The Black Jersey: How Trump And Congress Are Competing For Last Place

Below is my column in The Hill newspaper on a curious aspect to all of the posturing taking place in Washington. Putting aside the bluster on both sides, there is strange alliance coalescing between the Democratic Leadership and the White House in running out the clock for impeachment. The only essential element is that they do not look like they are playing for time. Both sides derive political benefit from stirring up their bases with impeachment talk but neither side actually wants to see an impeachment. The rest is classic D.C. kabuki.

Here is the column:

In Washington, the race is on for the “black jersey.” That was the jersey awarded in the early 1900s to the slowest rider in a bicycle race. The renowned champion, Luigi Malabrocca, took so long to race a course after stopping for lunch and an aperitif that most of the fans went home before he crossed the finish line. But Malabrocca is about to be outdone, as both Congress and the White House strive to slow down investigations to prevent any real impeachment. The hope is that the public will eventually go home, or at least to the polls, with the prepackaged narratives of the two parties. From privilege fights to legislative investigations, the goal is to slow down the impeachment process without appearing to do so.

President Trump is promising to challenge any impeachment proceeding. It would be a meritless claim, but the White House is likely more interested in the ultimate delay than the ultimate decision. While I do not see a compelling case for impeachment, this would constitute a frivolous challenge to Congress under Article I. Impeachment, after all, is a process that the framers left to Congress, and there is little basis for judicial review or intervention. The White House knows that, but it also knows it has key allies in slowing down impeachment. Those allies are the Democrats.

It has been apparent for months to many of us in Washington that the Democratic leadership is opposed to actually impeaching Trump rather than simply going through the motions of investigations. While many Democratic lawmakers raised impeachment during their 2018 midterm campaigns, House Speaker Nancy Pelosi and other leaders quickly downplayed any plans for impeachment after winning the House. That bait and switch has not gone over well with many voters.

This week, Representative Maxine Waters, one of the leading voices for impeachment through the midterms, reportedly adopted a more muted position by not opposing the leadership plan to put impeachment on the backburner during a closed conference with Democratic members. Thus, Democratic presidential candidates and members of Congress continue to call for impeachment, while the House Democratic leadership guarantees the clock will run out on any viable impeachment effort.

The great danger is that House committees could inadvertently stumble over an impeachment offense that forces their hands. However, with all of the mutually desired litigation, the calendar is likely to protect members from actually having to fulfill their pledges. The strategy is to continue investigating as a matter of oversight rather than impeachment. This will eat up time while hopefully damaging, but not removing, Trump. Pelosi can then claim at the end of the year that there is no practical time for impeachment. It is all meant to satisfy Democratic voters still being told that the party wants to impeach, if only there was more time or evidence.

The fact is that there is enough time, if Democrats move aggressively. By starting an impeachment investigation, Democrats would have a better position to quickly and decisively defeat privilege arguments. This is a function of the Constitution to which the courts would yield. After all, impeachment is mentioned in the Constitution, while executive privilege is not. In seeking information for impeachment, Congress would place itself in the strongest possible position. But if your purpose is to delay, long privilege fights are better, like Malabrocca stopping for an aperitif.

Trump took an unprecedented and commendable position in waving executive privilege over the special counsel report. He now seems to be moving aggressively to bulldoze that higher ground by reportedly asserting privilege over the testimony of everyone, from former White House counsel Don McGahn to officials with knowledge of Trump overriding security officials to give Jared Kushner security clearance.

Most of these challenges will fail. Congress has oversight authority in these areas, and the White House already has waived executive privilege for the information contained in the special counsel report. There are viable privilege claims to be made, even with regard to McGahn, but they are limited. A court likely will allow the questioning of McGahn to the full scope of the special counsel report. That is a wide range of information that has been moved into the public domain, and the White House will not be able to get that cat to walk backward. But that is not the point here. It just wants to slow down the cat, in a mutual desire to run out the clock.

The same is true on other privilege assertions, like the one barring the testimony of former White House personnel security director Carl Kline, who was one of a number of national security experts ordered by Trump to give a top secret clearance to Kushner and others despite objections from legal and security experts. Congress now is threatening a contempt sanction against Kline. However, such a case would go to the Justice Department to prosecute, and it would refuse, just as it had refused to prosecute former Attorney General Eric Holder for withholding evidence from Congress. This move will, therefore, likely result in no real action.

However, it will take time, and that is the point. So welcome to the “corsa al ultimo posto,” or the “race for last place.” The sad part of all this is that the voters, as the “marks” in this Washington con game, are likely to buy the whole thing. The key with any good con is to use the fantasies of the marks to carry out the scam. This political shell game is designed to keep voters believing they can still win. There never was an impeachment pea under any of the three shells, but that is not likely to matter in the end.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He testified on the Bill Clinton impeachment standard, represented former attorneys general in that litigation, and served as lead defense counsel in the last Senate impeachment trial.

23 thoughts on “The Black Jersey: How Trump And Congress Are Competing For Last Place”

  1. The illiterate and self-confirmed mental case progressive darling Maxine Waters: “‘PEECH FOtee FI!”

  2. Why publish crap like this, is there a president and congress, since JFK, that wasn’t competing for last place?

  3. President Donald J. Trump will go down in history as the Great American Dragon Slayer. Just ask Hillary and Jeb. Every subsequent conservative act he takes (i.e. Gorsuch/Kavanaugh) is nothing but gravy. After the “Swamp” is completely drained and the coup-coup Obama Coup D’etat in America has been annihilated, President Trump will be anointed the Great American Savior.

    1. Trump is the Michael Cohen of the Republican Party, a useful “fixer.”

  4. Is it just me or does anyone else wonder why JT has not yet opined on Barr’s apparent refusal to appear before the House Judiciary committee on account of the fact that he will not submit to being questioned by an attorney? Despite being a supporter and friend of Barr, JT cannot deny the fruitlessness of the 5-minute rule in attempting to gainfully question a committee witness. Perhaps JT’s silence on the matter is indicative of his inability to fashion a credible defense to Barr’s refusal. It is quite a sad commentary that the Attorney General is unwilling to be questioned by a lower ranking attorney!

    1. its just you


      FBI investigating alleged antifa scheme to ‘stage an armed rebellion at the border’

      The FBI is examining an alleged plot where antifascist activists “planned to disrupt U.S. law enforcement and military security operations at the US/Mexican border.”

      The activists are accused of seeking to purchase guns from a “Mexico-based cartel associate known as Cobra Commander,” according to a December FBI document obtained by the San Diego Union-Tribune. The FBI cautioned multiple agencies that the activists were aiming to “stage an armed rebellion at the border.”

      The FBI report was issued to agencies including the Department of Homeland Security, U.S. Customs and Border Protection, the Central Intelligence Agency, and the National Security Administration, and others.

      But so-called Cobra Commander Ivan Riebeling and Evan Duke — both individuals named in the FBI — denied the accusations and said the plot didn’t make sense.

      “It doesn’t make any sense that someone in the United States would purchase guns in Mexico,” Riebeling told the San Diego Union-Tribune. “And the Hondurans certainly didn’t bring money to buy guns. It doesn’t make any sense; in fact it’s extremely absurd to say the Hondurans wanted to attack the United States at the border.”

      Two law enforcement officials said that the investigation is still being conducted. The document was provided to the Union-Tribune by an anonymous source who did not want to be named and did not consent to providing the document online since the investigation is ongoing.

      Such activists that label themselves “antifa” or “antifascist” are tied to often-violent left-wing protest groups. For example, an alleged antifa leader was arrested and charged earlier this year with aggravated assault and ethnic intimidation in connection to an attack on two U.S. Marines.

    2. Congress has oversight power. Quote the Constitution where it give Congress power to delegate that authority to un-elected 3rd parties? The only reason for an attorney to Q Barr is either both of the following: Barr committed or Congress allege he committed a crime, or Congress desires only to put on an “impeachment type” dog and pony show lacking actual impeachment, as Turley describes.

      Barr and Trump committed no crime and neither is alleged to have committed any crime. If either committed a crime, Congress’ sworn duty is to impeach them both, and to fail that confirms the Dems lied when they took their oath, and must be replaced next election.

  5. Impeach my beach in Maine. Let the rain stay mainly in the plane. And not on the runway. Much Ado About Nada. Trump will go down in history. So will the jokes in Congress from both sides. America: God shanted his grace on thee a long time ago. Time is of the essence. Viva La France, where people wear no pants and frogs get eaten. If Trump gets impeached I am cutting down my peach trees.

  6. Congressional Democrats are the do-nothing party, other than fanning tensions in our nation


    Democrats Inaction on Omar, Tlaib, Northam have Normalized Racism within the Party

    The Democratic Party would like to rewrite history and make everyday Americans believe that the GOP was the party of slavery, Jim Crow Laws, and the founders of the KKK. But the fact of the matter remains that the DNC was birthed in racism and has never shed that ideology.

    The recent wave of racist statements, wearing of blackface, KKK photos, and anti-Semitic remarks by Democrats currently holding public office are fueling racism in the United States today.

    Perhaps the most high-profile incident is the racist quagmire among the top political leadership in Virginia. Democrat Gov. Ralph Northam infuriated pro-life citizens by pushing legislation that would legalize abortion up until the moment of birth, and perhaps afterward. The public outrage prompted one resident to blow the whistle on his secretive racist inklings.

    Gov. Northam posed in a racially charged costume during his college days, making a mockery of the African-Americans in his state. Initially, he confessed but recanted after discovering his identity was either hidden by the makeup or the KKK hood in the image.

    With people unsure which he was, Gov. Northam tried to escape blame. But the whistleblower came forward, and the now-disgraced Northam fessed up under duress. His apologies ring hollow given the circumstances.

    Virginia Democrats pushed for impeachment. But when they discovered Lt. Gov. Justin Fairfax was under a cloud of sexual misconduct allegations, and the state’s attorney general was also an alleged racist, blackface wearer, the Democratic Party appears willing to let them all escape without consequences.

    When faced with dealing with racist Democrats holding sway or a Republican next in line who did no wrong, the left backs racists. And why not, Democrat slave owners ruled Virginia politics before Republican Pres. Abraham Lincoln drew his red line in the sand.

    But the deep-seated politics of racism in the Virginia Democratic Party are par for the course. Today’s DNC has embraced anti-Semitism with the same fervor it pushed through Jim Crow Laws that created “black only” schools and bathrooms. When Rosa Parks refused to sit at the back of the bus, she was standing tall to Democrats, not Republicans.

    Just as the KKK perpetrated violence against Jewish Americans, the new wave of Congressional Democrats is spewing similar hate speech.

    Two such anti-Semites that were thoroughly vetted and endorsed by the Democratic National Committee are Michigan Rep. Rashida Tlaib and Minnesota Rep. Ilhan Omar. Speaker Nancy Pelosi championed their cause by seating them on powerful committees, even passing over more senior politicians.

    The two Muslim upstarts immediately engaged in targeting U.S.-Israel relations and let loose a bevy of hate speech when they discovered they would not be able to undermine American policy toward the Jewish State.

    “Israel has hypnotized the world, may Allah awaken the people and help them see the evil doings of Israel,” Rep. Omar posted on Twitter.

    The Congresswoman’s words are remarkably similar to the anti-Jewish and anti-American hate speeches given by radical leaders of the Iranian regime. Although the complicit mainstream media has been quick to gloss over their hate speech with splashy headlines about apologies, the radical Muslims in Congress have yet to experience any actual consequences.

    Not surprisingly, Rep. Omar followed Democrat Keith Ellison, who won Minnesota’s Attorney General office despite being dogged by allegations of sexual abuse.

    Democrat Rep. Tlaib, a Palestinian-American, opened her Congressional career with profanity and has quickly proven she is nothing short of a hatemonger. Rather than talk about how she planned to improve the lives of her constituents, she had this to say.

    “We’re going to go in there and impeach the mother%$^er, baby” Tlaib told her young child. What a mom!

    Tlaib is also friendly with vile anti-Semite Louis Farrakhan, for whom she’s written numerous articles for his publication “Final Call.” Republican congressional leadership has called for the pair of anti-Semites to be disciplined or removed from office.

    And, conservative icons such as Jewish Ben Shapiro are making it clear that this new progressive party is just a repackaged product from the age of slavery, Jim Crow, the birth of the KKK, and anti-civil rights Democrats.

    “The truth is that the Democratic Party has been flirting with, and in some cases openly embracing, anti-Semitism for years,” Shapiro wrote. “That’s why top members of the Democratic Party continue to kowtow to open anti-Semites like Linda Sarsour and Louis Farrakhan; it’s why the Democrats booed Jerusalem in the 2012 Democratic National Committee platform; it’s why the Obama administration routinely played public relations arm for the Iranian government; it’s why no major Democrat will go on record condemning Tlaib or Ilhan Omar.”

    To date, President Trump has called for both anti-Semite Congresswomen to resign from office. The president’s daughter, Ivanka, and son-in-law, Jared Kushner are Jewish, and the Commander-in-Chief maintains a decades-long personal friendship with Israel Prime Minister Benjamin Netanyahu.

    When you compare apples to apples, there’s little doubt that the constant flaming of racial tensions by Democrats trails back to their racist, anti-Semitic politics.

  7. Trump disabling the DOJ’s Civil Rights Division and other government watchdogs is the best reason to impeach. The CRD is the most effective oversight of federal, state and local law enforcement and other officials. It means it’s basically the Wild West in the police community with little fear of federal.

    1. the DOJ’s Civil Rights Division and other government watchdogs is the best reason

      The proper verb is are which proves the Federal government is malignant to the human brain.

      Trump would do Americans a favor by treating the Federal Government as a cancer and rid us of its malignancy…forever more

      1. “Del” has the same avatar as “Anonymous” currently at the top of this thread. The content of both posts is highly reminiscent of Estovir and related aliases.

        1. The New York Times decided to use their new location at the Reichstag to publish a couple of explicitly anti-Semitic cartoons. Yes, they bungled the apology. And yes, the Democrat-media complex gave them cover, with the ABC, NBC, and CBS offering zero coverage during their morning and evening broadcasts over the weekend. CNN did devote a whopping 12 minutes of coverage to the foul-up. And after all that—the NYT published yet another anti-Semitic toon (via Fox News):

          Wait…the ?@nytimes? featured ANOTHER Netanyahu cartoon? This one AFTER the Thursday cartoon depicting Netanyahu as a dog? Am I reading this right? Is the Times obsessed with Israel’s prime minister?
          — Dan Senor (@dansenor) April 29, 2019

          After apologizing over the weekend for publishing a syndicated cartoon with “anti-Semitic tropes” in its depiction of Israeli Prime Minister Benjamin Netanyahu and President Trump, The New York Times was criticized again Monday over yet another caricature of Netanyahu.

          Dan Senor, a former Pentagon aide and advisor to Mitt Romney and Paul Ryan, called out the “paper of record” for printing another anti-Netanyahu cartoon, this time depicting him as a blind Moses-like figure holding a tablet with the Israeli flag on it instead of the Ten Commandments.
          The cartoon appears to have been published this weekend in the international edition of the paper, the same edition that printed Thursday’s cartoon.

          Jonathan Greenblatt, the CEO and national director of the Anti-Defamation League (ADL) called on the Times to take “immediate action” over the new cartoon.
          “This is insensitive, inappropriate, and offensive. It shows once again that the @NYTimes needs to educate its staff about #antiSemitism. We call on them to take immediate action,” Jonathan Greenblatt tweeted Monday.
          2. Here’s the anti-Semitic cartoon that the NYT published
          — Yashar Ali ?? (@yashar) April 27, 2019

          An Editors’ Note to appear in Monday’s international edition.
          — New York Times Opinion (@nytopinion) April 27, 2019

          In the NYTimes international: Bibi Netanyahu characterized as a dog leading a blind, Jewish Trump.
          When did the @nytimes hire David Duke as an editor?

          — Harry Khachatrian (@Harry1T6) April 27, 2019
          The anti Semitic cartoon published by the @nytimes is a symptom of a deeper problem on the left. It’s acceptable to many on the left to employ anti Semitic tropes as long as they’re directed against Israel. Anti Zionism is becoming an acceptable cover for anti Semitism
          — Alan Dershowitz (@AlanDersh) April 28, 2019

          We apologize for the anti-Semitic cartoon we published. Here’s our statement.
          — New York Times Opinion (@nytopinion) April 28, 2019

          As many quipped on Twitter, no one told us that Ilhan Omar or David Duke were running the NYT op-ed page.

    2. I thought the insurance policy, the Steele Russian Dossier, was ” the best reason to impeach”.
      (The dossier “just happened” to officially suface right before the Jan. 2017 inauguration, so impeachment proponents had a bit of a running start).
      Always good to have back-up plans and other issues to keep “impeachnent talk” alive.
      Impeachment itself is extremely unlikely, even with the Democratic House majority. For the time being, “impeachment talk” will continue unless and until it’s determined to be a political loser.

  8. Both sides derive political benefit from stirring up their bases…

    And Turley is doing exactly the same thing by posting this hollow story. So the Dems are backing off of their impeachment talks and Trump is saying he will defend himself. yawn. Here’s the real shocker: The sad part of all this is that the voters, as the “marks” in this Washington con game, are likely to buy the whole thing. Another yawn.

    Turley seems to be perturbed that the impeachment process isn’t moving forward. Oh no, does this mean he won’t be asked to speak in front of a camera, anywhere!? Just go for a hike and try not to get hauled out by helicopter.

  9. “Trump took an unprecedented and commendable position in waving executive privilege over the special counsel report. He now seems to be moving aggressively to bulldoze that higher ground by reportedly asserting privilege over the testimony of everyone…”

    Oh please. Trump still has the high ground that he took by waiving (not “waving”) executive privilege. In asserting it now he is saying that it is time for the children to stop playing their silly games and for the adults to take over. He was willing to stand by while the Mueller investigation allowed the Democrats to spew their venom, but that was their one shot. It failed, and now it is time for them to let it go and move on with the nation’s business.

    1. Bill H.,
      Maybe that wasn’t “their one shot”. Maybe CREW’s emoluments legal ploy will magically find another basis for impeachnent.😄
      And there is also Brennan’s talk of treason; I think Lawrence Tribe was pushing that line, too. And Pocahontas is on record now advocating impeachment, possibly backed by Tribe(s).
      I think the Logan Act😃😂🤣 also came up as an issue that could be incuded in the impeachnent mix.
      And earlier in this same thread, we had “the best reason” 🤔🙄 yet given for impeachment.

  10. L4D: What’s the rush?

    Democrats have never done anything worthwhile for the US of A. Their only lust is for power and nothing more. L4D asks why they should do anything other than play games.
    There you have it: the modus operandi of the Left. Posture, attention seeking behavior and awful theater.

    If only Dems in the US House worked on behalf of Americans and did something about our nation’s very grave issues. Instead they milk our taxes, Sheila, Maxine and Nancy dress lavishly and act like queens deserving thrones.They deserve the guillotine

    Congressional Job Approval
    22.5 Approve 64.3 Disapprove

  11. Turley wrote, “While I do not see a compelling case for impeachment . . . [edit] . . . [t]he fact is that there is enough time, if Democrats move aggressively . . . [edit] . . . [but] the calendar is likely to protect members from actually having to fulfill their pledges.”

    Why is Turley pretending to be so disappointed? Or is Turley sincerely disappointed? Maybe it’s some sort of taunt. Like a triple dog dare. There’s enough time if Democrats move aggressively even though Turley sees no compelling case for impeachment.

    Exactly who’s the cat and who’s the mouse? Right now Gramma Nancy’s the cat and Trump’s the mouse. I say Gramma Nancy toys with Trump all the way till election day. Unless something completely and totally indefensible turns up–like a straightforward bribery case against Trump. Mueller referred fourteen investigative matters to other United States Attorney’s offices. Let’s wait and see what those Dragon’s Teeth yield. What’s the rush?

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