Nothing happened. Richard Nixon wanted nothing to happen. No one would hear those tapes. No one should hear those tapes. No president, in the future, would be able to talk frankly to his staff and with other world leaders, or with anyone, if everything that future president said would then be made public. No one would say anything. Everything would grind to a halt – and of course that whole Watergate business was doing just that – that had paralyzed the government. So Richard Nixon would turn over nothing. His people – those who remained – would say nothing to anybody. Don’t even try to ask them to say anything. This investigation had to stop. Archibald Cox was appointed by Congress to look into all this, working out of the justice department but independent of it, and Cox wanted the tapes. Nixon fired him – sort of. He told his attorney general to fire him. His attorney general refused so Nixon fired his attorney general and told his assistant attorney general to fire Cox. His assistant attorney general decided he’d resign rather than fire Cox, and he resigned on the spot. Nixon’s solicitor general, Robert Bork, was next in line. Bork did the deed. Later, Ronald Reagan would nominate Bork for the Supreme Court. The Senate would not confirm him. Bork was too eccentric – and Nixon lost the battle over those tapes. Congress sued. The Supreme Court ruled, unanimously, that Nixon had to turn them over – because this was about actual crimes, not about keeping frank diplomatic and domestic policy conversations discretely private. So everyone heard the tapes.
They were devastating. Nixon was gone a few weeks later. Richard Nixon had wanted nothing to happen. It doesn’t work that way. Things always happen, and now things are happening again, and it’s like old times. Donald Trump wants nothing (more) to happen. Shut it down. There’s nothing more to see, but of course it’s not Watergate. It’s that Russia thing. But it’s the same thing. No one will see anything. No one will say anything. And no one will show up:
Attorney General William P. Barr’s snub of House Democrats on Thursday has triggered an all-out war between the White House and Congress, pushing the House closer to holding the nation’s top law enforcement official in contempt of Congress and prompting Speaker Nancy Pelosi to liken President Trump to President Richard M. Nixon.
Yes, he’s back:
The almost daily confrontations between the two branches of government increase the pressure on Pelosi (D-Calif.) to initiate impeachment proceedings against Trump, a politically fraught move that she has resisted in the absence of strong public sentiment and bipartisan support. Many Democrats argue that the 2020 election is the best means to oust the president.
But Democrats are infuriated with Barr, who refused to testify Thursday at the House Judiciary Committee’s scheduled hearing on his handling of special counsel Robert S. Mueller III’s report, and Trump’s defiance in the face of multiple congressional requests for documents and witnesses. Democrats cast the administration’s unwillingness to cooperate as a threat to democracy with far-reaching implications.
It is like old times:
“Ignoring subpoenas of Congress, not honoring subpoenas of Congress – that was Article III of the Nixon impeachment,” Pelosi said of Trump in a private meeting with colleagues, according to notes taken by an individual present for the remarks. “This person has not only ignored subpoenas, he has said he’s not going to honor any subpoenas. What more do we want?”
No, no, no, this is sour grapes:
Republicans have insisted that Democrats were simply intent on targeting Trump, unwilling to accept a lengthy investigation that found no criminal conspiracy between the Trump campaign and Russia.
No, wait, it’s really treason:
Republican lawmakers also rebuffed the Democrats’ argument that their moves were to safeguard the powers of Congress and that the GOP had a constitutional responsibility to join them. Trump’s congressional allies – loath to say anything against him – rallied to his side instead.
Appearing at a Washington Post Live event Thursday morning, House Minority Leader Kevin McCarthy (R-Calif.) essentially accused U.S. law enforcement of treason during the investigation of Russian interference in the 2016 presidential election.
“Their actions are a coup,” McCarthy said, suggesting anti-Trump bias influenced the origins of the probe. “I do not believe they were abiding by the rule of law.”
That argument is getting old but it will persist. There is a Deep State that really runs things. Trump challenged that Deep State and that Deep State ganged up on him, to get rid of him, no matter what the people thought, even if Trump had won in the greatest landslide in the nation’s history. Until we get rid of the FBI and CIA and NSA and the rest of what Steve Bannon called the “administrative state” – the IRS and EPA and NIH and FDA and the FAA and all the rest – the people will not run America, the Deep State will. Every one of those agencies commits treason every single day. And so on and so forth. Nixon would have admired these people taking what he only vaguely implied and making it standard fare on talk radio and Fox News.
But there is the immediate issue:
The tensions between the Trump administration and Congress could come to a head as early as next week, when House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) said his panel will probably adopt a contempt citation against Barr unless he provides the full, unredacted Mueller report.
Nadler had subpoenaed the document and imposed a Wednesday deadline. But Barr has refused to turn it over, with Justice Department officials arguing that the request “is not legitimate oversight.”
Yeah, right, tell that to the cop that stops you for speeding and shows you the readout on the radar gun. Tell him that’s not legitimate oversight. Good luck. But there are bigger issues here:
Democrats cast the snub as more than one witness rebuffing a congressional committee, but rather a threat to democracy that would reverberate long after Trump left office. The president has vowed to “fight all the subpoenas” from Democrats, sued to block compliance by accounting firms and banks, and instructed former and current aides to ignore the repeated requests from Capitol Hill.
“He’s trying to render Congress inert as a separate and coequal branch of government,” Nadler said. “If we don’t stand up together, today, we risk forever losing the power to stand up to any president in the future.”
Of course he’s trying to render Congress inert – irrelevant and powerless – and he is succeeding. Barr didn’t show up. This administration will ignore all subpoenas and turn over no documents at all. What is Congress going to do, hold its breath until it turns blue? Trump has also floated the idea that if he loses the 2020 election he will not accept the results – the election must have been rigged and he will not relinquish his office. And what can anyone do about that? His very own justice department will not toss him out. His very own military will back him, and so will his very own Supreme Court. He knows the will of the people. They love him. They want him. He stays.
Nixon resigned. Nixon thought small. There might have been a trial in the Senate on the House’s articles of impeachment, and he could have been found guilty and been “removed from office” – but what if he decided he’d just stay in office? Was anyone really going to come over and walk him out? Nixon thought small. Trump thinks big.
And some Democrats think small:
Capitalizing on Barr’s refusal to show, Democrats on the Judiciary Committee held their hearing anyway in an event that featured all the trappings of a major hearing – TV cameras, armed security guards, lawmakers arrayed on the dais – but in the center of the room sat an empty witness chair behind a name plate for Barr.
Minutes before it started, Rep. Steve Cohen (D-Tenn.) walked into the room carrying a bucket of Kentucky Fried Chicken and a plastic chicken. The clicks of cameras suddenly echoed throughout the room as watchers chuckled at his insinuation that Barr was too afraid to show up for questioning.
That generated a day of useless nonsense. Chicken! Who you calling chicken?
Who cares? There were bigger issues:
Although Pelosi was furious with Barr, she saved her sharpest attacks for Trump. At the private meeting, she unloaded: “I think I’m an expert on why he shouldn’t be president of the United States. I think impeachment is too good for him. But one person knows more why he shouldn’t be president of the United States, and that is Donald Trump. And he tells us every single day.”
He tells them and he’s daring them to impeach him. He won’t leave, then what? But this is what it is:
Pelosi allies and those who know her well said she’s getting sick of what Democrats call constant stonewalling from Trump officials. House Rules Committee Chairman Jim McGovern (D-Mass.) said “with each passing day we learn more and more about this administration that is deeply troubling” – and so it’s natural for the speaker to become more upset with Trump, he said.
“I know that Pelosi is someone who respects the institutions of our government and is horrified by what she’s seeing unfold,” McGovern said.
Asked whether he was concerned that Pelosi might one day approve a plan to impeach the president, Rep. Emanuel Cleaver II (D-Mo.) – an impeachment skeptic who jokes that “I’m probably going to be the last holdout” against starting proceedings – said even he was getting frustrated.
“I think that everybody, including the speaker, is having to adjust to the tenor of the moment, and it keeps getting worse,” he said. “I think she’s just moving with the events. Barr has taken it to a whole new level and if it keeps going like this, it’s going to be to the detriment of the president.”
Maybe so, or maybe not. Trump has options that Nixon never considered:
The morning after the Supreme Court reviewed his administration’s most important case of the term, President Trump informed the justices he might have another task for them.
“I DID NOTHING WRONG,” Trump tweeted Wednesday. “If the partisan Dems ever tried to Impeach, I would first head to the U.S. Supreme Court.”
Constitutional experts immediately derided Trump’s faulty legal analysis. But the more striking message, the day after the court considered the administration’s plan to put a citizenship question on the 2020 Census, seemed to be Trump’s consistent theme that he views the nation’s highest court as an ally, and safeguard against lower court defeats and congressional opponents.
The idea is that these people will declare impeachment to be treason, just like the Mueller investigation was pure treason, at least that’s the general somewhat odd idea:
“President Trump views the Roberts Court as his potential, perhaps literal, ‘get out of jail free’ card,” said Elizabeth Wydra, president of the liberal Constitutional Accountability Center. She added: “The question is, what does Chief Justice Roberts do?”
There is a vast difference between the 17th chief justice’s aspirational message of judicial independence and the 45th president’s realpolitik view that some judges (those who are Republican-appointed) are his friends while others (those installed by Democrats ) are his foes. And Trump has explained the legal process in a way not found in textbooks on American democracy…
Keith E. Whittington, a Princeton University political science professor, who teaches a course called “Constitutional Difficulties in the Age of Trump,” said he thinks the president misjudges the court as an ally but adds, “It’s one of the odd features of the Trump presidency that he says things out loud and in public that other people might say in private.”
But he has been working on this:
Trump’s confidence in the high court seems borne of the fact that he’s nominated two of the five conservative justices that make up the court’s majority – Neil M. Gorsuch and Brett M. Kavanaugh. The president said this week he was pleased with Kavanaugh’s questioning in the census case, an adviser said.
The president and the first lady are friendly with Justice Clarence Thomas and his wife, Ginni Thomas, having shared dinner at the White House.
But Trump declared Roberts a “disaster” during the presidential campaign because of the chief justice’s pivotal vote upholding the Affordable Care Act. The two have a cordial if limited relationship now, and Roberts wrote the court’s opinion last term upholding Trump’s ban on travelers from some majority Muslim countries.
Okay, Roberts might come around, but there are difficulties:
The Constitution leaves impeachment to the House, with a trial to be conducted by the Senate. In a 1993 opinion, the Supreme Court was unanimous in rejecting a federal judge’s plea that justices review the Clinton impeachment proceedings. The court’s opinion specifically mentioned the difficulty of judicial review in the case of a presidential impeachment.
And Kavanaugh wrote in a 2009 law review article that impeachment, rather than prosecution, is the remedy when a president “does something dastardly.”
“No single prosecutor, judge or jury should be able to accomplish what the Constitution assigns to the Congress,” Kavanaugh wrote.
But maybe Kavanaugh will come around too. The Democratic House passes articles of impeachment. Trump sues them. The Constitution allows that but these new articles of impeachment are no more than unjustified and groundless harassment – “presidential harassment” as he likes to say, over and over and over. His very own Supreme Court then declares that to be an act of treason. It could happen.
The reasoning and the legal theory is already in place, but even Quin Hillyer in the hyper-conservative Washington Examiner is a bit frightened:
Attorney General William Barr three times now has tread on the dangerous ground of asserting that the president can assess his own guilt or innocence and, by extension, of the culpability of underlings as well.
Barr’s claims are meretricious nonsense.
That means that Barr’s claims are pure bullshit:
The first assertion came by implication, but not fully stated, in Barr’s April 18 press conference before he released the Mueller report on Russian malfeasance. The next two, from his May 1 testimony to the Senate Judiciary Committee, were quite explicit.
Barr’s prepared press conference remarks ascribed “non-corrupt motives” to President Trump’s consideration of impeding Mueller’s probe, on the theory that Trump “was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks,” even though “there was in fact no collusion.”
Yet frustration and anger provide no legal excuse for impeding a lawful investigation, and Barr has acknowledged the investigation was lawful. So how does this provide Trump any excuse?
That’s a good question, but there’s more:
In his May 1 testimony, Barr was more specific on two separate occasions. “If the president is being falsely accused … and he knew [the accusations against him] were false, and he felt this investigation was unfair, propelled by his political opponents, and was hampering his ability to govern, that is not a corrupt motive for [exercising constitutional authority] for replacing an independent counsel.”
In later testimony, Barr said: “With the president, who has a constitutional authority to supervise proceedings, if in fact a proceeding was based on false allegations, the president does not have to sit there constitutionally and allow it to run its course. The president could terminate that proceeding and it would not be corrupt intent because he was being falsely accused, and he would be worried about the impact on his administration.”
This is Nixon on steroids:
His assertions are wrongheaded and possibly dangerous on multiple levels. The first is on principle alone: No man, not even the president, should be allowed to judge his own case. Otherwise, he’s a tyrant. The very notion of such power runs counter to the entire basis of America’s constitutionally limited government and its history of fighting a revolution to jettison a king.
Second, to the extent Barr is making more limited claims that a president has constitutional power to fire a constitutionally inferior officer (rather than to stop an entire investigation), he ignores the reality that even the powers granted by the Constitution are limited in both law and custom. Furthermore, any “intent” to impede an otherwise lawfully operating investigation on the basis of one’s own supposed innocence is to violate the first principle above. To violate a constitutional-historical principle as important as that one is inherently corrupt.
Third, Barr’s statements produce an absurd logical consequence. In practice, even if Trump knew with God-like omniscience that he was personally guilty of no legal offense, and is thus justified in Barr’s mind to stop the investigation, he might also be killing an investigation into others – say, Paul Manafort, Michael Cohen, George Papadopoulos, Roger Stone, and more than a dozen Russian spies or other alleged criminals who worked illegally to undermine a U.S. election. Is Barr maintaining that this is also acceptable?
The whole thing is absurd, and misses the main point:
The Mueller investigation was only ever secondarily about Trump (or even Trump’s aides and relatives). The first official instruction given to Mueller was to “ensure a full and thorough investigation of the Russian government’s efforts to interfere in the 2016 election.” If Trump killed that proceeding even to keep it from “hampering his ability to govern,” he would be undermining the entire nation’s ability to protect itself from illegal Russian meddling.
And of course THAT would be treason:
In the end, there can be no innocent motive for, or innocent effect from, an attempt to halt a duly constituted investigation operating under proper constitutional safeguards. This is so even if a president’s political opponents are misusing the existence of the investigation for their own illegitimate purposes.
If William Barr really thinks otherwise, he should not be attorney general.
That makes sense. But he is attorney general, and Donald Trump is Richard Nixon on steroids. Richard Nixon wanted nothing to happen. No one would hear those tapes. And we know how that ended.