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A House Divided Against The Senate

Back when the two major U.S. parties had differing but overlapping philosophies – when there were conservative Democrats and liberal Republicans – lawmakers placed a premium on protecting congressional power against what historian Arthur Schlesinger famously called “the imperial presidency.”

How much have things changed? So much that one of the two articles of impeachment debated by the House Judiciary Committee yesterday sets the stage for the Senate to disavow Congress’ power to summon testimony from the executive branch – and nobody on Capitol Hill seems to either notice or care. (The committee postponed an expected vote late last night but was expected to approve the impeachment articles today, which would set up a vote by the full House next week.)

For purposes of this discussion, we can disregard the merits or lack thereof of the impeachment case against President Trump. Although presidential impeachment proceedings themselves are a historical rarity (sadly becoming less rare), the House is on fairly familiar ground in charging Trump with abuse of power in his efforts to spark an investigation by Ukraine into the business activities there by former Vice President Joe Biden’s son Hunter Biden and into whatever impact those activities had on the then-vice president (and current presidential candidate) in his dealings with that government.

But the choice to include a second impeachment article – analogous to a second count in a criminal case – of obstructing Congress by refusing to allow current and former White House officials to testify in the various stages of the impeachment inquiry is apt to have consequences well beyond Trump’s presidency, however short or long that may be.

Why? Because, in all likelihood, the Senate and its Republican majority is going to vote to acquit Trump of both counts. By “acquit” I don’t mean merely failing to gain the 67 votes needed to remove the president from office; this outcome, on any and all impeachment charges, is a foregone conclusion. Acquittal means the failure of either count to receive even a 51-vote majority in the Senate. In so ruling, the Senate will be saying (at least by inference) that presidential powers include the ability to deny Congress access to executive branch personnel at the president’s discretion. Courts will be able to draw on such a result in future litigation. Trump and his successors are apt to extend this argument to congressional demands for executive branch documents as well.

This potential outcome is hardly an academic issue for Congress. Two of the last four attorneys general – Eric Holder, who served President Barack Obama, and current Attorney General William Barr – have been cited for contempt of Congress for withholding documents that House committees demanded. Both men shrugged off those citations with little consequence. The Justice Department ultimately settled a lawsuit brought by the House to enforce its subpoenas, after a judge declined to find Holder in contempt of court. Congress has the theoretical power to arrest those who defy its subpoenas, though it has not exercised that power against executive branch officials since the early 20th century. If the Senate acquits Trump on the obstruction count, a future Supreme Court may simply strip Congress of this power altogether, on grounds that Congress has conceded the issue.

This would leave Congress with little more than its power of the purse, the Senate’s control of the confirmation process, and whatever other political leverage it may have at any future date when it wants something from the executive branch. The White House could emerge from this impeachment exercise not only with Trump still in office, at least until after next year’s election, but with its power relative to Congress stronger than ever.

This makes an adoption by the full House of the Judiciary Committee’s second impeachment article institutionally reckless as well as inevitably ineffective (at least as far as removing Trump from office is concerned).

When Bill Clinton was the subject of impeachment proceedings, independent counsel Kenneth Starr recommended 11 possible grounds, including abuse of authority by (among other things) invoking executive privilege. The House Judiciary Committee recommended four articles of impeachment, one of which was “abuse of power” by refusing congressional demands for documents. But the full House only approved two articles: one for perjury and one for obstruction of justice. Both related to false testimony Clinton allegedly gave and solicited in a civil lawsuit brought against him by Paula Jones. The Senate ultimately acquitted Clinton, although just barely, on a 50-50 tie, on the obstruction count. Like Trump, Clinton was tried before a Senate controlled by his own party, and there was never any serious prospect he would be removed from office. And unlike Richard Nixon, who was arguably the most imperial president we have ever had, Clinton refused to step down to avoid a House impeachment vote and a Senate trial.

You can draw your own conclusions about the impeachment of our current president. We won’t know for a while how lengthy or elaborate a Senate impeachment trial early in 2020 is apt to be. Press reports indicate that Trump would like to mount a full defense. Senate Majority Leader Mitch McConnell may favor a shorter proceeding in which the House makes its case against Trump and the Senate, if unpersuaded, simply votes at that point. Either way, bringing the obstruction of Congress charge against Trump in a forum that is likely to end in acquittal may be a tactic that future legislators in both houses and both parties will have cause to regret.

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