Below is my column in The Hill newspaper on the mutual threats from Nancy Pelosi and Donald Trump to use investigations in a tit-for-tat struggle with the new Congress. In his press conference after the election, Trump said that he is prepared to adopt the same “war-like” stance and “They can play that game, but we can play it better.”
This promises to be long and intense two years, but there does not appear to be much hope for actually addressing some of the important issues that divide this country.
Here is the column:
Voltaire once wryly observed that “the art of medicine consists in amusing the patient while nature cures the disease.” In a divided Congress, with each party holding firm majorities in their respective chambers and only two years until the next election, the Democrats and Republicans are likely to do much to amuse the voters with subpoenas and investigations with little to address the underlying polarization across the country.
Both Nancy Pelosi and Donald Trump have already suggested that they view investigations as a political tool for their own agendas. What is interesting is that Pelosi and Trump have not hesitated to reveal those agendas in statements that have made their supporters cringe. In the days before the election, Pelosi commented on how to get what she wanted: “Subpoena power is interesting, to use it or not to use it. It’s a great arrow to have in your quiver in terms of negotiating on other subjects.”
Congress has fought hard to protect its inherent powers against arguments that such investigations are little more than politics by other means. With the addition of new justice Brett Kavanaugh, who holds exceptionally favorable executive power views, such statements are both highly inappropriate and damaging for Congress. Just as Trump’s tweets are often used in court to undermine the case for the administration, Pelosi’s comments on subpoenas to coerce concessions on “other subjects” may lead to briefs seeking to quash such subpoenas.
Of course, Trump proceeded to respond in equally self defeating terms. He declared that “Pelosi says she’s going to mechanize the speakership and use it as a great negotiation with the president. That’s an illegal statement.” In fact, there is nothing unlawful in Pelosi’s statement. There is a difference between what is illegal and what is idiotic. Pelosi’s statement fell into the latter category. Trump, however, then followed Pelosi’s lead in revealing his own strategy in advance: “That alone takes two years to get it to the Supreme Court, that statement, before you do anything.” In other words, Trump has been assured that his counsel can tie up any subpoena fights for two years in the courts, running out the clock on investigations.
After the election, Trump went even further to make clear that he and Pelosi are following the same approach to the misuse of investigatory powers: “If the Democrats think they are going to waste taxpayer money investigating us at the House level, then we will likewise be forced to consider investigating them for all of the leaks of classified information, and much else, at the Senate level. Two can play that game!”
With his threat, Trump joined Pelosi in a race to the bottom, promising tit for tat use of investigations against his political opponents. That threat becomes more concerning given the role of his own Justice Department in the enforcing of subpoenas, particularly as Trump likely plans to replace Attorney General Jeff Sessions. Trump’s irresistible impulse to counterpunch is the best hope for Democrats seeking impeachable acts.
Indeed, it is the response to the Democrats and not the “disease” they spread that is most likely to kill Trump. There is still no clear evidence of criminal obstruction or collusion against him. However, this is a disease that claims victims by the response of the patient. Democrats are hoping to prompt exactly the response that Trump promised, which is reacting to legislative investigations with abusive use of executive powers.
Time, however, remains of the essence. Even assuming special counsel Robert Mueller completes his investigation by the end of the year, any allegations of impeachable offenses are likely to still require investigation and the subpoenas that Pelosi so relishes as arrows in her quiver. Committees have to demand the information, and the White House is likely to offer some production, requiring review and further negotiations.
Once a committee subpoena is sought, the White House is likely to draw out compliance. If the committee still is not satisfied, any contempt sanction would require a vote of the entire House and then a referral to the Justice Department that routinely refuses to take legislative contempt charges to grand juries. Any direct fight over the subpoena authority would likely favor Congress, but it would have to work its way through three levels of judicial review in a process that could well take until 2020.
The impeachment calendar is little better. Even assuming Trump ends up wounding himself in 2019, that gives Democrats about a year to investigate, impeach, and remove. That would be a nascar pace. In the case of Bill Clinton, a lame duck Congress was able to start the process for impeachment because of the preexisting independent counsel investigation and extensive findings given to Congress. Clinton was impeached in December 1998, and then acquitted in February 1999. There will be no impeachment in this new lame duck Congress, and Democrats have indicated they will hold off on seeking impeachment at first, as opposed to investigating possible financial and corruption charges.
In the case of Richard Nixon, the Watergate investigation was well underway before the presidential election of 1972. In May 1973, Archibald Cox was appointed to investigate as special prosecutor. Thereafter, fights over tapes and other evidence in Congress took many months. In July 1974, the Supreme Court ruled against Nixon over the tapes and, soon thereafter, the House committee voted out articles of impeachment. Had Nixon not resigned from office and the House impeached had him, the process likely would have continued all the way to the end of 1974.
Putting aside the longer period of investigation in the Nixon case, it seems unlikely that an impeachment trial would be held, let alone be successful, before the end of Trump’s first term. Obviously, mistakes by Trump can speed this process along with abuses of power. Frankly, Trump needs only to control himself and watch the calendar to frustrate these efforts. For his staff, however, that is a strategy based on hope over experience.
In the meantime, Trump has the benefit of an unassailable majority in the Senate. The new members are largely in his debt and were elected to defend his legacy and policies. Senators like Susan Collins of Maine and Lisa Murkowski of Alaska just became more marginal influences on outcomes. Moreover, Trump now can deliver on a strong conservative nominee on abortion if another seat opens up. Finally, any impeachment will collide with a Senate solidly in control of the White House. It is highly unlikely that, even if an impeachment could be launched in time, a two thirds vote could be marshaled by Democrats in an actual Senate trial.
What is left is entirely visceral. The Democrats have a strategy with the markings of a campaign to wound but not to kill. Thus, little work is expected to get done as both sides engage in spasms of investigation and recrimination. Voltaire is in the House, as the art of politics will be to amuse each base while the disease cures itself in the 2020 election.