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Jerry Nadler Should Go Rogue

To support the impeachment of the president without the backing of the House speaker is a bit like beginning a chess match without a queen. Nancy Pelosi largely controls what the House will and will not consider, and she will not consider impeaching President Trump unless public sentiment or the political dynamics within her caucus change.

For that reason, impeachment supporters have tried—with some success, but not enough—to drive those measures in a pro-impeachment direction. Just a few months ago, Rep. Rashida Tlaib (D-MI) found herself at the center of a storm of fake outrage for saying Congress should “impeach the motherfucker,” and only a few members of Congress and political commentators were willing to defend her. Today, the overwhelming majority of Democrats in the country support impeachment, as do vocal segments of the conservative legal and political establishments, and at least one Republican congressman. When activists urge citizens to call their representatives and tell them to support impeachment, the goal, stated or unstated, is to change Pelosi’s political calculation.

As worthy as these efforts are, they are not the most direct lines of attack. What impeachment supporters seek isn’t an immediate House floor vote on articles of impeachment, but an inquiry, run through the House Judiciary Committee, that would end with the referral of suggested charges to the full House, or with no action at all. Recent reporting suggests the chairman of that committee, Jerry Nadler, already supports beginning such an inquiry. The shortcut to impeachment, then, isn’t more aggressive, bank shot efforts to force Pelosi’s hand, but for Nadler to simply defy her.

In the realm of Capitol politics, this would be the largest seismic event since House conservatives drove then-Speaker John Boehner into retirement, and it would be all the more stunning because House progressives are known to be far less rebellious than their GOP counterparts on the right. It also wouldn’t be the ideal way for the House to enter an impeachment process. But it would immediately change the course of House action from its current path of ambivalent excuse-making to one of direct confrontation with Trump.

Nadler could do this abruptly or he could attempt one last time, using more aggressive tactics, to bring the Democratic leadership on board before acting by fiat. His power stems from the fact that no written rule or law prevents him from beginning an impeachment inquiry whenever he wants.

That’s not how the Nixon or Clinton impeachment processes began. In both cases, the House voted to instruct the Judiciary Committee to begin an impeachment inquiry, which is why Pelosi has been the focal point of so much pro-impeachment activism. But those votes were largely unnecessary—symbolic statements meant to put the White House on notice that the president faced serious constitutional peril. As Charlie Savage and Nicholas Fandos explained last month, Nadler could begin impeachment proceedings against the president unilaterally, the same way past chairmen have begun impeachment proceedings against judges, and the best Trump could do would be to make a dilatory and losing argument in court that Nadler’s inquiry lacked legitimacy.

This isn’t how impeachment supporters would like an impeachment process to begin. It would antagonize other committee chairmen, whose separate inquiries would likely end up redirected into the impeachment process (Trump commits a lot of crimes). It would end run the caucus’s decision making process, and put scared Democrats from closely contested districts in the spot they’ve been trying to avoid. But it would also force Pelosi and her members to decide, whether they stood with Nadler or Trump, which would be a unifying choice on its own.

Nadler doesn’t have an unruly temperament, but he is in many ways ideally suited to make a power play like this. He has served in the House for nearly 30 years, and is an accomplished, scholarly, respected legislator. The only political risk he faces as an elected representative is hypothetical: a surprise, AOC-like primary challenge from the left. And he has compelling interests in forging ahead over Pelosi’s objections.

Many of the House Democrats who have publicly called for an impeachment inquiry serve on his committee. Pelosi’s opposition to impeachment has placed Nadler in the difficult position of denying his committee members the inquiry he and they believe is necessary. But more importantly, it has damaged the committee as an institution. By forming House strategy based on the conclusion that impeachment shouldn’t happen, Democratic leaders have abandoned their chairmen to let Trump run roughshod over them. They have been inhibited from defending their prerogatives aggressively because confrontation with an increasingly lawless Trump might leave them no choice but to impeach him, and they have already foreclosed that option. Nadler has thus secured testimony from zero of the special counsel office’s witnesses, and zero of its prosecutors. He has been reduced to hosting a hearing with Richard Nixon’s former White House Counsel John Dean, and former federal prosecutors who had nothing to do with the Russia investigation. He surely does not want to wind down his career as the chairman who proved that the House Judiciary Committee could be contemptuously defied without consequences. But to vindicate his committee and the rule of law, he’d have to be willing to wield power aggressively.

The good news for him is he wouldn’t have to go rogue alone. Nadler could flip this switch today, all by himself, if he wanted to, but he could also make use of the fact that dozens of Democrats—more than enough to grind House business to a halt—would have his back. The mere threat of coordinated action would likely be enough to force House leaders to stop whipping against impeachment and start whipping for it. With their support, the House could pass a resolution in support of his inquiry, and neutralize Trump’s last defensive weapon against the impeachment inquiry he plainly fears.

Nadler’s alternative is to keep losing internal arguments with Pelosi while Republicans pocket the precedent that their administrations are immune from congressional accountability. If reports about this rift are true, then Nadler’s already most of the way there—all that’s missing is the public encouragement and pressure to do what he already knows is right.