Below is my column on the curious approach of the House Democrats investigating Trump. Whatever this might be, it is not a particularly promising way to build a case for impeachment.
Here is the column:
The House Judiciary Committee has announced that it is prepared to fire off more than 80 subpoenas to individuals and organizations, the first salvo in its investigation of President Trump. The flurry of subpoenas seems to follow Oscar Wilde’s rule that “moderation is a fatal thing. Nothing succeeds like excess.” Yet, if the purpose of these subpoenas is impeachment, as suggested by many members, this is not the way to go about.
Faced with the prospect that special counsel Robert Mueller might not find evidence of collusion, Democrats seem to be shifting toward a range of alleged transactional and collateral crimes by Trump, including many committed before he took office. It is what the military calls “recon by fire” — shooting at any possible enemy positions to see who jumps up. Trump unquestionably presents a target-rich environment, but if Democrats continue this approach they are likely to run out of time — and the public could run out of patience.
As the last lead defense counsel in the last impeachment trial, none of this looks to me like a promising way to build an impeachment case. Such cases take focus and time to develop. Take my trial involving Judge Thomas Porteous Jr., which the judiciary transmitted to the House in June 2008. Despite being impeached unanimously by the House, the Senate trial was not completed until December 2010. That was 16 months on a case that was already investigated by the courts. There are roughly 20 months until the next presidential election, and the Democratic strategy will likely enable Trump to slow things down.
Few members of Congress, and fewer citizens, would support an effort to remove a president in his final year in office and shortly before the 2020 election. Ideally, the House committees have about 12 months to make and prosecute a case for impeachment. The fastest model was Bill Clinton’s impeachment, in which the House broke from tradition and dispensed with its own investigation. It used independent counsel Kenneth Starr’s report to take articles of impeachment quickly to the House floor. That was justified on grounds that Starr supplied a detailed, lengthy record of alleged violations.
Democrats are now pursuing the traditional approach of conducting their own investigation, and the better comparison is with the Watergate impeachment. However, any comparison raises more questions about the real purpose behind these subpoenas and whether Democrats are undermining the chances for an actual impeachment.
From the outset, the Watergate committees had more time and limited their court fights to prevent Richard Nixon from running out the clock. Nixon was sworn into his second term on Jan. 20, 1973. The House Select Committee was formed the following month, and Nixon resigned in August 1974, roughly 17 months later. That was roughly the same period as the last impeachment process involving Judge Porteous.
Even if today’s House could follow the same pace, any trial would occur with an election just months away — and that’s without the delay of multiple subpoena fights. It takes little to drag out such fights for years, as demonstrated by the Obama administration, which routinely opposed congressional subpoenas.
The Watergate committees selected counsel with no prior positions on the merits of the investigation. The lead counsel was Sam Dash, a career prosecutor widely accepted as unbiased and fair, who carefully avoided any appearance of prejudging the evidence. Indeed, years later, he resigned as Ken Starr’s ethics adviser because he felt Starr’s appearance before the House Judiciary Committee left the appearance of being an “advocate” rather than an impartial investigator.
The selection of some of the investigating counsel by the current House leadership already is being attacked as having prejudged the evidence. House Intelligence Committee Chairman Adam Schiff (D-Calif.) hired former prosecutor and NBC News legal analyst Daniel Goldman, who previously called Trump a “shameful” person who “doesn’t care about the country” and who “ ‘looks bad’ because he committed a crime.”–
Meanwhile, Judiciary Committee Chairman Jerry Nadler (D-N.Y.) hired Norm Eisen, who handled ethics questions for President Obama and was a CNN commentator. Eisen declared months ago that the criminal case for collusion was “devastating” and that Trump is “colluding in plain sight.” He also was the counsel in a court action accusing Trump of accepting unconstitutional emoluments through his family hotels and property.
Trump has dismissed the storm of affidavits as a “fishing expedition” and indicated he would fight back. The Obama administration, he said, “didn’t give one letter” to congressional investigators. That isn’t exactly true; President Obama produced considerable evidence but also resisted many congressional demands — with the support of current Democratic leaders.
The Obama administration tied up Congress in the courts, and the Trump administration could easily do the same. The best way to win such fights is to show a court that Congress has made focused, circumspect use of subpoena authority — but with subpoenas rapidly passing the 100 mark on an expanding array of subjects, courts may be less sympathetic with Congress in balancing executive privilege against congressional oversight.
The Select Committee on Presidential Campaign Activities was set up in the Senate to investigate the Watergate break-in, the subsequent cover-up and crimes related to the 1972 presidential election. The success of the House and Senate Watergate committees was their focus on crimes known by President Nixon during his presidency; they ultimately flipped public opinion – and many Republican lawmakers – into supporting impeachment.
Today’s polling shows the same challenge exists. A Quinnipiac University survey shows that 64 percent of voters believe President Trump broke the law before taking office but only 45 percent believe he has committed crimes in office. More importantly, 59 percent said Congress should not begin impeachment proceedings against him. In light of the timeline, one would expect Democrats to focus on clearly impeachable acts in an effort to turn public opinion. There are legitimate matters to investigate, including some alleged crimes extending into his term of office, like election fraud.
Yet, even before receiving the Mueller report, House investigators are ordering Trump family members, past business associates, former banks and others to turn over documents on matters far removed not only from Russian collusion but the actual Trump presidency. Rather than pursue alleged crimes before Trump took office, Congress should follow the Watergate model and focus on claims of obstruction and other abuses of presidential power.
Of course, that depends on whether Congress is seriously pursuing impeachable offenses or just trying to wound a president who is polling around 46 percent popularity. Democrats clearly want to see investigations aplenty but less obvious is whether their leadership actually wants to remove Trump. Indeed, that may be the last thing they want to do. The current strategy would allow Democrats to pump rounds into the White House and then, with the approaching election, declare that the ultimate decision will be left to voters. And that would follow another rule from Oscar Wilde — that “the only way to be rid of temptation is to yield to it.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.