Eight years after House oversight went dark, Democrats will soon have the chance to bring out the big spotlights and see what the cockroaches have been up to.
Their mission starts with bringing some accountability to a president and his entourage that have had none so far. (See, for instance, this excellent list of arguably the top 12 priorities, from the Washington Post’s Colby Itkowitz.)
But there is also a tremendous need for public exposure of failures of American government and corporate leadership that pre-exist Trump, and will almost certainly continue to plague the country once he’s gone.
Over the next few weeks, I’ll be asking a number of experts what they consider some of the top priorities for congressional oversight.
Let’s start with climate change.
I had a chance to speak to environmental activist Bill McKibben the other day. His group, 350.org, is having extraordinary, global success with online campaigns, grassroots organizing, and mass public actions to oppose the fossil fuel industry and push for urgent action to slow climate change.
He despairs of any meaningful U.S. legislative action in the near future. “I’m not convinced at this point that there’s political space in our nation for us to deal effectively with the issue at anything like the scale and pace that it demands,” he said.
But he sees huge potential for congressional oversight.
“Getting someone in the administration to answer why we got out of the Paris Climate accord? That would be great,” he told me.
“I would love to have someone grilling the auto industry about why they’re trying to gut Obama’s mileage regulations,” he said. “It’s a classic example of short-term thinking.”
But the most essential step would be to follow up on reporting by Inside Climate News and the Los Angeles Times that Exxon had conducted extensive scientific research confirming the dangers of climate change, even as it publicly spread disinformation and denialism.
Hauling fossil-fuel executives in for congressional hearings? “The power of that is clear,” he said. “That was the thing that helped bring the tobacco industry to heel was the picture of those guys standing there with their right arms raised declaring to Congress that tobacco is just fine for you.”
Looking at how we’ve come to eject presidents across more than two centuries—using means from the partisan to the personal, the institutional to the ad hoc, the fair to the foul—shines a different light on the American political experience. The overwhelming focus politicians, pundits, and scholars put on electing leaders needs to be balanced by attention to the odd mix of elegant and distasteful ways those leaders have left office. Through design or improvisation, presidents have been (or can be) ousted by voters, rejected by their own parties, removed in place by opponents or subordinates, dismissed preemptively, displaced by death, taken out by force, declared unable to serve, or impeached and removed.
Another excerpt, about Andrew Johnson, appears today at Politico. It describes how Johnson, who was impeached by the House but not convicted and removed from office by the Senate, was nevertheless hobbled by his political opponents. Priess writes:
Most of the same mechanisms used to undermine him remain in others’ toolkits today, which means it’s equally true now as it was under Johnson: You don’t have to formally eject an unpopular or unfit president from the White House if you can use various other means to limit the damage he is causing to the country.
Priess is a former CIA analyst and briefer whose previous book, The President’s Book of Secrets, was a history of the Presidential Daily Brief. He is a visiting fellow at the National Security Institute (NSI) at George Mason University’s Antonin Scalia Law School.
The NSI, which hosted a discussion with former director of national intelligence James Clapper and former CIA head Michael Hayden that I wrote about a couple weeks ago, serves as a sort of think tank for the right-wing deep state in exile.
As Elizabeth Holtzman recalls, “there was no will on the part of the House leadership” to start impeachment proceedings against Richard Nixon in the fall of 1973.
Then, on a Saturday night in October, Richard Nixon ordered his attorney general to fire the Watergate special prosecutor. The attorney general and his deputy both resigned rather than do so. They called it the “Saturday Night Massacre.”
And suddenly, “the country was up in arms,” Holtzman writes in her new book, The Case for Impeaching Trump. “The American people demanded action from Congress.” The House Judiciary Committee’s investigation, which would eventually lead to impeachment proceedings, began days later.
The lesson there: That supporters of the impeachment of Donald Trump shouldn’t look to the newly empowered House Democrats for leadership – but should be prepared to demand that they take action.
That’s one of many takeaways from Holtzman’s book, which examines — and advocates for — Trump’s impeachment through a Nixon lens. Holtzman, something of an Alexandria Ocasio-Cortez of her time, served on the House Judiciary Committee during Watergate and went on to a long career as a prosecutor.
Another takeaway, this one considerably more worrisome for impeachment supporters, is that Nixon’s impeachment only happened because “despite President Nixon’s reprehensible conduct, the rest of the system worked and could function as a real check on a rogue president.”
Republican judges “put aside party for country and the rule of law.”
Congress and the press worked: “The Senate Watergate Committee uncovered key facts about President Nixon’s misconduct, and the Senate Judiciary Committee forced the appointment of the special Watergate prosecutor. The House Judiciary Committee voted on a bipartisan basis to hold the president accountable.” Journalists were “bold in searching out the facts and relentless in reporting them.”
By contrast, Holtzman asks:
Will this happen again if we grapple with the Trump presidency? Will the other checks fall into place, including the courts and the Congress? Will the right-wing press, a mouthpiece for President Trump, find its footing on the truth? Will the bulk of the American people still put country over party and person? The answers to these questions are unknown, but they may be the key to whether America retains its vibrant democracy.
Although all that remains very much in question, Holtzman proceeds to lay out a thorough, aggressive, and quite convincing case that by any normal or reasonable standard, Trump has committed several “great and dangerous offenses” that merit impeachment.
Three offenses make it to the top of her list.
On the Russian assault on our election in 2016, she writes:
There are only two suitable responses: unequivocal condemnation and a vigorous defense. President Trump has done neither. His outright refusal to defend and protect us against these attacks is a potentially impeachable failure “to preserve, protect and defend the Constitution of the United States,” which rests above all else on the fair and honest election of a president, vice-president, and members of Congress.
On preventing, obstructing, impeding, and abusing the administration of justice, she writes that Trump has
unremittingly sought to manipulate our justice system to protect himself and his family and to punish his enemies—and has persistently tried to deceive the American people about his intentions and actions.
And on bribery and emoluments:
He has refused to separate himself from his business interests, which have received things of value from foreign and US governments, ranging from Chinese trademarks to payments for the use of his Washington hotel, suggesting that the presidency is open for business and that his personal business interests may influence his governmental decisions—all apparent violations of the emoluments clauses of the Constitution and possibly the ban on bribery as well.
Dershowitz – the Harvard Law professor whose transformation from Democratic firebrand to Trump defender is a puzzle – badly misreads the Constitution’s language on impeachment, Holtzman writes.
Dershowitz seeks to transform impeachment into a criminal proceeding, importing the trappings of a criminal trial into the process, including a requirement that a president’s guilt be proven beyond a reasonable doubt. He argues that the Constitution’s “explicit words . .. require conviction of a specified crime as a prerequisite to impeachment.” In fact, no words require that, nor has any impeachment proceeding against a president ever raised that as a condition.
Instead, Holtzman quotes Yale Law School professor Charles L. Black Jr., in his iconic 1998 book, Impeachment: A Handbook:
I think we can say that high Crimes and Misdemeanors, in the constitutional sense, ought to be held to be those offenses which are rather obviously wrong, whether or not “criminal,” and which so seriously threaten the order of political society as to make pestilent and dangerous the continuation in power of their perpetrator.
“It was a political decision made by a judge,” Trump said of the pipeline ruling. He was talking to reporters outside his helicopter in what the Washington Post called an airing of grievances and a spewing of insults “at a wide array of targets”.
Trump also expressed contempt for the 9th Circuit Court of Appeals, which blocked his termination of the DACA program on Thursday. “You never win in the 9th Circuit if you’re on this half of the equation — when I say half, it could be half or more,” he said.
He concluded: “So this whole thing, it’s a terrible thing what’s happening with the courts.”
But Trump’s argument — that the federal judiciary cannot be trusted to render justice apolitically — is deeply corrosive to the American democratic system, which relies on the judiciary to be independent of the two other branches of government.
It’s also a common first step from democracy toward authoritarianism.
“You don’t attack judges for their decisions in that way,” said Caroline Fredrickson, president of the progressive American Constitution Society. “Whenever something comes back wrong, in his opinion, it’s because a judge is Mexican, or a ‘so-called judge’,” she said.
In February 2016, Trump attacked U.S. District Court Judge Gonzalo Curiel, who was presiding over two civil fraud lawsuits against the defunct Trump University. “I’ve been treated very unfairly by this judge. Now, this judge is of Mexican heritage, I’m building a wall!” he said. Curiel was born in Indiana to Mexican parents.
When U.S. District Court Judge James Robart blocked enforcement of Trump’s initial Muslim travel ban, Trump tweeted: “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”
Those are only two of many examples of Trump’s attacking the judiciary.
Fredrickson explained: “People criticize decisions all the time, that’s just a natural thing. But they usually argue with the legal reasoning. Attacking the judge personally, especially when it’s the president doing it, really undermines the status of our judges.”
Trump, she said, is carrying out a two-part strategy to bend judges to his will. “You do it by calling the ones who disagree with you political, and you do it by making the ones who agree with you dominate the judiciary.”
Trump is, in fact, in the process of packing the courts with judges who have to meet a far-right litmus test, and his successful battle to install Justice Bret Kavanaugh, in particular, went a long way to eroding the public’s confidence in a non-political judiciary.
Trump noted on Friday that he is “slowly putting new judges in the 9th Circuit”. He has made a staggering 26 appointments in total to the appeals courts. And the 9th Circuit is considered to be the most liberal of them all.
Article III of the Constitution provides three concrete guarantees of independence for the judicial branch, including lifetime tenure, so they cannot be fired. This review on judicial independence and Trump’s attacks on it, which I helped write for Protect Democracy last year, is a useful resource.
In contrast to his anger over the pipeline decision, Trump expressed satisfaction that the 9th Circuit had issued a ruling blocking him from immediately terminating the Deferred Action for Childhood Arrivals (DACA) program, which protects immigrants brought illegally to the U.S. as children from deportation
“The good news is, by rejecting DACA in the 9th Circuit yesterday, finally, we’ve been waiting for that, we get to the Supreme Court,” Trump said. “And we want to be in the Supreme Court on DACA.”
Trump also on Friday questioned the legitimacy of the ballot counting in Florida, where a margin of less than 0.5 percent separates Republican challenger Rick Scott and incumbent Democrat Bill Nelson. “What’s going on in Florida is a disgrace,” he said, and in a tweet he described the process as a fraud. He also tweeted an accusation of fraud in Arizona, even suggesting: “Call for a new Election?”
Undermining confidence in the electoral process raises the distinct possibility that he, or at least his base, would reject any result that isn’t in the Republican’s favor.