Pelosi’s Litigation-First Impeachment Strategy Has Its Own Risks
Pelosi’s Litigation-First Impeachment Strategy Has Its Own Risks
(Bloomberg) -- House Speaker Nancy Pelosi’s strategy of slow-walking moves to impeach President Donald Trump depends on fighting first in the courts to see how much more evidence Democrats can get.
The reality, though, is that litigation may take months or even years to play out, and pressure to act is building as time goes on. The courts may not resolve some issues by late autumn, the deadline House Judiciary Chairman Jerrold Nadler has floated to make a decision on filing articles of impeachment before election year arrives.
“I don’t believe we should depend on a third branch of government to decide whether we need to see documents and hear from witnesses,” Democratic Representative Gerald Connolly of Virginia said in an interview.
On Thursday, Connolly, chairman of the Oversight subcommittee on government operations, joined the growing ranks of House Democrats -- by some counts now more than half of the 235-member caucus -- who have called for impeaching the president or at least opening a formal impeachment inquiry. Other lawmakers say they’re hearing demands for impeachment at town halls in their districts during the August congressional break.
Pelosi has long made clear her concern that impeaching the president would only backfire politically because the Republican-led Senate wouldn’t take the next step to remove him from office. But she has pushed back on suggestions that she’s trying to stall by waiting to see what the courts decide on congressional demands for evidence.
“No, I’m not trying to run out the clock,” Pelosi told reporters late last month. But she said since former Special Counsel Robert Mueller wasn’t given broader authority as part of his Russia probe to investigate matters including Trump’s finances and personal business, that’s where congressional oversight comes in.
“And that is what we are doing in the courts,” Pelosi said, adding that this process “isn’t endless.”
Already Begun
Some House Democrats argue that they are already pursuing an impeachment inquiry through the investigative work of committees -- and they’re making that point through the arguments they’re now advancing in court.
The House Judiciary Committee filed an application on July 27 to unseal grand jury testimony, explicitly citing the House’s need “to have access to all the relevant facts and consider whether to exercise its full Article I powers, including a constitutional power of the utmost gravity — approval of articles of impeachment.”
A new lawsuit filed Wednesday by Nadler seeks to require testimony before the committee by former White House Counsel Don McGahn -- one of Mueller’s key witnesses on alleged efforts by Trump to obstruct the special counsel’s work.
“This is formal impeachment proceedings -- we are investigating all the evidence,” Nadler said Thursday on CNN.
His committee’s suit urged the court to move quickly so that the current Congress, which ends in January 2021, has the option of pursuing impeachment.
“The Judiciary Committee requires a substantial period in advance of that date to perform its constitutional duties,” according to the filing.
Other pending litigation includes the House Oversight Committee’s efforts to get Trump’s financial statements and other reports prepared by his accountant; the Financial Services and Intelligence committees’ request to obtain records from Deutsche Bank AG and Capital One Financial Corp., long-time Trump lenders, to investigate matters including potential foreign influence on the president and his family; and the Ways and Means Committee’s demand for Trump’s tax returns.
“They want to get this testimony and whatever documents they can get as soon as possible,” Saikrishna Prakash, a law professor at the University of Virginia, said of House Democrats. “But the courts do not necessarily act on the same timetable that the parties want them to.”
In instances where federal district courts might initially side with Democrats over the administration’s opposition, the White House may adopt a strategy of delay, Prakash said. The administration can seek stays of rulings, as likely appeals are filed with the circuit court and continue up the judicial chain all the way to the Supreme Court.
Price of Defiance
Some Democrats suggest that all it would take to push the House to impeach the president would be defiance of a court ruling that didn’t go his way.
House Oversight and Reform Chairman Elijah Cummings of Maryland -- one of Pelosi’s top lieutenants -- said this week that he stands with the speaker for now. But, he added, “the day that any administration disobeys a court order, then I’m for impeachment.”
Past presidents, including George W. Bush and Barack Obama, mounted years-long fights in the courts against congressional subpoenas. But those conflicts didn’t have the sweep of Trump’s pledge that “we’re fighting all the subpoenas” from the House.
For now, Pelosi believes the pending legal efforts must be made to acquire additional evidence that would build the case for impeachment beyond what the Mueller report provides, according to a person familiar with her thinking.
“I’ve been sympathetic to her point of view,” Connolly said. “I still respect her view -- that we cannot rush headlong into this.”
Connolly said he believes the 2020 congressional elections are playing a role in Pelosi’s slow-go strategy. Democrats will confront a tough task holding on to the gains they made in 2018 in Republican-leaning districts, including in areas where Trump remains popular. Many of the party progressives who have been leading the push for impeachment don’t face that challenge in their safer, bluer districts.
“If you define this as a political decision, you don’t do it,” Connolly said. “Too risky. The backlash is too big.”
“But if you define this issue as, ‘I took an oath to uphold the Constitution, how do I ignore this, in keeping with the oath I took?’” he said, “if this does not rise to the level of impeachable offenses, what pray tell, in the future will?”
Ashley Etienne, a Pelosi spokeswoman, said: “There’s not a full appreciation that the only way to get answers is through the courts at this point. Her point is this is not about politics. It’s about patriotism.”
Moderates at Home
As House members meet their constituents during their six-week break, some moderate Democrats who have opposed opening an impeachment inquiry are hinting they may be more open to the idea on their return.
At a town hall in Mason, Michigan, Representative Elissa Slotkin told an audience split on the issue this week that if Trump administration officials continued to refuse to answer subpoenas in September, the House could take “the next steps. “
Other House members -- even those who still aren’t calling for impeachment -- say they now expect Pelosi and the House to take some action before long.
“It would not surprise me if we see something happening in October,” said Representative John Larson, who hasn’t yet called for impeachment or for opening an inquiry.
Angry constituents he met at a town hall in West Hartford on Tuesday night demanded that the House take action, he said.
About half of the 200 attendees, some with banners blaring “Impeach!” were clear in their stance, he said, and many in the room turned a deaf ear to his efforts to defend the “circumspect” legal approaches being taken by Pelosi to first obtain more evidence to build the case against Trump.
“They are infuriated with the president,”’ he said. “They don’t want to hear anything but to impeach him.”
--With assistance from Erik Wasson.
To contact the reporter on this story: Billy House in Washington at bhouse5@bloomberg.net
To contact the editors responsible for this story: Kevin Whitelaw at kwhitelaw@bloomberg.net, Larry Liebert, Anna Edgerton
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