Dems are beginning to break from Nancy Pelosi and demand
that impeachment begin now. Pelosi is aggressively attacking Trump and clearly rattling him, but she has still not defined when “enough is enough,” and made clear exactly what would finally
trigger her to shift and endorse impeachment. Steve offers Nancy a game plan that would
navigate the internecine conflict in the Democratic Party.
It’s more complicated than 3-D chess,
requiring an ability to envision a vast array of scenarios that could unfold
over an lengthy period in which chaos, uncertainty, and rogue behavior will be
the norm and not the exception. It
requires strategic thinking, weighing competing objectives, and – above all –
the ability to keep a rapidly diverging caucus of Democratic legislators
tightly in line.
Do the Dems dare to impeach? If so,
when? And on what specific grounds?
There are the Democrats who believe
that it is wiser to refuse to act on the mountain of evidence that points to
impeachable offenses by the President, on the theory that his inevitable acquittal
in the Republican Senate will appear as a vindication and exoneration, thereby enhancing
the odds of Trump’s re-election, and that control of the House could return to
the Republicans.
And then there are those Democrats
who, for reasons of pure principle and/or contrary political instincts, believe
that a failure to initiate impeachment hearings is dereliction of
Constitutional duty, a de facto
endorsement of William Barr’s interpretation of the Mueller report, and a
wasted opportunity to wound Donald Trump in the run-up to the 2020 election.
The Democratic contestant in this
game of 3-D chess is House Speaker Nancy Pelosi, who has been the leading voice
in the anti-impeachment camp. In the last few days, Pelosi has engaged in a ferocious war of words with Donald Trump, and has clearly rattled him... and heartened her caucus with her aggressiveness. But she remains unwilling to endorse impeachment, or to even make clear what would have to happen to change her mind.
This, despite the fact that new acts of defiance continue to flow from the Trump White House, each seemingly
calculated – as Nancy Pelosi has said – to “goad” the Democrats into
initiating impeachment hearings in the House. Trump may actually savor an
impeachment fight, as he believes that the Senate will never remove him from
office, and that the failure of the Senate to convict him will be easily spun
into further evidence of a “deep state coup,” which will all accrue to his
benefit in 2020.
Pelosi has been known to opine that impeachment should not be considered
until there is “bi-partisan support,” which makes it seem as if she will never get there, period. In today’s
radically polarized world, the notion that Republicans can ever be convinced to
support impeachment seems oddly naïve for a shrewd strategist like Pelosi.
Each day, the calculus shifts. With
each new White House effort to trample on the separation of powers, Congressional
oversight, and the rule of law, Pelosi is forced to re-calculate… when has
Donald Trump gone too far? At what point does her unwillingness to act begin to
look like weakness and fear? If not now, when? At what point must she defend
the integrity, rights, and very purpose of the institution she leads? At what
point is impeachment the only way to do it?
What is perhaps most unsettling to
Democrats who favor impeachment is that Pelosi’s specific game plan is unclear,
other than for vague references to allowing the legal processes to play out.
Impatient Democrats think that Pelosi is playing into Trump’s hand in a different
way. By failing to impeach, she is allowing him to “play out the clock,”
allowing Dem subpoenas to be gummed up in the court system until election day.
Pelosi struggles to keep her caucus
in line. Former White House Counsel Don McGahn’s refusal to comply with a
subpoena to testify before a House committee may have been the tipping point. By
Tuesday evening, a number of House Democrats had come out in favor of launching
an impeachment inquiry, clearly defying the Speaker’s wishes. Pelosi herself
has become more strident in her condemnations of the President, and yet there
is still no red line.
Do Dems dare to impeach? To risk strengthening
the opponent’s hand, or to risk allowing the opponent to run out the clock? Which option runs the most risk of handing the
2020 election to Trump?
Nancy,
what is the plan? It is time for Pelosi to articulate a specific
step-by-step approach that aggressively moves House Dems into a position in which they can
clearly justify impeachment hearings, and that does not allow Donald Trump to
stall, evade, and kill the clock until after the 2020 elections. A clear plan
could mollify the most aggressive advocates of impeachment in the party and buy
Pelosi time.
What exactly would that game plan
look like?
Our exercise in 3D chess
requires that we start by looking at the moves that have already been made… this
game is already long since underway.
Let’s start by acknowledging the
painful reality that Robert Mueller unintentionally undercut his own report. With his obtuse
legal prose, his marine compulsion to honor chain of command, and his naiveté about William Barr, Mueller created a document and a
process for its release that made it incredibly easy for Barr to bury it. Most
important of all: Mueller pulled his punch. He could have said, “this office
does not have the authority to indict a sitting President for obstruction of
justice. But if it did, it would.” That would have prevented William Barr from obliterating
Mueller’s nuance. But
Mueller abdicated to Barr, and now a
sizable percentage of Americans now accept the Trump/Barr interpretation of the
report.
For
all practical purposes, this makes impeachment based on the Mueller report exceedingly
difficult. Indeed, the challenge to the Democrats is to find a way to re-open
the “court of public opinion” on its findings.
However,
there is an entirely new front in the impeachment battle now unfolding in Washington,
D.C.
In
the past 60 days, the raging Constitutional warfare between the Trump White
House and Congress has created an entirely new opening for Pelosi and the
Democrats.
In
the past 60 days, Donald Trump’s White House has turned into a black hole… a
force of gravity so completely imploded that nothing is allowed to escape.
Trump is now stonewalling on every request and subpoena from House Democrats.
He is offering unprecedented rationales for refusing to honor subpoenas, each
of which seems rooted in a belief that the President is not actually subject to
Congressional oversight or investigation or any kind. He has ordered members of
the executive branch -- past and present -- to not testify before Congress. His
Treasury Secretary has ordered the IRS to not release Trump’s taxes, despite
unambiguous language empowering a House committee to do so. His Attorney
General has been found in contempt of Congress. Trump refused to allow former White
House Counsel Don McGahn – now a private citizen -- to testify before Congress.
Trump
to Congress: drop dead.
Trump’s
strategy is clear. Block every motion, appeal every decision, delay, stall, and
stiff-arm while running out the clock toward 2020.
It
is a blunt instrument strategy, and contains a potentially fatal flaw: Donald
Trump is initiating entirely new grounds for impeachment that are in no way
contingent on the findings of the Mueller Report: obstruction of oversight. There is historical precedent… the
failure to comply with Congressional subpoenas was, in fact, the subject of one
the articles of impeachment drafted against Richard Nixon.
Democrats must immediately seize this issue and make it the epicenter of a seismic confrontation
between branches of government.
Instead of trying to wound Trump with a thousand needle pricks as dozens of
cases work through lower courts, Pelosi
should pick a small number of cases that most clearly illustrate “obstruction
of oversight,” and demand an immediate, expedited review by the Supreme Court.
Major
court battles are not contested over a “pattern of behavior.” They are decided
in the context of specific incidents.
Therefore, the goal must be to focus legal scrutiny and the judicial system on a
small number of the most significant acts of Executive branch defiance, and demand
that the Supreme Court take immediate action on those specific cases.
We’d
submit that there are the two cases that are most threatening to Donald Trump: the
Congressional demand that the IRS release his taxes to a House committee and the
subpoena requiring former White House Counsel Don McGahn to testify in public. Each
meets two vitally important criteria: the case law and legal precedent in each
appears to be on the side of Pelosi, and each could damage Trump very badly.
Public disclosure of taxes could open a can of worms related to tax evasion,
improper business dealings, and reveal his lack of real wealth. And simply
having McGahn repeat the allegations of obstruction of justice that he has
already sworn to in the Mueller Report -- out loud, under oath, on national
television -- could be devastating to Trump and cause public opinion to finally
shift on whether Barr had accurately summarized Mueller’s findings.
Pelosi
must pick these two cases out from all the others, and elevate them symbols of
the broader issue of Congress’s right to conduct oversight. And there is a clear
way to achieve this: Pelosi should make a
formal request for an expedited ruling from the Supreme Court on these matters.
If these legal cases simply go through the Federal court system of litigation,
rulings, and appeals, it is very likely that Donald Trump could simply “run out
the clock” and make it to November, 2020 without a single case being decided.
There
is a very specific precedent for an “expedited ruling” from the Supreme Court.
When Richard Nixon fought Archibald Cox’s subpoena of the Watergate tapes, the
Supreme Court agreed to immediately rule on the matter, bypassing all lower courts. It was argued before the court, determined, and announced
within three months.
Yes,
it is extremely rare that this step is taken. There is no guarantee that if an
expedited ruling is requested that it will be granted. But the Supreme Court
has the power to bypass lower courts if it is convinced that the issue is
vitally important to the nation, and that there is an urgent need for a rapid
ruling. Clearly, with impeachable offenses facing Richard Nixon, the 1974 court
felt compelled to act immediately. The Supreme Court had ample ground for
believing that those tapes held incrimination information that would be
devastating to Nixon, to his popular support, and to his ability to govern. A
rapid ruling was vital.
Today,
the Democrats must argue that the urgency for an expedited ruling is based on
Donald Trump’s overt efforts to trample legitimate Congressional oversight. The
Democrats should cite as precedent that the articles of impeachment that were
drafted in the case of Richard Nixon included a clause specifically on Nixon’s
refusal to comply with a Congressional subpoena. The Democrats can use this
argument to draw a legal parallel between the two cases: the Supreme Court
agreed to an expedited ruling then because Nixon was attempting to obstruct
Congress’s right to oversight into potential criminal behavior on the part of
the President. The case of United States v. Trump would be the exact
same issue as was United States v. Nixon.
If the
Democrats were to succeed in getting an expedited ruling on these cases from
the Supreme Court, then Trump’s plan to “run out the clock until 2020”
vanishes. It would be a game-changer.
But
would the Democrats be able to get the expedited review?
Let’s
assume that the four conservative justices will stick with Trump and refuse the
expedited review, and that the four predictable liberals will vote for it.
That
means that Chief Justice John Roberts will decide whether the court would
undertake an expedited review. We think that the odds are actually good that
Roberts would break with his conservative brethren and agree to the expedited
review.
Chief
Justice John Roberts is a conservative judge, to be sure. But Roberts is a
fierce defender of the courts and the separation of powers. He publicly condemned Trump when the President attempted to claim that judges who ruled against him were politically motivated. "We do not have Obama judges or Trump judges, Bush judges or Clinton
judges. What we have is an extraordinary
group of dedicated judges doing their level best to do equal right to
those appearing before them."
Moreover,
Supreme Court observers have noted that Roberts is likely to be very sensitive
to public perception that the Court – with two newly minted justices
hand-picked by Trump – is simply doing Trump’s bidding. Mindful of preserving the
perception of the Court’s independence and integrity, Roberts could very likely
agree that an expedited review is in order.
Following
the logic, it’s very plausible Roberts will also take the side of the liberal
judges on each of the specific matters taken under review… for pretty much for
the same reasons. In both the case of Trump’s taxes and McGahn’s testimony, Congress
has the full and legitimate authority to make the request. They are pure and
simple instances of Congress asserting its Constitutional role and right of
oversight.
If
Roberts were to tip the court’s rulings in favor of the Congress, Trump would
be faced with a momentous choice: does he release his taxes and allow McGahn to
testify, or does he raise the stakes even further and openly defy the Supreme
Court? For reasons that puzzle us all, Trump appears truly terrified of releasing
his taxes… which could cause him to consider defying the Supreme Court. And Trump
is no dummy… he knows that McGahn’s public testimony is the one thing that could
actually re-open the Mueller Report.
If
he accepts the Court’s ruling, the unraveling of the Barr narrative begins.
McGahn makes clear to the country that he believed – and told Robert Mueller –
that Donald Trump was obstructing
justice, Barr’s conclusions are put squarely on the table, and the Mueller
Report is re-introduced into discussion. Pelosi can act, citing both “obstruction
of justice” and “obstruction of oversight” in her articles of impeachment.
If Trump
attempts to defy the Supreme Court ruling, it is actually conceivable that
Nancy Pelosi could achieve her dream of enlisting some Republican calls for
impeachment. At the very least, she knows that if Donald Trump attempts to
disregard the legitimate constitutional authority of both Congress and the
Supreme Court, she finally has the leverage to wage a war for impeachment in
the court of public opinion.
Perhaps
most important: with an “expedited ruling” by the Supreme Court, all of this
could happen within months… preventing Donald Trump from “running out the
clock” until 2020.
Here
is the kicker: if the Dems are in a position to launch this impeachment in the
fall, they can control the pace of the inquiry, the public testimony, and
ensure that Donald Trump’s catalogue of misdeeds is put into the public arena,
drip by drip, day by day for 2020, all leading up to the election.
Perhaps
Speaker Pelosi will control timing so that the House passes articles of
impeachment just weeks away from the 2020 election… with no time for the actual
Senate trial before the election. So, on election day, Trump will have been
impeached, but not acquitted. He will not have his moment of exoneration.
Sure,
we know… it’s all just game theory, and a thousand things could happen between
now and election day, 2020, to shift the course of history dozens more times.
And if John Roberts were to rule in the other direction on these cases, then
Pelosi may opt to abandon the possibility of impeachment and focus wholly on
removing Trump in the 2020 election.
But
if Roberts were to support expedited reviews, this plan would navigate all the
competing goals… it would achieve Pelosi’s goal of not prematurely moving to
impeachment, as it would take that step until the Supreme Court had tacitly
endorsed the legitimacy of Congressional investigation. And yet it would also
stand to satisfy the voices in Congress who are ready to impeach now, as the
entire plan would take only three or four months to reach closure.
Best
of all, it would pull all of the stature, muscle, and authority of the Supreme
Court onto the side of Congress and against Donald Trump’s executive branch.
Think
about it, Nancy.
Right
now no one knows whether you actually have a plan to deal with impeachment, or
if you are just winging it one day to the next, or slow-walking it as you try
to run out the clock in your own way.
But
you should know one thing: your caucus is moving. Every single day, minds are
changing.
It
is time to get out in front of this and lead.
We
gave you our plan.
What’s
yours?
BTRTN thanks our friend Gary for helping us
sort through the issue of how, when, and why the Supreme Court grants “expedited
reviews.”
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