Roll Call contacted 23 of the 24 Democratic members of the House Judiciary Committee and asked them where they currently stand on impeachment. They ascertained Rep. Eric Swalwell of California’s opinion by looking at his Twitter feed. By their calculation, a majority of these lawmakers believe that impeachment may be necessary if Trump doesn’t comply with their requests for documents and witness testimony.
Yet, few only a couple of exceptions, their responses are very on-message and carefully calibrated. They express extreme reluctance to talk about impeachment but refuse to take it off the table. They all seem to agree that Trump cannot defy them with impunity. Most of them are willing to say that impeachment might be forced on them if the administration continues on its current course. In this, they are following the lead of Speaker Nancy Pelosi.
As I’ve said, this is a politically savvy strategy but it might not be sustainable for long. The Democrats may need to shift into a different rhetorical scheme soon where they emphasize that simply opening an impeachment inquiry is not the same thing as making a decision to impeach the president. They’re going to want to have an open impeachment inquiry when they go to court because it will greatly bolster their position against the administration’s claim that their inquiries have “no legislative purpose.” The courts will be more inclined to back Congress’s unambiguous power of impeachment than their contested power to compel the Executive Branch to provide information.
The decision point may come faster than congressional Democrats were expecting because the administration has just issued a major challenge to their oversight powers with a new legal opinion from the Department of Justice.
President Trump on Monday directed his former White House counsel, Donald F. McGahn II, to defy a congressional subpoena and skip a hearing scheduled for Tuesday, denying House Democrats testimony from one of the most important eyewitnesses to Mr. Trump’s attempts to obstruct the Russia investigation.
The House Judiciary Committee had subpoenaed Mr. McGahn to appear. The White House, though, presented Mr. McGahn and the committee with a 15-page legal opinion from the Justice Department stating that “Congress may not constitutionally compel the president’s senior advisers to testify about their official duties.”
“Because of this constitutional immunity, and in order to protect the prerogatives of the office of the presidency, the president has directed Mr. McGahn not to appear at the Committee’s scheduled hearing on Tuesday,” Pat A. Cipollone, the current White House counsel, wrote in a letter to the Judiciary Committee.
The next step would normally be to find Don McGahn in contempt and then take the case to a judge. They could conceivably lose that case if they don’t have a formal impeachment inquiry to point to as the rationale for needing McGahn’s testimony.
I’ve suggested that they take a hard look at arresting McGahn and holding him over for a trial in the House, but this is mainly because it would defeat the stalling effect and tip the country straight to full constitutional crisis mode. I don’t expect the House Democrats to take my advice, especially after looking at how tepidly they responded to Roll Call.
However, I also don’t believe they can avoid facing up to the realities I described for much longer. It’s good for them to position themselves as the most reluctant of prosecutors, but the window for positioning is rapidly closing. They are soon going to have to make hard decisions, whether they’re comfortable making them or not.