The Trump administration continues to defy Congress and to demonstrate its contempt for constitutional democracy, refusing to share an unredacted copy of the Mueller Report with House committees, citing “executive privilege,” and refusing to comply with a number of lawful subpoenas for information, about counterintelligence, obstruction of justice, and tax returns. At the same time that it refuses all requests for information or testimony, Trump, along with his henchman Guliani, continues to rail against Mueller and his team, calling them “crooks” and “haters” and implying that they are corrupt; and also continues to escalate the demand for investigations of the investigators and of Democratic political opponents.
Trump continues to act like he is above the law and accountable to no one but his credulous and angry base. And as he does so, virtually every Republican leader has fallen in line, as they have for the past two years (one notable exception is Richard Burr, the Republican chair of the Senate Intelligence Committee, who had the temerity to join with committee Democrats to issue a subpoena requiring Don, Jr. to testify before the committee, thereby earning the hostility of his fellow Republicans, Trumpists all).
And so Nancy Pelosi, institutionalist and tactician par excellence, has finally been moved to declare that we are now in the midst of a “constitutional crisis.” Indeed, Pelosi, who only weeks ago seemed to maintain that impeachment was “off the table,” is now sounding like she is leaning toward impeachment, as is Adam Schiff and other leading House Democrats. And yet the jury, so to speak, is still out. And while House Democratic leaders have escalated the rhetorical conflict with Trump, they remain reluctant to take a more emphatic public stance, and directly confront Trump himself for his affronts to the Constitution.
As readers of my recent columns will be unsurprised to learn, I thoroughly share the frustration, and indignation, articulated by Michelle Goldberg in the New York Times: “If This is a Constitutional Crisis, Act Like It.” And I agree with what Julian Zelizer recently stated in the Washington Post: “Democrats are complicit if they don’t impeach Trump.” The most generous interpretation of the caution of Pelosi and company has been outlined by NBC’s Jonathan Allen, who argues that “Pelosi’s Trump impeachment approach is coming together,” and that this approach centers on Pelosi’s desire to first build and sustain a consensus for action within the House Democratic caucus. But even Allen notes that as a result of Trump’s continued affronts to Congress, “the pace is speeding up even for most Democrats who have been reluctant to go down a path that could lead to impeachment.”
The recent comments of constitutional scholar Laurence Tribe are particularly apt. Tribe, in his 2018 To End a Presidency: The Power of Impeachment, co-authored with Joshua Matz, argues that impeachment must be understood as a political rather than a narrowly legal process for remedying extreme malfeasance in office and protecting constitutional democracy itself. As Alexander Hamilton famously described in Federalist 65: “The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” For this very reason, Tribe and Matz urged caution about the impeachment of Trump in their book, and earned the praise of Never Trump Republicans like Jennifer Rubin and David Frum back in 2018 for doing so.
But that was then, and this is now. And now, in the wake of the Mueller Report and the administration’s refusal to respect Congressional oversight, Tribe has come out strongly in favor of impeachment, arguing last week on MSNBC’s “Hardball” that:
“If this is not impeachable behavior. If this is not abuse of power amounting to high crimes and misdemeanors, then for all time, we will have established the precedent that the president can get away with anything. It seems to me that the power of the House is sacrosanct. They can’t simply duck and say ‘Well, we’ll defer to the U.S. Senate.’ The Senate has the sole power to try an impeachment, but the House has the sole power to impeach. A lot of my friends say ‘You can’t do that. It might be the right thing to do. But we might lose the Presidency next time.’ But we might lose our souls, our constitutional democracy, if we do nothing. And doing nothing is not an option.”
I agree with Tribe. Doing nothing is not an option. And it would appear that all other options have been exhausted.
There can be no doubt that Trump has done many things that clearly demonstrate his unfitness for office, his betrayal of public trust, and his endangerment of the constitutional system itself. It is long past the time for Democratic leaders to lead. And this means effectively bringing this confrontation over the very value of constitutional democracy to a very public head, and making it clear to every American that at this moment in history only one party stands on the side of democracy, while the other has made its peace with autocracy. As I have argued before (here, here, and here), the purpose of such a move is not to remove Trump via impeachment — an impossibility given Republican control of the Senate — but to weaken Trump via impeachment, and to lay the basis for Democratic electoral victory in 2020.
On March 27, Rep. Rashida Tlaib, after having bravely promised to “impeach the motherfucker” — a wholly legitimate statement in my opinion — advanced a House Resolution to begin an impeachment inquiry, a resolution subsequently co-sponsored by Reps. Al Green, Alexandria Ocasio-Cortez, and Ilhan Omar. It is time for this Resolution to move forward.
The Resolution does not call for the immediate removal of the President. It calls for an impeachment investigation. As Tlaib explained in an accompanying statement:
the most dangerous threat to our democracy is President Trump’s actions since taking the oath of office. The fact that President Trump has yet to comply with various clauses of our U.S. Constitution sets a dangerous precedent. Much of the allegations have yet to be fully investigated by this body who also took an oath to uphold the U.S. Constitution. It is critical that we protect the American people and our country from any conflicts of interests that directly erodes our democracy. The Resolution directs the House Committee on Judiciary to inquire whether President Trump committed impeachable offenses. Congress can provide an open and transparent process with the sole goal of ensuring we know the truth and make sure it does not continue, nor happen again. I, firmly, believe that the House Committee on Judiciary should seek out whether President Trump has committed “High crimes and Misdemeanors” as designated by the U.S. Constitution and if the facts support those findings, that Congress begin impeachment proceedings.
While Pelosi now wavers, she seems still committed to pursuing “normal” investigations by a range of House Committees, who can issue subpoenas in the face of administration non-compliance, seek to enforce the subpoenas through the courts.
There are three problems with this approach: it is too time-consuming in its reliance on courts; it gives an appearance of timidity in the face of Trump’s repeated obstructions, provocations, and attacks; and, most important, it is simply too normal, at a time in which the American political system has become far removed from normality and business as usual.
The commencement of an impeachment investigation would a radical step. But its radicalism should not be exaggerated. For an impeachment inquiry would be a constitutionally prescribed process, undertaken by a duly authorized Congressional committee consisting of elected public officials, and orchestrated by a Democratic majority that was elected in November, 2018, in large part as an explicit repudiation of Trumpism. Impeachment is not revolution. It is constitutionally mandated redress, remonstrance, and remedy, a very public enactment of the rule of law that is also a very public process of public education and political mobilization on behalf of democracy.
If the Democrats are to pursue such an approach in a savvy rather than a self-defeating way, they need to recognize that the Republican-controlled Senate can be relied upon to inveigh against, and to obstruct, an impeachment by all means necessary; and that it is what takes place in the House, under the control of the Democratic majority, that is crucial. By starting with an adoption of Rep. Tlaib’s Resolution, the House must commence a protracted process of investigation, inquiry, and deliberation that cannot remove the President but can do two other more important things:
(1) make very public that while the Republican party is the party of corruption, hostility to the rule of law, and election meddling and voter suppression, the Democratic party is the party of legality, transparency, political fairness, and democracy; and
(2) by doing so, can weaken Trump, call attention to his malfeasance in office, and announce an alternative vision for reinvigorating democracy and thus delivering real improvements to the lives of ordinary Americans.
Such a process could begin with a preliminary investigation by the House Judiciary Committee (or by a House Select Impeachment committee, which would be more complicated). It could be followed by a set of sustained impeachment hearings by the House, followed by sustained deliberation by the House, and only at the very end by an actual vote to bring charges before the Senate.
What is most important is that it should be serious, protracted, and very public, and that at every phase the proceedings be televised, and accompanied by a very savvy Democratic mass media and social media strategy to publicize the wrongs of the Trump administration.
It bears reminding that the impeachment of Nixon, which never came to a House or Senate vote (due to Nixon’s resignation, something that will not occur in the case of Trump), was a very protracted process. While the Watergate break-in took place on June 17, 1972, and much reporting, revelation, and maneuvering followed in the ensuing months, it was not until May 17, 1973 that the Senate Select Committee began its public investigation, followed a day later by the appointment of Archibald Cox as Special Prosecutor; it was only a year later, on May 9, 1974, that the House Judiciary Committee commenced its impeachment inquiry; and it was almost three months later, at the very end of July, 1974, that the Judiciary Committee voted to approve three articles of impeachment. Because Nixon resigned shortly thereafter, the articles of impeachment were never brought to a full House deliberation and vote; a case was never prepared for “trial” by the Senate; and a Senate trial was never held — all things that, had they occurred, would surely have taken time.
Imagine if something like all of these steps were commenced now, and proceeded over the course of the year to come.
A preliminary House impeachment inquiry that began in June could well proceed through the end of the year, especially if properly orchestrated, with public hearings on (1) all of the issues raised by all sections of the Mueller Report; (2) questions of corruption related to the Emoluments Clause, but also to the maladministration of federal departments and agencies by corrupt appointees who were forced to resign in disgrace; (3) the questionable handling of security clearances for Trump’s family members and cronies; (4) Trump’s declaration of a “national emergency” to appropriate money for his wall; (5) the ways that under Trump voting rights and civil rights have been abridged; and (6) the general confusion and chaos that has plagued the executive branch of the government under a President who does not read, who Tweets crazy shit every day, and who spends more time golfing, at his own resorts, than any previous President– clear signs of Trump’s failure to do his job.
All of these matters are legitimate topics of an impeachment inquiry which, if done carefully and fairly, would provide a serious public forum for the judgment of the Trump presidency and its manifest failures.
Such a preliminary inquiry could summon for public testimony a wide range of current and former members of the Trump administration; members of the Mueller team, including Mueller himself; and also a wide range of experts — legal scholars, historians, management consultants, and journalists — who could comment, in public hearings, about the ways that the Trump administration has either violated the letter or the spirit of the law, or has otherwise seriously endangered constitutional democracy.
Imagine that such a preliminary inquiry resulted in the drafting of charges of impeachment by the Judiciary Committee in late November or December, and that these charges were brought before the House in mid-January, 2020. Imagine that the House deliberation is similarly orchestrated in a careful and politically savvy way, so that it proceeds, in a very public manner, for an additional two months. Imagine that sometime in March the House votes on impeachment resolutions, and that these pass on more or less a straight party line vote that makes crystal clear to the two thirds of the American public that are not Trumpist that the Democrats stand for constitutional democracy and the Republicans for shameful support of an awful president.
And imagine that in early April the Senate is, finally, compelled by the Constitution to deal with an impeachment trial. The impeachment trial of Bill Clinton took approximately a month (from January 7-February 12, 1999). If the Senate organized a similar process, this would mean a vote in May of 2020. While the Republican majority in the Senate cannot be counted on to organize a serious or fair process, the House could present them with a fait accompli, and force at least a pro forma “trial” and a vote. The Republican majority will almost certainly vote against the removal of the president. This will represent a legal “defeat” of the constitutionally prescribed impeachment process. And there can be no doubt that Trump and the Republicans will seek to exploit this “defeat.” And they will succeed in mobilizing their base.
Trump has many ways of mobilizing his angry base, and he can be counted on to do this regardless.
But if the entire impeachment process is orchestrated wisely, then while it will end with a legal “failure” to remove, this will also be a political success. For it will have demonstrated, to the rest of the country, that Trump is a terrible and dangerous President who is unfit for office, and it will have demonstrated that the Republican party is now a craven enabler of this President.
Imagine that while this process unfolds, a vigorous, issue-oriented Democratic primary proceeds; that this process leads to the emergence of a front-runner who is able to build momentum, or even to a real contest between two candidates each of whom is articulating important issues. Imagine that for much of 2020, Trump is being legitimately tarnished by an impeachment process, and is lashing out in further damning ways, while at the same time Democratic leaders in Congress and on the campaign trail are looking and behaving like serious leaders.
This is a scenario for electoral victory in November 2020.
Of course, it is only a scenario. It has risks and, like all strategies, the risks are easy to identify.
But “staying the course,” and business as usual, also has great risks. If Democrats allow Trump to bully them, and to obstruct justice, and to act with impunity, and to wait and wait for courts to “rescue” their normal investigations, then they will squander a real opportunity to accentuate Trump’s real failures and vulnerabilities, and to capture public attention, and demonstrate real political leadership.
What then, when Trump runs for re-election with a low unemployment rate, and a base that will be mobilized in any case, and a Democratic party that will have proven itself to be timid, and a general electorate that will be increasingly cynical? Is this a scenario in which we can be confident that Trump will be defeated? I doubt it.
Pelosi has been saying that Trump wants to goad Democrats into an impeachment fight. But Trump has been fighting for years, and he is now assaulting constitutional democracy itself. When a bully is inept, and vulnerable, he will lash out, believing that his bullying will carry him forward. There comes a time when it is necessary to accept such a bully’s challenge; to have confidence in your ability to summon your strength to win; and then to doit.
Trump has been attacking Democrats, and vulnerable populations, and the Constitution, for months now. It is time for the Democrats to fight back.
If not now, when?