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The Democrats’ Fatal Impeachment Error

Attorney General William Barr so badly misled Congress and the public about the contents of Special Counsel Robert Mueller’s report—about the nature of President Trump’s improprieties—that Mueller, we now know, took the rare step of documenting his displeasure and sharing it with his superiors at the Department of Justice. Mueller in effect lit the fuse of an explosive scandal that has now detonated.

But as has been the case every time damning new information about this administration has come to light this year, congressional Democrats don’t seem to know what to do with it. House Judiciary Committee Chairman Jerrold Nadler demanded a copy of Mueller’s letter to Barr from DOJ, and insisted Mueller be allowed to testify to Congress. But the letter at that point was practically guaranteed to surface in full, and Democratic leaders have been demanding Mueller’s testimony for weeks.

Other Democrats have called upon Barr to resign, some have even suggested he should be impeached. But they have been unable or unwilling to treat the development as more than an isolated confirmation of Barr’s well-documented deceit. The significance of the discovery—what does it mean that Barr set about to “undermine a central purpose for which the Department appointed the Special Counsel” on President Trump’s behalf?—has eluded them. Because it, like other recent developments, confronts them with a choice they have tried desperately to avoid.

The Democrats’ halting response to the Trump administration’s mounting abuses of power has called to mind for me not the obvious historical parallels like Watergate, but the early days of the Obama administration and the way Republicans then managed to wrongfoot the majority party from a position of political and moral weakness.

“We worked very hard to keep our fingerprints off of these proposals,” then-Senate Minority Leader Mitch McConnell explained in 2011. “Because we thought—correctly, I think—that the only way the American people would know that a great debate was going on was if the measures were not bipartisan. When you hang the ‘bipartisan’ tag on something, the perception is that differences have been worked out, and there’s a broad agreement that that’s the way forward.”

McConnell was referring to the Democratic legislative agenda, but the insight applies just as neatly to everything Congress does: from advice and consent, to oversight, to impeachment. If one party objects in unison, the other party must choose between forging ahead on a partisan basis or dissolving into recriminations. It’s the throughline that connects the Republicans’ forever war against the Affordable Care Act with the crises they manufactured throughout the Obama years and the House Democrats current paralysis before the levers of exectuive-branch accountability they control.

Leading Democrats set themselves up for this dilemma before last year’s midterms, when they first announced that they wouldn’t impeach President Trump without Republican support. Republicans have used the power this ceded to them to send Democrats scrambling to avoid the confrontation the Constitution calls on them to join—even at the cost of helping Trump win four more years in office.

Trump has made no secret of his desire to nullify Congress’s power to investigate him, and in the past 72 hours he’s come terrifyingly close to prevailing, with congressional Democrats’ complete acquiescence.

This past weekend, Barr informed House Democrats that he would not attend a scheduled Thursday Judiciary Committee hearing if Democrats insisted on allowing the committee’s staff counsel to interrogate him, or on receiving a private briefing about redacted portions of Special Counsel Robert Mueller’s report.

Second, Trump himself, along with his children and his private business, filed suit against two of his lenders, Citibank and Deutsche Bank, to enjoin them from complying with congressional subpoenas for his financial information, on the audacious and fictitious grounds that Congress can’t investigate a private citizen.

The sum of these actions and others preceding them amounts to the position that Trump is completely above the law, and can even dictate the terms by which Congress oversees his administration. Trump can’t be indicted because he’s president, Congress can’t learn what he might be indicted for were he not president because his attorney general doesn’t want to talk about it, and in any case a great deal of his criminal conduct is a private matter supposedly beyond Congress’s reach.

Against this backdrop, House Democrats convened after a two-week recess and boasted that they spent not a moment discussing whether the president’s conduct is tolerable. House Speaker Nancy Pelosi subsequently led a delegation of Democratic leaders to the White House for a “very productive meeting with the president of the United States” about a bourgeoning $2 trillion infrastructure plan.

Democrats have allowed their fear of taking a lonely stand to metastasize into the complete collapse of the last-remaining mechanism of presidential accountability. They are also apparently willing to sidestep a debate over this decision by executing a Trump-like pivot to infrastructure, but in a manner that seems destined to provide Trump a political boost. What president wouldn’t salivate over the prospect of having $2 trillion at his disposal to rebuild the country’s failing infrastructure during an election year?

It didn’t have to be this way. Instead of preemptively abdicating the impeachment power, Democrats could have announced that they would not allow Republicans to quietly nullify it to protect Trump from accountability. Instead of conceding that, absent bipartisanship, “there will be no impeachment, no matter how high the crime or serious the misdemeanor,” they could have lamented that in a polarized time, when the right wing is drowning in propaganda, impeachment might have to be deployed as a partisan tool—a means of collective accountability for the high crimes and misdemeanors of a derelict president whose party has enabled him. Republicans might keep Trump in power, but they would have to vote on the proposition that his obstruction of justice, his felonious conduct, his betrayal and looting of the country is acceptable behavior in a president.

It bears repeating that there’s no consequence-free way for Democrats to take impeachment off the table. This is what the post-election panic about “normalization” was all about. Responding to his historic depredations with the ordinary tools of congressional oversight doesn’t just look weak, betray the anti-Trump resistance, and invite Democrats to make fatal diversionary missteps. It also invites a terrifying moral hazard into our political system. Trump’s opportunities to obstruct justice weren’t and aren’t limited to the Russia investigation—there are many more Trump-related investigations, including several under the supervision of an attorney general who has already asserted that Trump’s obstructive acts aren’t criminal. The Democratic bias toward inaction invites Trump to sabotage all of them.

It also invites Trump and his surrogates to solicit foreign autocrats and oligarchs to commit more computer crimes against his Democratic opponent. It invites Republicans in Congress to help Trump complete his coverup and enable his corruption, while they treat him as a righteous victim and (laughable as it sounds) lay claim to the mantle of ethical governance.

The combined effect of all this will be a cacophony of Benghazi-like propaganda hearings about SPYGATE and the Deep State, staged with the complete cooperation of William Barr, that drowns out Democrats as they waste months in court trying to enforce the subpoenas he and Trump proudly flout.

The last best hope for avoiding this nightmare scenario is for Democrats to find an onramp to impeachment in spite of their misgivings. Between their anti- and pro-impeachment poles, some Democrats, including former Vice President Joe Biden, have allowed that Trump’s stonewalling tactics might leave Democrats no choice but to begin an impeachment process reluctantly.

To be clear, the reluctance is unwarranted and the delay is harmful. The Democrats’ palpable impeachment panic, set against the GOP’s unwavering claims of vindication and lust for revenge, has moved public opinion away from impeachment, and that view will harden in the very districts Democrats think they’re protecting. Likewise, if Democrats move to impeach Trump on the basis of his stonewalling alone, it will convey a petty lack of principle and a sense that his documented misconduct is not itself the problem. But it would at least bring us into the realm of appropriate recourse—into an arena where we can learn that Robert Mueller has accused William Barr of sabotage, and the question of what to do about it has an obvious answer.

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