Yeomans Work

Trump Goes Full Wizard of Oz

October 9, 2019

The great and powerful Donald tweeted that in his “great and unmatched wisdom” he was withdrawing troops from Syria and if Turkey took advantage, he would “totally destroy and obliterate the Economy of Turkey,“ as he claimed to have done before.  It was difficult to read the tweet without envisioning a projection of a giant skull-like head with steam rising all around as it boomed out the words.

But, as we know, the Wizard of Oz was a small-time scammer, who lost his power when Toto pulled back the curtain. Adam Schiff appears to be playing the role of Toto in Trump’s Emerald City, tugging at the curtain.  While Trump was boasting about his brilliance and power as Head of State, Schiff’s investigations prompted the man behind that curtain to panic and send out a desperation blast in the form of a letter from Pat Cipollone, his White House Counsel, with eight pages of hysterical, political ranting that should embarrass any member of the bar.

Cipollone informed House leaders that the Trump Administration would no longer cooperate with the impeachment inquiry — no more witnesses, no more documents.  The letter is a stunning rejection of the constitution’s architecture of checks and balances and an assertion of unrestrained presidential power.  The letter alone is sufficient grounds for impeachment and removal from office.  Indeed, combined with Trump’s Oz-like break with reality, it makes removal even more urgent.

While the letter throws around allegations of unconstitutional conduct by the House, it fails to make any serious effort at legal argument — for the obvious reason that Trump’s position is entirely unsupported by law.  The letter espouses a bald rejection of congressional authority to engage in an impeachment inquiry or even traditional congressional oversight.  One of the letter’s central complaints is that the House has not voted on a resolution to begin the impeachment inquiry.  While the House did adopt such resolutions regarding the Nixon and Clinton investigations, there is no legal requirement that the House do so to move forward with an inquiry.  Regardless, even without a formal impeachment inquiry of any kind, the House would still have authority to obtain documents and witnesses to engage in regular oversight of the executive branch.

Trump’s latest move supplies the capstone in his attempt to rise above the law.  The Department of Justice has long taken the stance that a sitting president cannot be indicted.  Trump’s DOJ has argued in court that Trump, as a sitting president, cannot be subjected even to criminal investigation.  Now, Trump has taken the position that he cannot be investigated by Congress.  He has, therefore, attempted to close all avenues of accountability.

Recall that OLC’s opinion that a sitting president cannot be prosecuted rests heavily on the notion that impeachment stands as an alternative, as Robert Mueller recognized in his report.  And, both OLC and Mueller concluded that it remained appropriate to investigate possible presidential criminal conduct to preserve evidence for future use.  Unless impeachment is a real alternative, the prohibition on indicting a sitting president cannot stand.

Trump’s latest moves are likely to backfire.  His obstruction will not prevent the House from impeaching him.  A reasonable possibility is that he has accepted that inevitability and has calculated that the cost of obstruction is less than the cost of allowing a full airing of his wrongdoing.  Desperate defendants often resort to attacking the fairness of the process.  Trump is a master of that form of distraction.

His hope of prolonging the impeachment inquiry into the election season (so that he can argue that the process should be shut down to allow the voters to decide) appears to have failed.  House leaders are wise to the stall and will not attempt to overcome every obstructive act in court.  Rather, they will be able to incorporate each act of obstruction into an ever more powerful article of impeachment.

The obstruction count(s) will buttress the presidential abuse of power at the center of impeachment.  Trump’s posture of obstruction proclaims loudly that he believes his powers as president cannot be checked by Congress and are, therefore, unlimited.  That stance will not play well with the public.

Pundits and Democrats have long misread Trump’s personal vulnerability, even opining that Trump would welcome impeachment because it would play into his sense of grievance, which he would then exploit to fire up his base.  That has always been unconvincing.  Trump would find plenty of ways to whine about his unfair treatment without impeachment.  This is a man who is still trying to relitigate the 2016 election even though he’s literally been sitting in the Oval office for nearly three years.  Trump may be a dim bulb on substance, but his creativity shines brightly when he conjures grievances and his hardcore base will follow.

Trump’s frenetic and bizarre (even for him) tweeting of the past week reflects signs of panic as impeachment becomes inevitable.  Indeed, the tide is turning at an accelerating pace.  New polling suggests that a substantial majority — 58% — of the public supports the impeachment inquiry and 49% of the public already support his removal from office.  Those numbers have grown significantly since the revelation of Trump’s effort to solicit Ukrainian and Chinese assistance in his reelection.  In addition, his surprise decision to do Turkish leader Erdogan a solid by abandoning our Kurdish allies in Syria has shaken even Republicans in Congress, creating new cracks in his Senate protective wall against removal.

The revelation of new details about Trump’s assaults on our democracy will combine with his obstruction of the investigation to drive public support for impeachment higher.  Until now, Trump has insisted that the House vote on a resolution opening the impeachment inquiry before proceeding.  Given the growing popularity of impeachment, he is likely to drop that demand.  Speaker Pelosi, on the other hand, might think about holding that vote.

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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.