The hardball constitutional crisis has arrived

The dome of the Capitol is seen at sunrise in Washington, Thursday, April 18, 2019. (Cliff Owen/AP Photo)

The dome of the Capitol is seen at sunrise in Washington, Thursday, April 18, 2019. (Cliff Owen/AP Photo)

The hardball constitutional crisis that many of us have long dreaded — the historic stress test that many of us have long predicted — is finally front and center. Consider these dire developments:

Donald Trump vows to fight “all subpoenas” from Congress, which, last I checked, is a co-equal branch of government. He’s seeking to stop current and former officials, including ex-White House counsel Donald McGahn and (as of this weekend) special counsel Robert Mueller, from testifying about his potentially impeachable behavior. He’s suing to stop his bankers from sharing subpoenaed business records. His Treasury Secretary Steve Mnuchin, who’s supposed to work for us, is defying a longstanding law that clearly requires him to share Trump’s tax returns with the House Ways and Means Committee, which has every right to see them. And his attorney general, who’s supposed to work for us, has refused to appear in front of the House Judiciary Committee; has refused to share the un-redacted Mueller report; and, with his Cliff Notes summary, has flagrantly sought to whitewash the substance of that report, after admitting last week that he never read the underlying evidence that detailed multiple obstructions of justice.

And since we’re talking about William Barr, what’s arguably worst is his advocacy of an all-powerful imperial presidency. When he deigned to testify last Wednesday in front of the Senate Judiciary Committee, he contended that if a president under investigation sincerely believed that the accusations against him were false, “and he felt that this investigation was unfair, propelled by his political opponents, and was hampering his ability to govern, that is not a corrupt motive for replacing an independent counsel.”

If you don’t speak the Barrwellian language, permit me to translate: A president can summarily shut down any investigation that he doesn’t like. A president needs merely to believe that a probe is unfair (every president thinks he’s innocent) and that a probe is politically motivated (every president can easily convince himself that partisan opponents are out to get him), then presto! – end of probe. Barr’s servility jibes with his longstanding belief in unchecked presidential power. As Michael Gerson, one of our sane conservative commentators, remarked the other day, “Trump has finally found someone who licks his boots on principle.”

This brass-knuckled president is veritably daring Congress to impeach him; indeed, in 1974, the third article of impeachment against Richard Nixon assailed him for “failing to produce papers and things as directed by duly authorized subpoenas.” If Congress — specifically, the Democratic House, backs down from Trump’s frontal confrontation, constitutional democracy will truly be imperiled. Max Boot, another sane conservative commentator and former Republican foreign policy adviser, fears that “for the next 18 months, at minimum, this nation is at the mercy of a criminal administration,” and that Trump “will now feel emboldened to commit ever-greater transgressions to hold onto power.”

But, in the short run, absent the inevitably lengthy court fights, how effectively can Congress fight back? Not very well.

It can hold Trump’s hirelings in contempt — the House Judiciary Committee plans to hold Barr in contempt, now that he has skipped this morning’s deadline to produce the un-redacted report — but it lacks sufficient enforcement power. Theoretically, it can enlist the Department of Justice to criminally prosecute someone who’s found to be in contempt of Congress, but, to borrow a word from Barr, this DOJ is Trump’s “baby.” The other option is to file a civil complaint in federal court, and hope that a judge orders Barr to comply. But that process could drag on for a long time.

All of which is a shame, because, as former U.S. attorney (and former anti-Clinton Whitewater investigator) Kim Wehle points out, “congressional investigations operate as a check against abuses of power or corruption in the White House — whether or not certain actions amount to violations of the criminal laws. If a sitting president cannot be indicted pursuant to DOJ policy, congressional oversight is the only way to identify and enforce boundaries around the massive institutional power of the U.S. presidency.”

That oversight would surely be enhanced by Robert Mueller’s testimony, but even though Trump claims that Mueller found “no collusion” and “no obstruction,” he clearly fears the possibility that Mueller would fail to confirm the presidential spin.

So, as we creep ever closer to the precipice, what’s the most feasible, effective course of action for the Democrats?

Answer: Walking and chewing gum at the same time. Pushing as hard as possible on the congressional accountability front, while talking about issues on the campaign trail. Flood the zone, just as Trump does every day.

For starters, House Democrats can flex their legislative leverage. Trump supposedly wants an infrastructure package and a drug prescription bill? Trump needs the House to help fund the government and raise the debt ceiling? Give him nothing unless his regime agrees to honor subpoenas and produce documents. Make him pay a political price for stonewalling Congress on its constitutional oversight role.

And while the House is doing its duty, the presidential candidates on the trail have the rhetorical flexibility to talk about Trump’s unprecedented perfidies while also pitching on policy. Several are doing this already. It’s not difficult. Elizabeth Warren has endorsed impeachment and she’s deep in the weeds on taxing the rich. Joe Biden is targeting Trump’s authoritarian instincts and he’s talking up a $15 minimum wage along with a public option for government health care.

Ultimately, this will be a historic battle for public opinion. Republicans, by dint of their sick sycophancy to Trump, have defaulted on America’s enduring values. Democrats have no choice but to carry that torch on all fronts. The road to the 2020 election may be rough, but, in the inspirational words of Doris Lessing, the late author and Nobel Prize winner, “Whatever you’re meant to do, do it now. The conditions are always impossible.”

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