If Senate Republicans don’t check Trump administration misconduct, they effectively endorse it.
Traveling Wednesday kept me from listening to all but the first couple of hours of Todd Blanche’s confirmation hearing in the Senate on his nomination to be attorney general. (He is of course the current acting AG, as well as the Senate-confirmed deputy AG.) That was long enough to be pleasantly surprised that Blanche handled reasonably well one of the questions I anticipated in Tuesday’s post, to wit: whether the 22nd Amendment precludes President Trump from seeking a third term in 2028.
The question was asked by Senator Chris Coons (D., Del.) — unsurprisingly so given that it was Senator Coons who put the question to Trump judicial nominees at a recent hearing, only to have them dodge it — which was bracing in light of the amendment’s clarity and the obligation of judges to apply the law as written.
On the matter of whether the president is eligible to run again, Blanche replied, “I don’t believe he is, no.” Blanche added, on prompting by Coons, that he had “no idea” why the judicial nominees were so reluctant to state the obvious. I suspect he has a very good idea; still, he gave the right answer when his own assessment was sought, and that’s progress.
If Blanche was asked the other question I expected — i.e., whether Joe Biden won the 2020 presidential election — I didn’t hear it. I’d be surprised if the Democrats refrained from asking, but Blanche’s answer would have been newsworthy either way, yet I haven’t seen anything about this topic in the reporting.
Jay Clayton was not as fortunate. I didn’t hear live any of the confirmation hearing on his nomination to become national intelligence director. But his exchange with Senator Jon Ossoff (D., Ga.) on the 2020 question has been widely reported. It was depressing to hear, at least if you served as a prosecutor for nearly 20 years in the Southern District of New York (SDNY) where Clayton has for months been the Senate-confirmed United States attorney. (To my mind, Clayton is leaving one of the best jobs in the federal government to take one of the most pointless. De gustibus, etc., etc.)
Senator Ossoff asked, “Who won the 2020 election?” Clayton, who prior to giving an opening statement had assured Chairman Tom Cotton (R., Ark.) that he’d be a model of cooperation in dealing with members from both parties, refused to answer Ossoff. “I’m not going to do this with you,” was Clayton’s arrogant retort — as if he were in a position to dictate what questions he’d entertain. As if the problem here is that Democrats keep asking a question that makes Trump nominees squirm, rather than that the nominees are squirming because President Trump not only clings to the baseless claim that he won an election he lost but further compels his nominees to go along with the charade or lose their appointments to these coveted government posts.
This dance was repeated several times, Ossoff trying to shame and goad Clayton into responding to the simple question, Clayton obstinately refusing to answer (or nonsensically insisting that his refusal to answer was itself an answer). I wonder if the nominee knew that, in his ballyhooed election interference speech the following evening, even Trump would not claim the 2020 election was stolen from him. (The president did a lot of huffing and puffing about what China may have had capabilities to do, and about whether U.S. intelligence agencies soft-pedaled those capabilities in reports to him during the final months of his first term; but, six years later, still no evidence of actual election manipulation. See our Brittany Bernstein’s excellent report on the president’s speech.)
I believe I worked for eight U.S. attorneys (four confirmed and four acting) in my SDNY tenure. What rankles, and what Jay Clayton had to know as the words were coming out of his mouth, is that none of them, Clayton included, would accept from a witness at a formal proceeding non-responses of the kind Clayton gave. If, say, in the grand jury, a witness tried to get away with what Clayton did, and remained intransigent as Clayton did despite numerous opportunities to correct this misconduct, the U.S. attorney would have the witness indicted for obstruction. (And interestingly, I did hear Todd Blanche tell the Judiciary Committee that the Justice Department takes obstruction of congressional hearings quite seriously . . . which was a useful reminder that the Trump Justice Department previously indicted one of the president’s political enemies, James Comey, on a preposterous charge of dishonest congressional testimony, which was ultimately thrown out.)
Clayton had no legal privilege to refuse to answer Ossoff’s question. Trump devotees indignantly blame the Democrats for elevating political theater over material inquiry (as if Republicans did not play the same game in asking Democratic nominees to defend their party’s trans lunacy — e.g., grilling now-Justice Ketanji Brown Jackson on what a woman is). Nevertheless, there is no doubt the question was material and that any judge would permit it under the admissibility rules that apply at trials.
Clayton wants to be DNI. Vital to that job is the capacity to assimilate reality accurately, to marshal facts if it’s necessary to dispel a common misconception, to be able to convincingly deliver unwelcome news to the president, and to be candid with Congress — which created and funds the ODNI. The Senate Intelligence Committee (like its House counterpart) also has a special obligation to conduct thorough oversight of intelligence agencies; their operations cannot be publicly revealed if they are to serve national security, so our only check on whether these awesome powers are being used lawfully and responsibly is Congress.
If Clayton cannot say that Biden won the 2020 election, he owes the American people a cogent explanation of his rationale for doubting that proposition. If he can’t bring himself to do that, then, despite his stellar qualifications, he shouldn’t be DNI — or, for that matter, be the U.S. attorney in Manhattan.
Of course, we know the score here — just like we well know that Justice Jackson knows what a woman is.
If Clayton had a good reason to refrain from conceding that Biden won, few people would be able to articulate it as compellingly as he could. Obviously, he refuses to engage because he realizes his reasoning is indefensible — he’d rather be criticized for intransigence than for lying. Withholding the concession that Biden won in 2020 is a condition of his appointment. I’m in no position to say whether it’s an explicit of implicit condition; someone as savvy as Clayton would not need to be told, but Trump is not subtle. What we can confidently say is that if Clayton had admitted that Biden beat Trump, the president would be incensed and Clayton’s nomination would be withdrawn. (It’s inconceivable that this question did not come up in Clayton’s hearing prep; Clayton had to know what was expected of him, and the White House had to know he would handle the question by not answering it.)
Personally, were I a senator, I would not vote to confirm any nominee who refused to answer Ossoff’s question. And while I admire Clayton’s acumen, I would have not an iota of regret about voting against a nominee whose intransigence was as performative as his — when no one knows better than he does that it is he, not Ossoff, who was in the wrong.
More disturbing is what’s happened to congressional Republicans. They used to at least pose as the party of constitutional fidelity who understood that Congress is our governing framework’s most vital institution, that it has a duty to check executive malfeasance and thus to assert and preserve its own prerogatives. That’s gone now.
GOP sympathizers, and Capitol Hill Republicans themselves when they’re off the record, earnestly assure us that this is all just temporary — they are doing what they need to do in this zany era of a lawless, norm-busting president who is deeply unpopular nationally (i.e., he is apt to cost them their jobs come election time) but prohibitively popular in the GOP he has taken over (i.e., if they protest over this or that embarrassing episode, they will join the swelling ranks of colleagues whose careers ended when Trump vindictively rallied his base against them). But on the record, when the cameras are rolling, they say, “Let’s be pragmatic here. Trump is going to be Trump, there’s no changing him. So forget all that claptrap about Congress’s constitutional duty; net-net, aren’t we better off with appointees like Clayton and Blanche? Sure, they’ll put up with some stuff that shouldn’t happen but, behind the scenes, they may be able to pump the brakes on some of the worst excesses, and otherwise will run their agencies well.”
I get it. I suppose we all do. But it can’t change two immutable facts. First, Congress is obligated to confront executive abuses of power and, if the president’s party is derelict in that duty, then it is effectively endorsing the abuses. Second, Republicans can’t mothball Congress’s prerogatives; if they won’t object now, no one will give them the time of day when the next Democratic president, egged on by the increasingly hard-left base, runs wild.