Donald Trump has built no wall on the southern border, but he’s definitely stonewalling Congress. While Trump’s declaration that he will order his staff to disobey any subpoena, refuse to turn over any documents, and take every challenge to court may be tied in the media to the report from special counsel Robert Mueller, the truth is that Trump has turned over nothing since Democrats took control of the House in January. Not one witness. Not one page.
But the question is: What can Congress do about it? Is it possible to break through Trump’s stonewall, especially when, as Wednesday’s hearing on holding Attorney General William Barr in contempt demonstrated, Republicans are all-in on Trump’s efforts to scrub Article I out of the Constitution? In theory, Congress has considerable authority through legislative power, but that authority is severely limited in a case where Republicans are more than willing to support Trump in his efforts to erode their authority.
While that question has been examined repeatedly over the last few weeks, and Democrats are certainly working to come up with an answer that allows them to chisel away at Trump’s obstruction, The New York Times’ reporting breaks the possibilities for those refusing to cooperate with Congress down to three basic categories: jail them, fine them, or impeach them. And of those three possibilities, it’s the last one that’s gaining steam—enough so that some Democrats who previously urged caution are now saying that impeachment “may be inevitable.”
House Majority Leader Steny Hoyer was one of the first to speak up against impeachment following the release of the special counsel report. As The Hill reported at the time, Hoyer declared that “going forward on impeachment is not worthwhile at this point.” Instead, Hoyer was one of those who urged hunkering down and hoping that the 2020 election would take Trump away. But on Wednesday, Hoyer seemed much more open to the idea, saying, “If the facts lead us to that objective, so be it.” Hoyer called Trump’s efforts to block access to materials and witnesses “perhaps the greatest cover-up of any president in American history.”
Trump’s efforts to block the House and Senate from seeing the unredacted Mueller report and supporting materials, and to block access to his taxes and financial records and prevent witnesses from testifying, are leaving Democrats with only one real option. Donald Trump is building the case for the impeachment of Donald Trump.
It wasn’t Nixon’s crimes in Watergate that started off impeachment proceedings. It was his refusal to turn over information, including the recordings he had made of White House conversations. That the courts eventually ordered Nixon to turn over the tapes, which included discussions with his top advisers held in the Oval Office, shows just how far Trump has extended the idea of privilege in casting a net over all the material connected to the Mueller report.
At the moment, the executive branch seems to be genuinely smug in its expansion of power. It’s ignored subpoenas. Barr can order the U.S. attorney to refuse the contempt citation soon to be on its way from the House. And Stephen Mnuchin can defy not just a congressional subpoena, but even a cut-and-dried law without taking so much as a scratch.
Past efforts to act through subpoenas and contempt citations have simply taken too long to be effective, even when courts have sided with Congress. Which is a big part of why Barr simply stopped the pretense of “negotiating” and issued a letter to Congress that might as well have been labeled “Come get me.”
If any of these actions were happening in a vacuum, Democrats might be content to take any one of them through the long procedures of civil trials and appeals. However, the fact that they’re all happening at once creates an almost irresistible pressure to deal with the obstruction in a definitive way—the only way that may be effective.
In addition to the contempt citation against Barr, House Democrats are considering building a “package” of citations that could be referred to the federal district court not as individual cases, but as a demonstration of a pattern of obstruction. Democrats would essentially be building something akin to a conspiracy charge against Trump—and perhaps racketeering as well, considering the way in which Trump has threatened former officials who are now private citizens.
This is being done with a deliberate focus on the articles of impeachment used against Nixon in Watergate. And Democrats aren’t being coy about this. Democratic Rep. David Cicilline said as much in explaining the strategy to the Times. Democrats may have been divided over the outcome of the Mueller report, but they are being united by Trump’s actions in obstruction. Acting against the obstruction is providing new energy and pushing even moderate Democrats to admit that impeachment may be the only action that remains to remove the barrier Trump has placed before Congress.
According to Democratic Rep. Pramila Jayapal, it’s a question not of waiting until the election, but of looking for three critical “data points” before launching formal impeachment proceedings. One of those is whether or not they can get the full, unredacted special counsel report. The second is whether the White House will allow former White House counsel Don McGahn to testify. And the third is whether Robert Mueller will be allowed to testify.
The answer to the first two points is already known. The clock is now ticking on the third.
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