Friday, May 24, 2019

BTRTN: Do Dems Dare to Impeach? Nancy, Here's a Plan the Party Can Unite Behind

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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