Donald Trump’s attorneys have filed their brief contesting a congressional subpoena seeking Trump’s financial records, and the contents of that filing might as well be titled “We double dog dare you to impeach.” Short of impeachment, Trump’s attorneys argue, Congress has no authority to investigate criminal behavior on the part of the executive … and yes, that includes Watergate and Whitewater.
As USA Today reporter Brad Heath details, the argument from Trump’s lawyers is that the Constitution gives the authority to investigate criminal matters exclusively to the executive branch. That would be the same people who have already said that they are not allowed to bring charges against Trump. Which is handy.
In this filing, Trump’s attorneys are claiming it’s not a matter of whether or not Trump broke the law. The argument here is that even if he did, Congress can’t do anything about it, because “Congress is simply not allowed to conduct law-enforcement investigations of the President, and the district court’s invocations of Whitewater and Watergate do not suggest otherwise.”
Actually, Whitewater and Watergate would seem to be pretty good indications that the Congress can launch just such an investigation. Except, argue Trump’s attorneys, those cases did not involve subpoenas issued by Congress that were “resisted” or “litigated.” In other words, Watergate and Whitewater aren’t good examples, because Richard Nixon and Bill Clinton are wusses who didn’t fight hard enough to obstruct the progress of congressional investigations. Or, as Trump declared when talking about Nixon, “He left. I don’t leave. Big difference. I don’t leave.”
The fact that Trump’s attorneys note that Congress could also seek to examine the accounting records of Supreme Court justices is a good indicator that the White House isn’t about to stop before Justice Beer gets a chance to comment on this case, but there’s one point that the documents make even more clear: Everything they’ve said about Congress’ power to subpoena or investigate Trump goes by the wayside if the House opens an impeachment inquiry.
This argument is, not at all coincidentally, the one that was being pressed by Republican Reps. Mark Meadows and Jim Jordan at recent House hearings. Because Trump is convinced that an impeachment inquiry would be a good thing. And his actions are designed to make it happen.
The argument that opening an impeachment inquiry would guarantee a better reception of congressional subpoenas in court has also been one of those ideas pushed by the Democratic chairman of the House Judiciary Committee, Jerry Nadler. And he’s not wrong. As Trump’s attorneys point out in their filing, the one absolutely clear ruling showing that Congress does have the authority to seek testimony and documents in an investigation came during Watergate, and in that case, the D. C. Circuit Court was explicit in saying that the Congress had opened an impeachment inquiry. The court did not say that, had there not been such an inquiry underway, the subpoena would have been rejected. But because it was noted, everyone seems to accept the idea that this single unchallenged example is enough to prove, “Want investigative authority? First open an impeachment inquiry.”
As Politico reports, Trump’s “trash talking” of Congress and House Speaker Nancy Pelosi is intended for the same purpose: to goad Democratic leadership into signing on to beginning an inquiry. Because Trump has seized on the fight between Bill Clinton and the Newt Gingrich-led Republican House and “how a cascading series of investigations helped propel President Bill Clinton to a second term in 1996 and then led to historic setbacks for House Republican[s] in the 1998 midterms when they ran on a platform to impeach the Democratic president.” According to the people around him, Trump is convinced that Democrats won’t be able to come up with anything that the Republican Senate can’t dismiss with enough scorn to turn any inquiry into a “big win” for Trump.
So Trump isn’t just obstructing the House investigation into his actions and throwing every possible roadblock in the way of anyone seeing his financial records. He’s also actively taunting Democrats, implying that they don’t dare impeach someone as popular, and successful, and handsome as Trump … while getting both his attorneys and his congressional proxies to dangle “start an inquiry if you want to learn anything” candy in front of them.
There are only a few things wrong with this plan.
First, just because Trump is convinced something is true does not make it so. See the climate crisis. See trade policy. See … anything at all. An impeachment inquiry wouldn’t even have to generate new material. If it could simply get enough of the public to tune in to what has already appeared in the Mueller report, it might move the public opinion dials far enough that even the Mitch McConnell-led Senate would have a hard time closing its eyes.
Second, pushing Democrats into opening an inquiry because their subpoenas are proving ineffective without it first requires that those subpoenas be ineffective. And, so far, that hasn’t been the case. After all, Trump’s attorneys are making their “Congress can’t do nuttin’” argument as part of an appeal. Short of being thrown a life preserver through the intervention of the court McConnell helped him stack, Trump is likely to find that no federal court is going to be in agreement with the position taken by his legal team. William Barr may believe in an all-powerful autocrat with a license to rob, cheat, and kill. No one else does.
Third, Trump doesn’t understand the nature of impeachment. Opening an inquiry isn’t the same thing as bringing articles to the floor of the House. If Nadler and others sway Pelosi into saying the I-word, it doesn’t mean that Trump is going to get to take a seat in the Senate while Republicans conduct a roast of the House speaker. It only means that any argument that congressional subpoenas lack authority will no longer be an argument. And those financial records will all come tumbling out.
And fourth … there’s always the chance they could impeach the bastard.