, and what followed was a long period of bipartisan agreement to avoid the “I” word. In the modern era, impeachment proceedings were brought against both Richard Nixon and Bill Clinton—though in very different manners and with very different results. Republicans and Democrats jointly initiated impeachment proceedings against Nixon, giving the exercise greater solemnity. By contrast, many in the country viewed the GOP’s unilateral impeachment of Clinton in 1998 as a partisan exercise, and they took it out on Republicans at the polls.
Both parties internalized that lesson, and it’s why even prominent Democrats have continued to warn party leaders against moving on Trump. In 2018, longtime Obama adviser David Axelrod warned: “If we ‘normalize’ impeachment as a political tool it will be another hammer blow to our democracy.”
Democratic leaders didn’t heed his caution. The party spent much of early 2019 avoiding the topic by counseling everyone to sit tight, to wait for Mueller’s findings. The party remained desperately hopeful the special counsel would hand it a clear and obvious argument for impeachment—one that even Republicans would struggle to deny. He didn’t. Congressional Democrats, in demanding the special counsel, outsourced the legal questions of “conspiracy” and “obstruction” to the Justice Department. Once Mueller and Barr refused to bring charges, that should have been the end of it. Instead, Congressional Democrats wanted a do-over.
Or at least some did. In the wake of the Mueller report, Pelosi realized she had a problem. Half of her troops were still demanding impeachment; the other half feared it. Pelosi, at least initially, chose a middle option, which required an even worse abuse of House powers.
As of the writing of this book, House Democrats had yet to vote in favor of a formal impeachment inquiry—the first step of any true impeachment proceeding. Pelosi seemed aware that many Americans would view this as the real deal, and that Democrats would pay a political price. A WSJ-NBC poll in mid-May, following the Mueller report release, showed a scant 19% of independents felt there was enough evidence to launch an impeachment proceeding. The Pelosi Democrats in the spring of 2019 instead commenced what we
at the WSJ editorial board labeled a “pseudo-impeachment.” While they talk about impeachment incessantly and directly claim the president is guilty of impeachable offenses, they refuse to actually move to impeach. This has, as Axelrod worried, already served to “normalize” impeachment talk, diminish its worth, and undercut democracy.
Even back in March, before Mueller had formally issued his report, Nadler, chair of the Judiciary Committee, went on ABC’s This Week to claim: “It’s very clear that the President obstructed justice. It’s very clear. Eleven hundred times he referred to the Mueller investigation as a witch hunt. He tried to—he fired—he tried to protect [Michael] Flynn from being investigated by the FBI. He fired [Jim] Comey in order to stop the Russian thing, as he told NBC news.” In response, This Week host George Stephanopoulos asked Nadler the no-duh question: If Trump had obstructed justice, a crime, why wasn’t the House already impeaching? If he clearly obstructed justice, “then is the decision not to pursue impeachment right now simply political?” asked Stephanopoulos.
Nadler gave a non-answer about how he still needed to “do the investigations” and “have the evidence all sorted out and everything,” before proceeding to essentially agree with Stephanopoulos’s point. “Before you impeach somebody, you have to persuade the American public that it ought to happen,” said Nadler. “You have to persuade enough of the opposition party voters, Trump voters, that you’re not just trying to…that you’re not just trying to steal the last—to reverse the results of the last election.” So yes, this was political. Nadler was claiming Trump had committed a crime. He was also admitting that he intended to do nothing about it until he could be sure voters wouldn’t punish Democrats for acting. If Nadler believes what he says about obstruction, that’s a clear dereliction of constitutional duty.
More likely, Nadler doesn’t believe it—and was simply threatening impeachment for political gain (an equal dereliction of constitutional duty). Constitutional lawyers from former Attorney General Michael Mukasey to constitutional lawyer David Rivkin to current AG Bill Barr have explained to Democrats a basic concept: Presidents cannot obstruct justice when they are exercising legitimate constitutional powers. Those powers include the right to fire inferior officers—including megalomaniacal FBI directors. They include the right to berate special counsels (who also work for the president). They include the right to advise on cases, as Trump did with Flynn. Presidents aren’t allowed to commit a per se illegal offense, such as destroying or impairing evidence (acts that also wouldn’t count as the exercise of an inherent constitutional power). But Nadler at the time of his “obstruction” rant had no such evidence.
Nor did Pelosi or any other Democrat, but that has not stopped their incessant impeachment drumbeat. A sampling of Pelosi’s statements from just a few short weeks in March: “Trump is goading us to impeach him” (May 7). “He’s becoming self-impeachable” (May 8). Trump “every day gives grounds for impeachment” (May 16). Yet Pelosi has also said that Trump is “not worth it,” and that impeachment would be a “gift” to him. Which is it? These are not the words of a serious elected leader, gravely wielding impeachment authority. The Resistance’s slapdash and political approach to impeachment has cheapened and awesome and serious tool.
The pseudo-impeachment has also led Democrats to overstep their congressional authority. The Constitution does not grant Congress an express right to conduct oversight. Congress’s right to review, monitor, and supervise federal programs and policies is instead an implied right—and a clear one, given Congress’s power to make laws and appropriate funds. But while Congress had broad authority to investigate matters, the Supreme Court has ruled that it must confine itself to “legislative purposes.” This is why, for instance, Nunes did not conduct a wide-sweeping investigation of the Russia-collusion matter. His Intelligence Committee had jurisdiction over surveillance laws, and so focused on investigating FISA abuse.
Democrats began abusing their oversight powers almost immediately upon taking House power. A near-hilarious case in point has been House Ways & Means Committee Chairman Richard Neal’s demand to see six years’ worth of Trump’s tax returns, from 2013 to 2018. I’m among those who wish Trump would make his records public. While it is not a requirement for the presidency, transparency in this area is generally a good thing. And while Trump undoubtedly worries Democrats will make hay over his finances, he’s handed them an equally large weapon in their claim he is hiding something.
Either way, there is no law saying Trump must make his records public. And everyone understands Democrats want these in hopes of undercutting Trump’s claims of wealth or to drum up some “financial fraud” charge. But Neal knew he needed a “legislative purpose” when he moved to obtain them. So he claimed, ludicrously, that his committee was “conducting oversight related to our Federal tax laws, including, but not limited to, the extent to which the IRS audits and enforces the Federal tax laws against a President.” As for citizens’ normal right to privacy in tax data, Neal cited a provision in the 1924 Revenue Act that gives the Chair of Ways & Means the right to review individual returns.
Trump Treasury Secretary Mnuchin refused, calling BS on Neal’s contrived “legislative purpose.” As critics pointed out, if Neal was truly interested in how the IRS conducts audits of presidents, he’d have taken an obvious first step: He’d ask the IRS how it conducts audits against presidents. He didn’t. He simply demanded the Trump data. He also didn’t ask for audit information regarding any other president—Obama, Bush, Clinton, etc. Most telling, Neal demanded information from the time period before Trump was in office. How does that have anything to do with auditing a president? It says something that Neal’s demand was so flamingly transparent that Mnuchin felt free to preemptively declare he’d ignore the subpoena and see Neal in court.
Expect to witness many more lawsuits over “legislative purpose.” Congresses and White Houses have long tussled over just which executive documents a legislature has the right to view. These fights usually end up in some form of a deal that balances executive privilege with congressional oversight. But Democrats have strayed so far from legislative purpose that the Trump administration by spring of 2019 was throwing up stop signs everywhere. By May, according to the Washington Post, Democrats were complaining that the administration had “failed to respond or comply with at least 79 requests for documents or other information.” On the upside and in the long term, this could provide some further legal clarity on document production. But in the short term, the House Democrats’ overreach is stymieing legitimate oversight. In their rush to tar Trump with “crimes,” they are denying themselves the opportunity to provide effective, targeted oversight of key policies and programs.
Nowhere have Democrats abused the subpoena power more than in their pursuit of their nonexistent impeachment proceedings. For starters, impeachment is only supposed to be a remedy for violations committed while in office. As Rivkin wrote for the WSJ in February 2019: “As Gouverneur Morris told the constitutional convention, impeachment would punish the president ‘not as a man, but as an officer, and punished only by degradation from his office.’ Alexander Hamilton likewise observed in Federalist No. 65 that impeachment involves ‘those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.’” Rivkin noted that the House in 1872 specifically chose not to impeach Vice President Schuyler Colfax for a pre-office action, because impeachment “should only be applied to high crimes and misdemeanors committed while in office.”
Yet Democrats have launched sweeping probes into all aspects of Trump’s long life. The House Intelligence Committee under Schiff has sent out subpoenas looking at more than twenty years of Trump’s business. Nadler has separately sent out dozens of subpoenas, many for information that bear no relation to Trump’s time in office.
Democrats arguably have no legal claim to many of the documents they are demanding as part their follow-up Russia-collusion and obstructio
n probes. Many are highly sensitive documents covered by executive privilege; they include Trump’s dealings with foreign officials, for instance. Others contain personal information. Democrats might have more of a claim if they were to file official articles of impeachment. That would essentially make the House party to a legal issue, as impeachment proceedings are viewed as a sort of court procedure. Judges tend to be more willing to grant Congress access to documents related to impeachment proceedings. But as Democrats—at least as of spring 2019—lacked the courage of their impeachment convictions, they also lacked a fundamental rationale for the items they demanded.
Case in point were their sweeping demands that Attorney General Bill Barr turn over that completely unredacted Mueller report and all of the special counsel’s underlying investigatory material. It was an extraordinary demand, especially given that Barr was obliged to turn over precisely none of it. The DOJ’s special counsel regulations require the special counsel to file a “confidential” report explaining his “prosecution or declination decisions” to the attorney general. The AG has an obligation to notify the Congress only when he appoints a special counsel, when he removes a special counsel, and when a special counsel concludes his work. Barr was under no obligation to provide Mueller’s report to Congress. In his confirmation hearings he nonetheless promised to be as transparent as possible under the law and regulations.
And within days of receiving the report, he had vowed to send Congress a version that contained only certain categories of redactions: grand jury information, sources and methods, information related to ongoing investigations, and details that might hurt the reputational interest of peripheral figures. The report Barr ultimately sent was only 10 percent redacted. And he immediately offered to make available to senior members of Congress an even less redacted version—only 1.5 percent was redacted material.
Resistance (At All Costs) Page 21
