On Friday, the House impeachment managers conclude the presentation of their case by focusing on the president’s alleged obstruction of the House investigation. This claim (Article of Impeachment II) has not gotten the degree of attention given the Ukraine abuse-of-power caper (Article I). Though overblown, the obstruction allegation could gain some traction thanks to the president’s defense. The assertion that Trump has been impeached merely for going to court involves some sleight-of-hand, over which his defense team is likely to get clobbered.
In a nutshell, the Trump team claims that it is outrageous for Democrats to condemn the president for obstruction because they failed to go to court first. The House, they publicly insist, should have tried to litigate what are, undeniably, weighty issues of executive privilege. They point to Charles Kupperman, the president’s former deputy national-security adviser, whom Democrats initially subpoenaed, only to drop the subpoena, quite tactically, when Kupperman went to court for a ruling on whether the president’s privilege of confidential communications with his top advisers gave him immunity from testifying. Kupperman’s case was being watched from the sidelines by his former boss, John Bolton, as well as White House chief of staff Mick Mulvaney. Simultaneously, former White House counsel Don McGahn was already fighting the House Judiciary Committee in a lawsuit unrelated to Ukraine; he was subpoenaed regarding obstruction issues in the Mueller probe.
The McGahn case is now on appeal, a lower court having ordered that he has to show up to testify, but punting on the more important question of whether he has to answer questions. But there is no Kupperman case. Rather than litigate that subpoena, House Democrats vacated it, concurrently dropping their demand for testimony from Bolton and Mulvaney.
The president’s team persuasively argues that Democrats did this for two reasons. First, their impeachment case is driven by electoral politics, not real misconduct; litigating the subpoena would have taken too long, undermining the Democrats’ goal of impeaching Trump by Christmas, in time to exploit it in the 2020 campaign. Second, Democrats might well have lost in court, which would have undermined the allegation that the president is obstructing the investigation. Strategically, since Democrats control the House but not the courts, it was preferable simply to vote an article of impeachment charging obstruction than to risk delay and defeat in litigation.
There is just one problem with the president’s argument about how the Democrats are playing tactical games: The president’s team is playing tactical games, too.
In fact, while they chide Democrats for “impeaching the president for going to court” — which certainly sounds Kafkaesque — what the president’s supporters don’t tell you is that the Trump administration actually agrees with Democrats that courts need not be consulted in a dispute between the political branches. That is, the president’s team publicly says the Democrats should have gone to court to seek testimony, particularly from Bolton and Mulvaney, whom they now want to subpoena for the Senate impeachment trial. But, as we’ve seen in the McGahn case, when Democrats do go to court, the president argues that this is none of the court’s business.
Now, don’t get me wrong. I happen to believe the position the Trump administration is taking in court is correct, albeit unpopular (Americans having been conditioned to believe that we are less a democracy than a juristocracy, in which nothing is legitimately decided until the courts weigh in). Longtime readers may recall my years of scoffing at the notion that the Article I branch must go hat in hand to the Article III branch to pry information from the Article II branch. The Framers would have thought that preposterous. They made Congress the most powerful branch, giving it many tools to bring the president to heel. The executive branch was similarly armed to resist congressional overreach. The federal courts, by contrast, were conceived as comparatively weak.
Here, we come to the principal flaw in the impeachment case and the debates around it: gross overreach.
One of the weapons the Framers gave Congress is the impeachment power. Indeed, while the president’s counsel bleat about how House Democrats should have gone to court to seek testimony from executive officials, the administration argues in court that judges should stay their hand because Congress has its own arsenal to compel compliance. The Justice Department concedes, ever so gingerly under the circumstances, that this arsenal includes the impeachment power. Democrats now treat this admission as if it were a smoking gun — expect to hear a lot about it from Adam Schiff & Co.
But Democrats are skipping over the inconvenient point: Impeachment was to be the ultimate weapon, not the weapon of first resort.
The Framers assumed that all constitutional actors would abuse their powers, not just the president. The president would exploit his Article II authority for personal political gain, but the Congress would pass unconstitutional laws and ignore the privileges of the other branches. There is no need for courts to referee these disputes over congressional demands for executive branch information; they are supposed to get worked out by negotiation and accommodation. This is not sweetness and light; there’s plenty of hardball. Nevertheless, Congress doesn’t start with impeachment, or go to it in the early rounds; it is the nuclear option after other pressure points have been exhausted.
Congress could, for example, cut off funding for the president’s policy priorities if the administration stonewalls. It could coerce some disclosure by refusing to take up matters the president wants enacted in an election year (e.g., the new treaty with Canada and Mexico). It could refuse to confirm judges and high executive officials until the president surrenders documents. It could even hold in contempt and eventually impeach top officials subordinate to the president. Do you suppose the administration would have refused all compliance with demands for State Department documents if the House had, say, commenced proceedings to censure or impeach Secretary of State Mike Pompeo? I’m betting that would have gotten their attention. And it would have been less draconian than impeaching the duly elected president of the United States ten months before Election Day.
Even if you believe, as I do, that Congress need not go to court to compel compliance with its subpoenas, we can still acknowledge that it is overwrought for the House, on the Ukraine facts, to impeach the president for obstruction. I do not believe the court should entertain such lawsuits, especially when the president and Congress both say (when it is expedient for them) that the courts should butt out. But in modern times, courts have been more receptive to entering the fray. If we’re going to do something we shouldn’t do, it would be less disruptive to the country for the House to litigate information demands than to impeach prematurely. After all, the House is litigating the McGahn subpoena; it has not impeached the president over that.
By contrast, it is also easy to imagine situations in which Congress would be well within its rights to impeach the president for contemptuously ignoring its subpoenas. In a case of clear, serious criminal conduct, for example, if a president refused to turn over material evidence — e.g., if Nixon had destroyed rather than surrendered the tapes — that would warrant impeachment.
The problem with the Ukraine impeachment is the melodrama. The president’s defenders lecture Democrats about allowing the president to vindicate his prerogatives in court, but then the president’s Justice Department tells the court that judges have no business intervening. Democrats say that leaves them no alternative but impeachment, but that’s ridiculous. They have impeached the president on a political timeline, ignoring at least a dozen steps they could have taken to compel disclosure without going to DEFCON 1.