(Bloomberg) -- Speaker Nancy Pelosi and other top House Democrats enter a pivotal week in efforts to counter President Donald Trump’s defiance of congressional investigations by imposing consequences for ignoring House subpoenas and other demands.
Despite pressure from inside their caucus to open a formal presidential impeachment inquiry, they will maintain a middle ground instead with a vote on the House floor Tuesday to further empower committee oversight of Trump and his administration. The move carries potential benefits and risks.
“It’s a resolution that reflects the middle of the caucus, who appear to have grown frustrated over the president’s obstruction,” said Joshua Huder, a senior fellow with the Government Affairs Institute at Georgetown University. “Regardless of its political meaning, it’s a step up in the fight between Congress and the president.”
The resolution authorizes the Judiciary Committee to pursue civil legal action and judgments against Attorney General William Barr and former White House Counsel Don McGahn for defying congressional demands for documents and testimony under White House direction. It stops short of finding them in contempt of Congress, a move the House Judiciary Committee approved for Barr.
But it would also give House Judiciary Chairman Jerrold Nadler of New York and a number of other chairmen the power to issue contempt citations -- with approval of Pelosi and a couple of her top House lieutenants -- without needing a vote of the full House.
Confronted with Trump’s vow to resist all cooperation with House investigations -- “we’re fighting all the subpoenas,” he said in April -- Democrats are also moving on other fronts to sharpen their case against the president.
That starts with a hearing on Monday afternoon labeled “Lessons from the Mueller Report: Presidential Obstruction and Other Crimes.” Lacking any administration witnesses, the committee will hear from critics including John Dean, who was President Richard Nixon’s White House counsel and gave crucial testimony when the House weighed impeaching him.
Dean has become an outspoken critic of Trump. The president tweeted on Sunday that Democrats seeking a “Do Over” of Special Counsel Robert Mueller’s findings “are even bringing in @CNN sleazebag John Dean.”
The new round of House hearings could be a start to building a case for “high crimes and misdemeanors” -- the constitutional standard for impeachment -- even as Pelosi continues to stiff-arm calls from increasing number of her House Democratic colleagues for a formal impeachment inquiry. That’s included nudging in private from Nadler.
Representative Doug Collins of Georgia, the top Republican on Judiciary, complained to Nadler on Friday that his hearing with Dean “appears to be part of a strategy to turn the committee’s oversight hearings into a mock-impeachment inquiry.”
But the biggest substantive move this week will be Tuesday’s House floor vote. Legal experts say it will establish an unprecedented power for House committee chairmen to more expeditiously pursue lawsuits to obtain enforce subpoenas or fines against administration officials who refuse to provide information.
“This is necessary,” said Judiciary Committee Democrat Jamie Raskin of Maryland, who favors impeachment, but also supports this move. “We’re in the midst of an unprecedented, wholesale defiance of congressional fact-finding power by the president and the executive branch.”
Barr has refused to produce an unredacted version of Mueller’s report on Russian interference in the 2016 election and the underlying evidence. McGahn has refused to produce documents or appear before the Judiciary panel to provide testimony concerning Trump’s alleged obstruction of justice. The White House asked both men not to comply with the congressional subpoenas.
A resolution approved by the Judiciary Committee last month to find Barr in criminal contempt has been shelved with the realization that Congress would have to depend on the Justice Department to prosecute its leader, the attorney general.
With the House resolution giving chairmen broader power to initiate civil action against witnesses who won’t cooperate, other potential targets are already in sight.
House Oversight Chairman Elijah Cummings of Maryland said Friday he intends to pursue separate contempt actions this week against Barr and Commerce Secretary Wilbur Ross for refusing to turn over documents tied to the administration’s bid to add a citizenship question to the 2020 Census.
Also, the administration invoked executive privilege claims in instructing former White House advisers Hope Hicks and Annie Donaldson not to produce documents under a Judiciary Committee subpoena. It’s uncertain whether they may refuse to testify, as scheduled, later this month.
The approach being pursued by Pelosi sends the message she’s gathering the evidence that would be needed in a formal impeachment effort, according to Representative Gerald Connolly of Virginia, chairman of the House Oversight subcommittee on government operations.
The speaker’s middle-ground approach giving more power to committee chairmen also may provide protection -- at least for now -- to some House Democrats in districts that were carried by Trump in 2016, according to Samuel Everett Dewey, a former congressional lawyer who led investigations in key committees in both the House and Senate.
“This will completely shield them," said Dewey, who’s now with the law firm McDermott Will & Emery.
Risks in Court
But rushing to launch swifter court action to stop Trump’s delaying tactics carries risks -- including that the House might lose some of these cases. And there’s no guarantee that getting to court faster means the case will be resolved swiftly. It took several years to get a court ruling in a 2012 contempt of Congress action against one of former President Barack Obama’s attorneys general, Eric Holder, over issues executive privilege.
There have been swift initial successes for House legal efforts in federal court orders to Mazars USA, Deutsche Bank AG and Capital One Financial Corp. to produce financial records.
But Dewey, the former congressional lawyer, said House moves toward fast action could backfire.
“The more you speed up and strip process, the more litigation risk you run,” he said.
The floor procedures for Tuesday’s House vote are to be ironed out in a Rules Committee meeting on Monday night. Democratic officials say they expect there will be one hour of debate permitted before the vote, equally divided between Republicans and Democrats.
Connolly said he doesn’t worry that Democrats demanding impeachment now will use that stage to undermine Pelosi’s go-slow approach.
“The honest discussion about impeachment” among House Democrats reflects the discussions “going on in households across the nation and in the media,” he said.
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