WASHINGTON ― With calls for impeachment growing in the House Democratic Caucus, Speaker Nancy Pelosi (D-Calif.) may finally have to escalate the standoff between Congress and the White House.
Pelosi has called a special meeting to brief her caucus Wednesday on the various efforts to oversee the Donald Trump administration, but it’s clear to many Democrats now that more ignored subpoenas and protracted court battles won’t resolve their issues anytime soon. Even though Pelosi has thus far resisted prodding from the most liberal Democrats to begin impeachment proceedings, she may soon have little choice but to move forward with an inquiry.
Such a move wouldn’t necessarily guarantee a vote in the House for impeachment, let alone an almost certainly doomed vote in the Senate. What an impeachment inquiry would do, however, is temporarily satiate those voices in the caucus calling for Trump’s removal. And it would give Democrats firmer standing for their subpoenas and requests to testify.
The Trump administration has argued it doesn’t have to comply with document demands for Trump’s tax returns or the unredacted report from special counsel Robert Mueller because Congress lacks a “legitimate legislative purpose” for those documents. The argument is legally tenuous already ― does the executive branch get to decide what is a legitimate legislative purpose? ― but it would be even harder for Trump’s lawyers to argue Congress can’t have these documents if they were in an impeachment stance.
That’s been the argument of some Democrats for weeks now. With voters continuing to call for Pelosi and House Democrats to move forward with impeachment, and with the Trump administration once again refusing to cooperate with investigations, opening an inquiry may be the new middle-of-the-road approach.
Democrats are at least considering it.
Close Pelosi ally Rep. Anna Eshoo (D-Calif.) hasn’t made up her mind on impeachment, but she said Tuesday that the meeting this week would be an opportunity to hear the arguments in favor of beginning impeachment proceedings.
“I think he’s definitely committed impeachable offenses. The question is how do we proceed to follow up on all of the misdeeds we’ve seen,” Eshoo said. “And I think the American people also do need to understand how damning the Mueller report was.”
Another Pelosi ally, Rep. Jared Huffman (D-Calif.), told HuffPost Tuesday that he thought 80 percent of the Democratic caucus would support moving forward with an impeachment inquiry, though he was careful to note how that was different from supporting impeachment.
“On the parts of the caucus that I have visibility into, this thing is fully ripe,” Huffman said. “But obviously there are layers to our caucus.”
Huffman said it was all right that Democratic leadership had thus far shown reluctance with impeachment. “This is an extraordinary thing, and there may be some value in the American people correctly perceiving that reluctance. But there’s a slippery slope between reluctance and endless dithering.”
While Pelosi has been unenthusiastic about moving forward with impeachment ― opting instead for more investigations ― the Trump administration’s refusal to comply with congressional oversight has put her in a position where she may soon have no choice but to ratchet up the pressure.
On Tuesday, former White House counsel Don McGahn declined to comply with a House Judiciary Committee subpoena to testify. McGahn is a key witness to Trump’s obstruction of justice, as the president instructed him to fire Mueller and then told him to lie about those orders. But the White House has claimed executive privilege over McGahn’s testimony. Coupled with Attorney General William Barr’s refusal to testify or furnish an unredacted copy of the Mueller report and the underlying evidence, the ignored subpoenas are severely testing the tolerance of Democrats.
The Mueller report documented 10 instances where the president potentially interfered with the investigation, which is obstruction of justice, a factor in the impeachment proceedings against both Richard Nixon and Bill Clinton.
Four members of the Judiciary Committee, which would host any impeachment hearings, backed an impeachment inquiry as McGahn failed to comply with their subpoena.
“Congress has patiently tried to work within traditional means to get to the bottom of this extraordinary situation,” Rep. Mary Gay Scanlon (D-Penn.), the committee’s vice chair, said in a statement. “But, we have reached an inflection point. The President’s refusal to produce evidence or permit written testimony defies not only the rule of law but the basic protections of our Constitution.”
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The dam for impeachment seems to be breaking in the Judiciary Committee. One-third of the committee’s Democratic majority now supports opening an inquiry into impeaching the president.
Reps. Pramila Jayapal (D-Wash.), David Cicilline (D-R.I.) and Veronica Escobar (D-Texas) joined Scanlon as Judiciary Committee members endorsing an impeachment inquiry Tuesday after McGahn refused to testify. Rep. Ted Lieu (D-Calif.), another committee member, previously stated his support for opening an impeachment inquiry if McGahn failed to testify. And Reps. Jamie Raskin (D-Md.), Joe Neguse (D-Colo.), Steve Cohen (D-Tenn.) and Val Demings (D-Fla.) ― all Judiciary members ― had already called for Congress to open an impeachment inquiry into the president’s actions.
Rank-and-file Democrats are also increasingly coming out to support an impeachment inquiry including Rep. Mark Pocan (D-Wisc.), the co-chair of the Congressional Progressive Caucus, and Rep. Joaquin Castro (D-Texas). Some Democratic leaders pushed Pelosi to move forward with impeachment behind closed doors on Monday. And over the weekend, Rep. Justin Amash (R-Mich.) became the first Republican to support an impeachment inquiry.
As the pressure builds on impeachment, the Judiciary Committee is moving to enforce its subpoenas and penalize those who violate them.
Traditionally, the next step in the oversight process would be to hold officials in contempt with a vote on the House floor. From there, the House would try to enforce its subpoenas by referring the uncooperative officials to the Justice Department for prosecution or filing a lawsuit in federal court. The problem with that strategy is the Trump administration can simply decline to prosecute its own officials, and the court battles could take years.
Still, opening impeachment proceedings isn’t inevitable, and Pelosi could stall such a move longer by more promises of investigation.
So hesitant is Pelosi to move forward with an impeachment inquiry that she reportedly instructed Judiciary Chairman Jerry Nadler (D-N.Y.) to not even bring up the notion of proceeding with impeachment at the Tuesday hearing where McGahn was supposed to testify.
An open secret in the Democratic caucus is there aren’t currently 218 votes to impeach Trump in the House, even if Pelosi put the matter on the floor. There are plenty of Democrats who agree with Pelosi that moving forward with impeachment would overshadow the other legislative issues Democrats want to accomplish. And many think Pelosi has deftly navigated the impeachment issue by calling for more investigations.
“There is all sorts of other stuff out there,” House Budget Committee chair John Yarmuth (D-Ky.) said Tuesday. “His financial dealings, the emoluments clause ― there’s a whole list of them and that’s why I think the speaker’s right that these investigations should go on.”
Democrats have also been talking up other ways of forcing the administration to cooperate, such as reviving the so-called “inherent contempt” power that Congress used in its earlier years to jail officials for withholding information. Some lawmakers have said they should use inherent contempt to impose fines.
“If inherent contempt is not to be used and no other meaningful action is taken, then impeachment is the only alternative,” Rep. Lloyd Doggett (D-Texas) told HuffPost on Tuesday. Doggett said he’s been sharing articles about the concept with other Democrats so they become more comfortable with it.
The Congressional Progressive Caucus met Tuesday and discussed different mechanisms for opening an impeachment inquiry. Members believe there are potentially three ways to do it. Pelosi could open an inquiry, the full House could vote on a resolution, or just the Judiciary Committee could vote to open the inquiry.
All of those options seem on the table. Judiciary Committee member Sheila Jackson Lee (D-Texas) said Tuesday that she would offer a “resolution of investigation” this week, which would be like a not-quite-impeachment form of oversight that could ultimately result in impeachment.
“We will do something like what was done by the Senate with hearings, investigation during Nixon,” Jackson Lee said. “Then the smoking gun comes, the tapes, and the American public begins to move toward the impeachment concept.”
This has been updated.