Yeomans Work

House — Exhausted from Threatening Oversight — Needs Another Recess

May 28, 2019

The House greeted the release of the redacted Mueller report by taking a 10-day recess.  After returning for several weeks of name-calling between the Speaker and the President, the issuance of a bunch of subpoenas, threats of contempt, and two court victories, the House ran out of gas and headed off for another 10-day recess.  While Speaker Nancy Pelosi jockeyed to hold the growing impeachment caucus at bay, the House failed to hold a single substantive hearing on the Mueller Report or even to secure a date to hear from Mueller.  Don McGahn bowed to Trump’s demand that he blow off the House Judiciary Committee’s (HJC) subpoena — so far, without consequence.  While Pelosi oversaw implementation of her plan to delay impeachment through slow-moving, diffuse oversight, the urgency of moving to impeachment only increased.

Trump handed Pelosi the high ground by announcing that he would not even discuss legislation until the House ceased its investigations.  The absurdity of that position affirmed the accuracy of Pelosi’s claim that Trump was engaged in a coverup. Indeed, Trump’s conduct in office – from his refusal to submit to an interview by Mueller to his refusal to release his tax returns to his lawsuits to conceal his financial dealings to his instruction to his administration to reject every subpoena – is the very definition of a coverup.

Trump’s across-the-board assertion that Congress is not entitled to information unless it has a specific legislative purpose is nonsense that – as two federal district courts demonstrated last week – can be rejected handily.  But this round of witness resistance – the refusal to appear – is only the first line of defense.  Even after witnesses are ordered to appear, they will have the opportunity to assert more refined objections to specific questions.  Expect witnesses to refuse to answer based on executive privilege and the Fifth Amendment, as well as assertions that information is classified or protected by grand jury secrecy.  Forcing witnesses to respond can require another time-consuming round of contempt and lawsuits.

In the first subpoena lawsuit decided against Trump, Judge Mehta of the D.C. District Court ruled broadly in favor of Congress and refused to stay his order beyond the seven days he allowed for Trump to appeal.  Had Congress been willing to gamble, the controversy might have been resolved in a matter of weeks.  If both the D.C. Circuit and the Supreme Court had refused to stay Judge Mehta’s order, Trump’s accounting firm would have had to produce extensive documents regarding Trump’s finances.  Rather than gamble, Congress entered into an agreement with Trump to stay the order and expedite the appeal.  Even so, argument will not be held until July 21, after which the court will deliberate and issue an opinion in the fall.

Despite Chief Justice Roberts’s assurance that we don’t have Clinton judges, Obama judges, or Trump judges, we do indeed have one of each on the D.C. Circuit panel: Judges Tatel, Millett, and Rao.  It’s a better than safe bet that Tatel and Millett will decide for Congress.  The case will pose an interesting and revealing test for Judge Rao, whose controversial and very conservative writings (not to mention her failure to endorse Brown v. Bd. of Education at her confirmation hearing) should have disqualified her from sitting on the nation’s second highest court.  Trump’s case borders on the frivolous.  Will she have the independence to rule against him and his unlimited view of presidential power?

Doubtless, Trump will ask the Supreme Court to review his loss in the D.C. Circuit.  While all bets are off when it comes to Justices Thomas, Alito, and Gorsuch, both the Chief Justice and Justice Kavanaugh should recognize the toxicity of throwing the Court into this political cauldron.  Even the Court’s decision not to take the case, however, could run into 2020.

Meanwhile, the HJC is still waiting for Mueller.  The Democratic mantra during the 2018 election campaign was to wait for the Mueller report.  When the report was delivered, the House announced its wait for the unredacted report and then for Mueller’s testimony.  Waiting for Mueller has become a paralyzing syndrome.  As Trump and Barr have lied repeatedly about the contents of the report, members of Congress have waited.  After AG Barr stiffed the HJC, the committee promptly reported a contempt citation to the House floor.  No vote.  Mueller wants to testify in private, perhaps offering a public opening statement.  No date.

The HJC’s most important responsibility now is to educate the public on the contents of the report.  It cannot wait for Mueller.  It can bring in experts to testify about parts of the report, explaining the facts and the law.  Nearly 1,000 former federal prosecutors have now signed a letter saying Trump would be in cuffs if he were not president.  I’ll bet at least 800 of them would be glad to testify or assist in other ways.  Surely, there are distinguished national security experts who would be delighted to help the public understand Volume I of the report.  The committee cannot simply wait for reluctant witnesses to come around and for the exhaustion of court processes.

Perhaps the most harmful effect of waiting is to convey the message that the facts we now have are somehow insufficient.  We have a report and supplemental public record that establish that the President of the United States has committed multiple felonies and has engaged in deeply unpatriotic conduct.  The task now is less to gather facts than to help the public understand the facts before them.  Facts developed by other committees will prove welcome supplements.

The House leadership seems committed to a fear-driven political calculation that impeachment will backfire.  History suggests otherwise.  Nixon and Clinton were both far more popular than Trump and their conduct was not nearly as egregious as Trump’s.  Even so, the impeaching party won the next presidential election.  Trump’s denial of congressional authority and his blatant effort to run out the clock threaten to make the House look bullied and feckless if it doesn’t act.

The House has produced significant legislation.  It’s now time to show that it can legislate and hold Trump accountable at the same time.

Sign up to get Yeomans Work in your inbox!

Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.