History Will Judge Those in Congress Unwilling to Judge Trump

The House has to hold the president accountable even if the Senate won’t.

May 14, 2019

We continue our intensifying national discussion about impeachment this week learning that President Trump and his allies in the executive branch are actively working to block 20 separate congressional investigations into presidential misconduct, administration corruption, and the Trump family’s finances. House Democrats tell the Washington Post that the White House has refused or failed to comply with at least 79 requests for documents or testimony. This is not the garden-variety give-and-take negotiations between the legislative and executive branch we have seen for generations. This is presidential obstruction as a declared matter of policy.

It’s not going to get better so long as Trump feels he pays no political price for his tactics, and by that measure alone, House Democrats might be justified in going beyond subpoenas to a Judiciary Committee impeachment inquiry. Just this past weekend, for example, the president decided it would make sense for him to attack the integrity of Don McGahn, the former White House counsel, who has emerged as a key witness in the Mueller report. Is Pat Cipollone, the current White House counsel, going to do anything about it? Don’t bet on it. He’s a Trump man through-and-through

Legal analyst Jeffrey Toobin is right when he says that the Trump administration’s level of corruption and obstruction is something profoundly different and darker from anything the Constitution is designed to protect against. The framers contemplated a corrupt president, beholden to foreign interests, entangled in financial dealings which conflicted with his oath of office. What they did not count on was such a chief executive ruling at a same time with a supine Senate that would defend or enable impeachable conduct. And do so in moment after moment of articulated bad faith.

This level of presidential contempt — in every sense of the word — poses a problem for Rep. Jerrold Nadler, the chairman of the House Judiciary Committee. He is getting grief from some Democrats for not getting tougher with Trump. They want to see the committee use its “inherent contempt” powers to fine or jail administration officials who refuse to comply with duly authorized subpoenas. And that was before we learned the president thinks it is okay to talk with his attorney general about criminal investigations into his political adversaries.

House Democrats will, eventually, initiate impeachment proceedings or be stymied somehow by the ultra-conservative Supreme Court in an effort to do so. I think that’s the most likely scenario now that the congressional subpoenas have started flying toward Trump aides and third-parties and the ersatz claims of executive privilege have been “asserted.” The quicker these weighty legal and constitutional issues get into federal court the better. With the 2020 election on the horizon, we might as well know sooner rather than later if our federal judges are willing to stand up to this authoritarian presidency.

But it’s on the Republican side of Congress where the most fascinating action is likely to come. Last week, we learned that diehard fealty to conservative principles, expressed in countless votes for Republican priorities, doesn’t insulate a senator like Richard Burr of North Carolina from Trump supporters’ wrath. On behalf of the Senate Intelligence Committee, and to his credit, he signed off on a subpoena to Donald Trump Jr. to finally get the president’s son to answer questions about his dubious testimony about the Trump team’s Russia ties. Are Burr’s colleagues in the Senate going to stand up to him when it counts? Ask Rand Paul.

There is not a single Republican member of the Senate who was in Congress during the Clinton impeachment would can defend Trump today and not expose himself as an utter hypocrite. I am old enough to remember then-Rep. Lindsey Graham’s relentless sanctimony during the Clinton proceeding. Now the Trump loyalist says, with a straight face, that America can’t fairly compare this president with Clinton because Trump has “done nothing wrong” to deserve impeachment. A version of the same virus infects Senate Majority Leader Mitch McConnell, who blames President Obama for Trump’s links to Russia in the 2016 election.

House Democrats should initiate impeachment proceedings against Trump not just because those proceedings will strengthen the legal case Congress has to get access to documents and testimony the White House is trying to hide. They should do so because there is virtually no other meaningful way to hold the president accountable. It is vital that we all see as much of that evidence as is possible. And, if the evidence supports it, the House should impeach this president and force all those Senate Republicans to go on the record, for posterity, about why they think this president has not committed “high crimes and misdemeanors.” Let these men and women be forced to account to history.

The writers of Saturday Night Live get it. An instant-classic skit this past weekend asked, only half-comedically, what it would take for Senate Republicans to stop defending Trump and start defending Congress’s authority — responsibility actually — to provide oversight over the executive branch. “We’ll always be ride or die,” says the faux McConnell to uproarious studio laughter. The gag would be a whole lot funnier if partisan voter suppression ploys weren’t already in place to tip the scales in favor of Republican control of the Senate, if not the White House.

The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.

(Image: Getty)