House Democrats have kicked and screamed about the White House’s refusal to allow key Trump officials to come before Congress. But they haven’t done the one thing they can do to force the issue: Go to court.
Democrats have handed out procedural slaps on the wrist — from subpoenas to contempt citations — and all have been summarily blown off by a White House claiming “absolute immunity” from congressional testimony.
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The seeming lack of results has fueled criticism among progressive lawmakers and activists. But there are real reasons for the go-slow approach: An overstretched team of House lawyers along with Democrats’ fear of an adverse court ruling that could have long-lasting ramifications.
House Democrats say they are also focused on meticulously building a record of the Trump administration’s resistance to their investigations in order to help persuade a court to rule in their favor and break the White House blockade. Rushing into it, they say, could backfire — even as angst on the left has begun to swell.
“I’m not too wild about incrementalism, but that’s where we’re at,” said Rep. Steve Cohen (D-Tenn.), a senior member of the Judiciary Committee.
That approach will continue this week, when the House votes to hold Attorney General William Barr and Commerce Secretary Wilbur Ross in criminal contempt of Congress for defying subpoenas for information about efforts to add a citizenship question to the 2020 census.
The vote will mark the first time Congress has held a Cabinet member in criminal contempt of Congress since the GOP-led House held Attorney General Eric Holder in contempt in 2012 over the “Fast and Furious” gun-walking probe.
Barr has already been held in civil contempt of Congress for failing to respond to a subpoena to testify about former special counsel Robert Mueller’s report on Russian election interference and President Donald Trump’s alleged attempt to obstruct his investigation.
Many of the Democrats leading the investigations say they’re in no hurry to put the fights before federal judges and are comfortable with the snail’s pace. They say they trust Judiciary Chairman Jerry Nadler (D-N.Y.) to pick the panel’s battles and strike when the time is right.
“Right now, we’re kind of in a wind-up phase,” Rep. Hank Johnson (D-Ga.), a senior member of the Judiciary Committee, said in an interview. “When litigation is filed, then the game begins.”
Speaker Nancy Pelosi has championed this strategy, arguing that methodical and targeted congressional investigations are the best way to hold Trump accountable. She has pointed to the ongoing probes to tamp down growing impeachment talk among members of her caucus.
Democrats acknowledge that the only way to knock down the administration’s blockade of Mueller’s obstruction witnesses — from former White House counsel Don McGahn to former longtime aide Hope Hicks — is to win in federal court. They’re mindful that the Trump administration, and former senior officials who spent hours spilling secrets to Mueller, have so far faced no tangible consequences for stonewalling the committee’s demands.
But they’re also up against a president who has vowed to fight congressional oversight at every turn, including ignoring subpoenas and absorbing contempt of Congress citations to an extraordinary extent.
“In limited defense of our wrist-slapping, we’ve never seen an administration that, across every cabinet official, from the top down throughout the administration, there was utter disdain for the rule of law,” added Rep. Jared Huffman (D-Calif.), who supports launching an impeachment inquiry. “So in a sense, they’ve laid down such a gauntlet for the Congress that we don’t have any precedent for dealing with this level of lawlessness.”
The White House’s strategy has led to lawsuits in other disputes with the executive branch — from accessing Trump’s tax returns from the IRS to enforcing a pair of subpoenas for Trump’s financial records from his accounting firm. These fights have left the House’s small legal office stretched thin.
“Unfortunately, this is the process that we must adhere to,” Johnson lamented. “It is in accordance with the rule of law, which ironically the executive branch is trampling. But we can’t get down in the mud and trample our Constitution and our laws along with the administration.”
Some Democrats also fear that despite having a strong hand in court, they might end up in front of unfriendly judges who could restrict congressional oversight powers in far-reaching ways. The line between the White House’s assertions of secrecy and Congress’ demands for information are ill-defined and have rarely been tested.
“This is very serious business, so when we go to court, we absolutely have to win,” said Rep. Ted Lieu (D-Calif.), a member of the Judiciary Committee. “So that’s why we’re making sure we have bulletproof cases when we do go to court.”
Lieu agreed that the punishments levied against the Trump administration amount to little so far. “They won’t take it seriously until there’s a court ruling,” he said.
In the meantime, Lieu and other Democrats point to the House’s court victories in unrelated litigation for Trump’s private financial records as evidence that they’re on the right track.
Last month, Nadler told POLITICO that the House would be quickly going to court to secure testimony from McGahn, one of Mueller’s central witnesses who described Trump’s efforts to thwart the special counsel’s probe.
That lawsuit has yet to be filed, but Democratic committee members said they expect to go to court by the end of the month — likely after Mueller testifies before the Judiciary and Intelligence committees on July 24.
Nadler has projected confidence about the prospects of winning the McGahn suit and says it may even benefit from the slower approach. He argues subsequent questioning of witnesses like Hicks and McGahn’s deputy, Annie Donaldson, who acquiesced to the White House’s directives that they not answer questions about their tenure in the West Wing, can pad the committee’s record and bolster its case when it ultimately sues to force McGahn’s testimony.
“It’s very useful to show the judge what this means in practical reality… what an incredible assertion of executive supremacy and of congressional irrelevance,” Nadler said.
In the meantime, Nadler appears to have the backing of his committee members.
“The chairman has a plan. I’m deferring to him,” said Rep. Cedric Richmond (D-La.), a Judiciary Committee member. “I think it’s moving.”