Does this mean that Jerrold Nadler has decided not to take the bait? CNBC’s John Harwood asked the House Judiciary chair whether Donald Trump wants to “goad Congress into impeachment,” or whether the president’s just too impulsive to strategize to that extent. Nadler doesn’t quite take Harwood’s bait either, but says that the House is not likely to test the theory:
John Harwood: What do you think he is doing now? There are some people who believe that Trump is trying to goad the Congress into impeaching him because he thinks he will get a political benefit from that. There are others who think he’s just an impulsive person who acts the way he acts, and it’s not a larger strategy.
Jerry Nadler: It’s more the second than the first. I think he is very impulsive, he’s very willful, and he’s very ignorant. I mean, unlike Richard Nixon, who knew exactly what he was doing when he was violating the law and violating norms and so forth, he just goes ahead. He doesn’t know what the law is. He doesn’t know what the constitutional history is. He doesn’t know the implications of half of what he does.
John Harwood: Do you agree with Speaker Pelosi, who said the other day that he is self-impeaching by his conduct, making it impossible for you to avoid that?
Jerry Nadler: He’s making it increasingly difficult. Our major goal has to be to vindicate the rule of law. No questions are being answered about any subject. And then, when subpoenas are being issued, there’s a blanket command, disobey all subpoenas. Nobody should testify, and nobody should give documents to Congress. Well, that’s a way of neutering Congress, of making sure that Congress can’t do its job, of turning the country into a dictatorship of a monarchical president. You can’t function if you don’t have information.
However, Nadler doesn’t really believe we’re headed for impeachment, he tells Harwood, who gets caught by surprise:
John Harwood: When you say, “The question of impeachment is down the road,” do you have a clock in your head? Does it need to be this calendar year or not at all?
Jerry Nadler: I don’t mean just in terms of time. It depends what comes out. It depends where the American people are, whether they want to go that way or not. I don’t want to make it sound as if we’re heading for impeachment. Probably we’re not.
John Harwood: You really believe that? Probably we’re not?
Jerry Nadler: Probably, but I don’t know.
John Harwood: What I hear from your colleagues is the reverse — probably we are, but not yet.
Jerry Nadler: Maybe. It’s hard. I don’t know.
NARRATOR: They weren’t. Donald Trump may not be the most popular of presidents, but impeachment is far less popular than Trump is. The bottom fell out of that political market with the release of the Mueller report, although Nadler vehemently disagrees with the idea that it let Trump off the hook entirely. He does, however, implicitly concede that the impeachment predicate of “cheating in the election that gave him the presidency” has disappeared. Nadler wants to focus on twelve supposed instances of obstruction of justice, but voters aren’t going to demand impeachment over what were mainly temper tantrums over a criminal investigation that got accomplished and found nothing actionable.
Nadler tells Harwood that Trump could be impeached for blocking twenty-plus probes with refusals to cooperate, but the sheer scope of the investigations raises the question of whether Nadler and others are trying for impeachment by proxy. The courts will determine just how far Congress’ power of investigation goes, but I argue in my column at The Week that House Democrats are in effect imposing a parliamentary system rather than operating as a co-equal branch of government. This might be the norm whenever voters elect divided governments if Nadler gets his way:
Nevertheless, at some point the Supreme Court will have to find a way to apply a limiting principle to congressional authority in regard to the executive branch, through Watkins or on its own. The alternative, where Congress has investigative authority without limit, promises an outcome where no executive from a competing party can possibly govern. We will have backed into a proxy parliamentary system, where the executive serves at the whim of one or both chambers of Congress.
We have already seen how that will come to pass. Committees under the control of the other party will issue subpoenas at will, enforcing those subpoenas through ruinous fines or detention through “inherent contempt” powers. There will be no dividing lines between private behavior and public action, and even normal exercise of the latter will result in endless demands for hearings and threats of self-enforced contempt actions. Even if this present session of Congress declines to go quite that far, the escalation and precedent set now will get amplified and expanded in a tit-for-tat fashion as has already been seen in the Senate’s confirmation processes for the past two decades.
Eventually, parties will simply refuse to allow any opposition White House to function. Presidents will struggle to find qualified appointees to fill roles within an administration regardless of whether those positions require Senate confirmation or not, if appointment means continuous character assassination. Even when those roles do get filled, the disincentives for action will mount to the point of paralysis — unless the party controlling the White House also controls both chambers of Congress. At that point, any exercise of oversight will have become so toxic that political parties will refuse to apply it to their own executives.
Nothing in the Constitution explicitly provides Congress with such investigatory authority. The prohibition on bills of attainder suggests in fact that Congress lacks that kind of broad prosecutorial authority unless it’s within an impeachment process. Democrats want to derail the executive without paying the political price for impeachment; the courts shouldn’t allow that strategy to succeed.
In days gone by, both branches would have negotiated in good faith to avoid involving the courts in these fights. Unfortunately, we have reached a stage of partisan warfare where negotiated norms and boundaries no longer restrain the worst impulses of activists. The courts had better tread very, very carefully in this minefield if the judiciary wants to preserve the status of co-equal branches of government.