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.