Mondays are always difficult, and sometimes there’s a shift in the wind. There’s something in the air. Mondays can be like that. Something is going wrong. Donald Trump must have felt that:
The fight over President Trump’s systematic stonewalling of Congress escalated on two fronts on Monday, as a federal judge upheld a subpoena for his financial records even as the White House instructed its former top lawyer to defy a subpoena to testify before lawmakers.
In the first court test of Mr. Trump’s vow to resist “all” subpoenas by House Democrats, a judge ruled that his accounting firm, Mazars USA, must turn over his financial records to Congress – rejecting his lawyers’ argument that lawmakers had no legitimate power to demand the files.
Mr. Trump separately moved to block Congress from receiving testimony by the former White House counsel Donald F. McGahn II at a hearing scheduled for Tuesday, denying House Democrats one of the most important eyewitnesses to Mr. Trump’s attempts to obstruct the Russia investigation. Mr. McGahn will not appear, his lawyer said later.
That’s the quick summary from the New York Times’ Charlie Savage and Nicholas Fandos who frame the underlying issue this way:
The fights raise separate but overlapping issues: how far Congress’s power to subpoena information extends, what Mr. Trump can apply executive privilege to in order to keep secret, and whether a president’s senior aides are “absolutely immune” from subpoenas, meaning they do not even have to show up when ordered to appear before lawmakers.
In short, can the president tell Congress to stuff it – they get nothing because they’re useless and don’t really matter – and are the president’s powers actually absolute, and always were, and everyone else should just shut up and go home? The nation is learning how Donald Trump thinks of the presidency. He runs things. To question him is unpatriotic. To investigate him is treason.
That is, broadly, his argument, but there was this:
Asked why he was telling Mr. McGahn to defy the subpoena, Mr. Trump suggested that his lawyers were just trying to protect the institution of the presidency.
“They’re doing that for the office of the presidency, for future presidents,” he told reporters on the South Lawn of the White House before departing for a campaign rally in Pennsylvania. “I think it’s a very important precedent. And the attorneys say that they’re not doing that for me. They’re doing it for the office of the president. So we’re talking about the future.”
That was a compressed version of what Nixon said on national television about those tapes. He couldn’t hand them over. They contained honest discussion of big issues where all parties assumed the discussion was private, so they could be brutally honest, a necessary thing. If they knew others were listening, or would listen later, they couldn’t be honest, only careful, saying next to nothing, just to be safe – and then no one would know what anyone really thought and nothing would be decided by anyone. And no foreign leader would ever talk to any president ever again. Some things have to be confidential. Nixon would not hand over the tapes. He was protecting the institution of the presidency.
The Supreme Court, in a unanimous decision, ruled that Nixon had to hand over the tapes. They might prove that a crime (or crimes) had been committed. No president can willfully conceal evidence of a crime, and especially evidence of what might be his own crimes. No president can rig the system.
That’s what worried the Democrats, but not enough, not yet:
Democrats were worried about precedent, as well, and as frustration mounted on Monday over Mr. McGahn’s absence, so did new tensions among Speaker Nancy Pelosi’s leadership team. Several members of the Judiciary Committee, led by Representative Jamie Raskin of Maryland, argued Monday night in a private leadership meeting that the time had come to open an impeachment inquiry to streamline Democrats’ investigations and try to strengthen their hand against the executive branch, according to three people in the room, who spoke on the condition of anonymity to discuss the private meeting.
That is, if the White House was going to continue to argue that the House had no right to ask for anything, because there was no “legislative purpose” to any of it at all – it was just harassment – then just go ahead and establish a clear legislative purpose. Open an impeachment inquiry. That’s a clear legislative purpose. Make it official. Take that argument away from the White House attorneys.
Or maybe not:
Ms. Pelosi, who had been venting frustration about Democrats’ policy work being overshadowed by the oversight wars, pushed back and questioned that approach, the people said. She urged colleagues to stay the course and, in another meeting with a broader group of lawmakers, referred to the court ruling to assure jittery Democrats that “we’re getting some results.”
“We have invested this much time,” she said, according to one of the people. “I don’t know why we would say McGahn, that’s it.”
And, in fact, they had won big:
In the financial records case, Mr. Trump’s legal team, led by William S. Consovoy, had argued that the subpoena by the House Committee on Oversight and Reform exceeded its constitutional authority because it had no legitimate legislative purpose in seeking Mr. Trump’s data. Lawmakers were just trying to dig up dirt – like finding out whether the president broke any laws – for political reasons, Mr. Trump’s lawyers argued.
But Democrats have said they need the records because they are examining whether ethics and disclosure laws need to be strengthened. In a 41-page ruling, Judge Amit P. Mehta of the United States District Court for the District of Columbia, an appointee of President Barack Obama, said that justification was sufficient to make the subpoena valid.
“These are facially valid legislative purposes, and it is not for the court to question whether the committee’s actions are truly motivated by political considerations,” he wrote. “Accordingly, the court will enter judgment in favor of the Oversight Committee.”
The subpoena was lawful. So are, presumably, all other such the subpoenas. Team Trump was saying that might seem to be the case, but consider the “motivations” of those issuing the subpoenas. Their hearts aren’t pure! Sure, these subpoenas are legal, but SHOULD they be? These are such mean and nasty people, and Donald Trump is such a good man.
Judge Mehta told Team Trump to drop that talk about the psychodynamics at play here – the Constitution is clear – the law is clear. This is quite simple. Follow the law. Obey the law. And this is the law, which has nothing to do with who is naughty or nice. But of course that won’t do:
Mr. Consovoy did not respond to an email requesting a comment. But Mr. Trump denounced the ruling as “totally the wrong decision by obviously an Obama-appointed judge.” He also said it was “crazy because if you look at it, this never happened to any other president.”
There’s a reason for that:
Democrats say their attempts to obtain Mr. Trump’s financial records were driven by the fact that he, unlike all previous modern presidents, has refused to disclose his tax returns. He has also declined to divest from his extensive business dealings, including with foreigners abroad, or to place his assets into a blind trust. And Michael D. Cohen, his former lawyer, has testified that he fraudulently inflated or deflated the value of the same assets in transactions, depending on what was expedient.
Trump asked for it, and no one can hide:
Mr. McGahn’s lawyer, William A. Burck, said in a letter to the committee that he viewed the dispute as one between the White House and the committee, adding that he hoped the committee would decline to hold Mr. McGahn in contempt for obeying Mr. Trump and not showing up.
“It is our view that the committee’s dispute is not with Mr. McGahn but with the White House,” he wrote.
But on Monday night in an interview on CNN, Mr. Nadler said that “the first thing we are going to do, we’re going to have to hold McGahn in contempt.”
Mr. McGahn has already defied the committee’s subpoena once. The panel had also called for him to hand over documents that he shared with Mr. Mueller and that the committee said were relevant to its own inquiry into potential abuses of power. The White House similarly instructed Mr. McGahn not to comply.
Senior House Republicans are breaking with Donald Trump over the president’s legal claims that Congress can’t investigate whether a commander in chief violated the law.
That view, advanced by Trump’s personal attorney and the White House counsel late last week, would upend long-held understandings about Congress’ ability to scrutinize presidential conduct – especially alleged criminal activity.
“I’m in Congress. I’m aligned with Congress. I’m not aligned with the executive branch. And I think we have oversight authority over the administration,” said Rep. Ken Buck (R-Colo.), a member of the House Judiciary Committee. “And if the president has acted illegally, then I think we have oversight authority.”
Rep. Tom Cole (R-Okla.), a veteran lawmaker who first came to Capitol Hill in the early 1980s as a congressional staffer, said he didn’t agree with Trump’s legal theories.
“Obviously there is such a thing as congressional oversight,” Cole said.
Perhaps so, but there is confusion too:
Institutionalist-minded Republicans are increasingly uncomfortable with the far-reaching arguments Trump and his lawyers are using to make their case, amid fears the claims of near-immunity from congressional scrutiny would set dangerous precedents.
But these lawmakers are not preparing to act in any way that constrains Trump. They roundly support the president’s rejection of House Democrats’ investigations and subpoenas, arguing Democrats are taking their investigations of the president too far – particularly those targeting his business dealings and personal finances.
Okay, they hate what he’s doing, but they won’t do anything about it, but one of them will do something about it:
Trump and Attorney General William Barr’s handling of special counsel Robert Mueller’s conclusions motivated one Republican lawmaker, Rep. Justin Amash of Michigan, to call for the president’s impeachment over the weekend.
“We’ve witnessed members of Congress from both parties shift their views 180 degrees—on the importance of character, on the principles of obstruction of justice – depending on whether they’re discussing Bill Clinton or Donald Trump,” Amash tweeted on Saturday.
Amash argued that Mueller’s report proved Trump had obstructed justice and that he escaped indictment only because of Justice Department rules that prohibit the indictment of a sitting president.
And that was the big deal, as Jonathan Chait explains here:
Saturday, Representative Justin Amash became the first Republican in Congress to call for impeaching President Trump on the basis of the massive misconduct detailed by the Mueller report. It was a rare act of bravery, one likely to end his career in Congress. Amash’s fellow Republicans immediately set about proving how brave it was by excommunicating him from the party.
House Minority Leader Kevin McCarthy appeared on Fox News to unleash a wild flurry of lies. “You’ve got to understand Justin Amash. He’s been in Congress quite some time. I think he’s asked one question in all the committees that he’s been in,” he said. “He votes more with Nancy Pelosi than he ever votes with me. It’s a question whether he’s even in our Republican conference as a whole. What he wants is attention in this process. He’s not a criminal attorney. He’s never met Mueller. He’s never met Barr.” The California congressman added, “It’s very disturbing … He never supported the president, and I think he’s just looking for attention.”
That’s all nonsense that Chait dismantles point by point, like this:
“He votes more with Nancy Pelosi than he ever votes with me.” Amash is a right-wing libertarian with some gadfly tendencies, but his anti-government views place him clearly on the Republican side. Amash had an 88 percent score from the American Conservative Union, a 100 percent score from FreedomWorks, and has voted with Trump 92 percent of the time in this Congress (though only 54 previous in the previous Congress.)
“He’s not a criminal attorney.” Oh, McCarthy is interested in what criminal attorneys think of the Mueller report? Well, there’s a letter from more than 400 former federal prosecutors asserting “the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.”
There’s much more of course:
McCarthy’s impulse is to cast Amash as an outsider, and thus to discredit his stance. This is the central theme of the messaging that took hold over the weekend. “The only people still fixated on the Russia collusion hoax,” asserts Republican National Committee chair Ronna Romney McDaniel, “are political foes of President Trump hoping to defeat him in 2020 by any desperate means possible.”
In one sense this is true. If you define anybody who objects to Trump’s conduct as a political foe, then only his foes object to his conduct. Trump has used this logical circle to discredit everybody who has challenged him. This Trumpian alchemy has transformed lifelong Republicans like Robert Mueller, James Comey, John McCain, John Kasich, and many others into hardened Democratic partisans. To be a loyal Republican now is to support all of Trump’s misconduct, therefore, anybody who objects to Trump’s conduct is a partisan Democrat.
The grain of truth in the accusations against Amash is that Amash is contemplating a presidential candidacy with the Libertarian Party. “I would never rule anything out,” he said in March.
And that means Trump should worry:
A real right-wing third-party challenge, by a Republican (who hails from a swing state) would be a nightmare for Trump’s reelection. And the more Republicans attack Amash, the more they close the door on any chance he can return to Congress, where he mostly votes with them, and push him instead to run against Trump. The short-term goal of discrediting Trump’s critics may bring with it a much larger long-term cost.
Trump was having a bad Monday, and Cristian Farias puts that in historical perspective:
More than a year before the House Judiciary Committee adopted articles of impeachment against President Richard Nixon, Representative Pete McCloskey, a California Republican, became the first member of Congress to call for a discussion about whether to begin an impeachment inquiry over Watergate.
Over the weekend, Representative Justin Amash of Michigan pulled a McCloskey of sorts. He became the first Republican in Congress to say that the report of the special counsel, Robert Mueller, showed that President Trump had committed impeachable offenses.
Then he doubled-down on Monday:
“Mueller’s report reveals that President Trump engaged in specific actions and a pattern of behavior that meet the threshold for impeachment,” Mr. Amash wrote on Twitter.
“In fact,” he added in a 13-tweet explanation of his conclusions, “Mueller’s report identifies multiple examples of conduct satisfying all the elements of obstruction of justice, and undoubtedly any person who is not the president of the United States would be indicted based on such evidence.”
Mr. Trump responded on Sunday by calling Mr. Amash “a total lightweight” and “a loser.” And on Monday, Mr. Amash went at it again on social media, dispelling common misconceptions about the Mueller report and its findings.
He actual read the report, all of it, and while that may not matter to Trump and the Republicans, there is a secondary effect here:
Mr. Amash isn’t likely to be a bellwether for his party. He is a libertarian who has long staked out his own positions on issues such as gay marriage, government surveillance and Mr. Trump’s entry restrictions on Muslim travelers.
But what is remarkable about Mr. Amash’s stand is how much tougher it is than that of the House’s Democratic leaders to date. Wary of a move that has little public support, Speaker Nancy Pelosi and prominent committee leaders have avoided talk of impeachment and have focused on learning what Attorney General William Barr redacted from the report, as well as subpoenaing testimony and documents.
But this Republican heretic has now made it clear that the report itself is enough to get an impeachment going, which put Pelosi and the others in a bind:
It’s understandable that Democrats are concerned that an impeachment fight could distract from the issues at the heart of their campaign to unseat Mr. Trump and Republican members of Congress next year. The House needs to investigate aggressively the questionable conduct by this president and follow that inquiry where it leads.
But Democratic leaders also need to be stronger and clearer about what we know.
Walter Dellinger, who led the Justice Department’s Office of Legal Counsel during the Clinton administration, expressed it well in a Washington Post op-ed last week.
“How different would it have been,” he wrote, “if a unified chorus of Democratic leaders in Congress and on the campaign trail had promptly proclaimed the actual truth: This report makes the unquestionable case that the president regularly and audaciously violated his oath and committed the most serious high crimes and misdemeanors.”
And now a Republican has said that, so Farias says this:
That’s what Mr. Amash concluded. And like Mr. McCloskey did all those years ago, he concluded that Mr. Trump’s pattern of obstructive behavior was enough for the House to fulfill its constitutional duties.
So what’s the problem? It may be time to move on this. It was one of those Mondays when there was a shift in the wind. Something was up.