President Donald Trump has effectively declared war against the legislative branch and announced that his administration is not going to honor subpoenas. He apparently will raise spurious excuses to keep current and former officials from embarrassing the president by testifying under oath to his wrongdoing. (Presumably this means he plans to defy all of them relating to investigation of possibly impeachable offenses.)
Objecting to every request on the grounds that Congress is "partisan" is legally laughable and reflects his unwillingness to "take care" that the laws are faithfully executed. "We're fighting all the subpoenas. These aren't, like, impartial people," Trump said. "The Democrats are trying to win 2020." Well, duh. That, however, doesn't make their subpoenas any less enforceable.
Trump is delaying, thrashing about and trying to run out the clock — conduct that someone who has been “exonerated” would have no need to engage in.
The Washington Post reports, “Trump’s decision not to cooperate with House committees, coupled with reluctance from Republicans in control of the Senate to cross him, has left Congress struggling to assert itself as a coequal branch of government — most likely leaving it to the courts to settle a series of power struggles that could define the relationship between the executive and legislative branches for years to come.”
While some pundits suggest that Trump is forcing the House to resort to impeachment, we're still a long way from that option. As others have noted, a finding of criminal contempt might be of no value, since the Trump-appointed U.S. attorney for the District of Columbia is not going to go to court to enforce a contempt finding. Although a civil contempt finding would allow Congress to go to court to impose fines on recalcitrant witnesses, it's not likely to result in a timely remedy nor make any difference to someone as rich as Treasury Secretary Steven Mnuchin.
If, however, Trump should try to defy a court ruling compelling the president to make witnesses and/or documents available, Democrats would be on firm political and legal ground moving to impeachment.
Congress has other options beyond running to court or moving on to impeaching Trump. The Above the Law blog's Elie Mystal suggests: "Steven Mnuchin is the Treasury Secretary and therefore the head of the IRS. ... He will be in violation of a Congressional order to remit six years of Donald Trump's tax returns for Congressional review. The law is clearly on Congress's side, and Mnuchin is violating that law in order to appease his master." The solution, if Mnuchin continues to refuse, is simple: "Congress should hold him in contempt tomorrow. The contempt can be a precursor to formal impeachment proceedings against Mnuchin for refusing to perform his duties as Treasury Secretary."
The same tactic is available should the Justice Department refuse to go to court to enforce a valid criminal contempt finding. In that case, impeachment against Attorney General William Barr, under whose direction the U.S. attorney would refuse to pursue a contempt finding in court, could proceed. (The House can throw into the mix his egregious politicization of the Justice Department and his attempt to mislead the public as to the contents of the Mueller report.)
While the Senate is no more likely to convict and remove Mnuchin and Barr than it is to convict and remove Trump, raising the personal price these officials will pay for enabling Trump's lawlessness will be key to disabling Trump's obstruction. Barr and Mnuchin can quit or go down as the first Cabinet officials to be impeached since William Belknap, President Ulysses Grant's former secretary of war, in 1876. The impeachment proceedings and trials of these officials will serve to educate the country as to the administration's lawlessness, even if these officials ultimately retain their jobs.
In sum, the House cannot allow Trump’s defiance to prevail. The House should fight Trump in the courts, and if need be, impeach his enablers. Perhaps along the way Republicans will come to see the unraveling of the presidency as detrimental to their own political future. If not joining in impeachment, they at least might start to get the idea that selecting him for a second term would be politically insane.
Jennifer Rubin | The Washington Post
Jennifer Rubin writes reported opinion for The Washington Post.