(Bloomberg) -- President Donald Trump’s decision to fight “all the subpoenas” is pushing Democrats toward a complicated and risky choice: take on the White House in a lengthy court battle or begin an impeachment.
It’s a dilemma that only grew more pressing on Tuesday, when former White House Counsel Don McGahn defied a congressional subpoena by declining to testify before the House Judiciary Committee at the direction of the White House.
The impeachment process would strengthen Democrats’ legal case for enforcing subpoenas, but it would open them to political attacks from Republicans who already say they are rushing toward a predetermined outcome -- and one that would be rejected in the GOP-controlled Senate.
The White House has been goading Democrats into opening an impeachment proceeding by fighting many of the current subpoenas on the grounds they’re not related to a clear legislative purpose. Democratic leaders have been wary of moving ahead, concerned that impeachment could backfire and help Trump win re-election next year.
It’s a constitutional power struggle between two branches of government. It will also come down to perception: whether an impeachment process is seen as opening a legitimate investigation or as a political step to remove an opponent from office.
“Most Democrats still do not want to go down that road of impeachment -- the political peril in that is still unknown,” Representative Gerald Connolly of Virginia, a top Democrat on the House Oversight Committee, said in an interview. “But having said that, if for tactical reasons that is what we have to do to enforce subpoenas that he is defying across the board, what alternative to we have?”
On Monday, a federal judge forcefully backed the Democrats, saying that Trump’s longtime accounting firm should comply with a subpoena from the House Oversight and Reform Committee and hand over his financial records.
“It is simply not fathomable that a Constitution that grants Congress the power to remove a president for reasons including criminal behavior would deny Congress the power to investigate him for unlawful conduct -- past or present -- even without formally opening an impeachment inquiry,” U.S. District Judge Amit Mehta wrote in an opinion.
Yet Trump has been fighting Democratic subpoenas of current and former U.S. officials, as well as a broader series of requests for documents and testimony.
On Monday, White House Counsel Pat Cipollone moved to shield McGahn from testifying before Congress, asserting broad immunity to compelled testimony. Previously, Trump claimed executive privilege to block McGahn from handing over documents to the panel.
On Tuesday, a chair reserved for McGahn sat empty behind microphones, as House Judiciary Chairman Jerrold Nadler of New York opened a hearing scheduled for his testimony.
“This conduct is not remotely acceptable,” Nadler said of the White House’s instruction to McGahn not to appear. “Let me be clear: This committee will hear Mr. McGahn’s testimony, even if we have to go to court to secure it."
“We will hold this president accountable -- one way or the other,” Nadler said.
Representative Doug Collins, the Judiciary panel’s top Republican, countered, saying, “The special counsel closed up shop without giving Democrats anything to deliver to their base. Now Democrats are trying desperately to make something out of nothing, which is why the chairman haphazardly subpoenaed today’s witness.”
Nadler met on Monday night with House Speaker Nancy Pelosi, who has resisted calls for impeachment so far, to lay out the legal benefits of opening a process to remove Trump from office, according to a House official. But the official, who asked not to be identified, wouldn’t say whether Nadler advocated impeachment and said Pelosi didn’t indicate she’d changed her mind.
But the No. 2 Democrat in the House, Steny Hoyer of Maryland, suggested Trump’s approach to congressional investigations is changing the debate.
“If it leads to a conclusion that we need to proceed through other avenues, including impeachment, so be it,” he told reporters.
Both Trump and Attorney General William Barr have said the administration’s legal strategy is aimed at protecting the power of the presidency.
“If you destroy the presidency and make it an errand boy for Congress, we’re going to be a much weaker and more divided nation,” Barr told the Wall Street Journal.
The move to block McGahn from testifying under subpoena infuriated Democrats, prompting several previously reluctant Democrats to embrace impeachment over what they say is evidence of obstruction in Special Counsel Robert Mueller’s report on obstruction of justice by Trump.
“Stonewalling Congress on witnesses and the unredacted Mueller report only enhances the president’s appearance of guilt, and as a result, he has pushed Congress to a point where we must start an impeachment inquiry,” Representative Mark Pocan of Wisconsin, who leads the Congressional Progressive Caucus, said Tuesday in a statement.
Some Trump allies hope Democrats will start impeachment, thinking that it could backfire the same way it did on Republicans who impeached President Bill Clinton in 1997. It would also allow Trump to seize on impeachment as another sign of his political victimization, or what he calls “presidential harassment.”
“That’s why this is a perilous course,” Connolly said.
Some of that peril comes from the public perception of impeachment as a trial, rather than an investigative process. In Congress, the House Judiciary Committee can open an impeachment inquiry. It takes a vote of the full House to impeach and a two-thirds vote in the Senate to convict and remove someone from office.
House Democrats are increasingly talking about impeachment as an investigative process, not simply a way to oust the president.
“I think if in fact we open an impeachment inquiry we will conduct ourselves in a way that will reflect the seriousness of what we are doing and the importance of fulfilling our responsibility” House Judiciary member David Cicilline of Rhode Island said. “So I don’t worry that people will think it’s preordained.”
The House has begun impeachment proceedings more than 60 times, but less than a third have led to full impeachments, according to information from the Office of the House Historian. Outside of the 15 federal judges impeached by the House, two presidents -- Andrew Johnson and Clinton -- a cabinet secretary, and a U.S. senator, have also been impeached by the House. Only eight people have been convicted by the Senate and removed from office -- all federal judges.
Yet it might be difficult for Democrats -- after months of House committee investigations, tussles over administration defiance of subpoenas for document and witnesses, and then an impeachment inquiry -- to close an investigation without voting to impeach Trump.
Further complicating matters, several Democratic presidential candidates have called for the president’s impeachment.
“In reality, there is no commitment to impeachment that is made with the initiation of an inquiry,” explained Jonathan Turley, a law professor at the George Washington University in Washington. “But politically, the Democrats know that starting an impeachment inquiry would make it difficult for their members to hop off the train once it’s moving down that track.”
Publicly, Pelosi has approached the topic of an impeachment inquiry with caution. “I don’t want to impeach,” she said again last week at a Georgetown Law School event. But she added, “I think the president every day gives grounds for impeachment in terms of his obstruction of justice.”
Nadler said last week that his committee and House Democrats would continue to hold hearings and try to enforce their subpoenas, but that Democrats could open an impeachment inquiry because that would provide stronger legal tools.
“If it becomes necessary in order to enforce our ability to do that, we will,” he said. “Because that would give us in a court proceeding to enforce a subpoena the highest possible claim.”
Tom Campbell, a former Republican House member who’s now a law professor at Chapman University in California, pointed to a 1974 District of Columbia Circuit Court of Appeals ruling that suggested the House Judiciary Committee had a stronger claim to President Richard Nixon’s Oval Office tapes than a Senate committee because the House panel was overseeing impeachment proceedings.
Campbell also pointed out that in 1984, a federal appeals court approved the release of secret grand jury material to a House impeachment proceeding against then-federal judge Alcee Hastings, who was later convicted by the Senate and removed from office.
In a sign of restlessness even among other leaders of her caucus, Pelosi was pressed Monday during a closed-door meeting to begin proceedings, according to people familiar with the matter. But she continued to remain opposed to moving forward, according to the people, who were granted anonymity to describe internal party discussions.
Asked by reporters Tuesday if she is feeling increased pressure to pursue impeachment, Pelosi said, “No.”
“We have no division,” she said.
--With assistance from Steven T. Dennis, Andrew Harris and Laura Litvan.
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