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The Guardrails Have Failed

For all it lacks in urgency, the rote approach House Democrats have taken to investigating President Trump appeared at least briefly this week to be overwhelming him. Trump abruptly threatened to harm the public interest on Wednesday unless Democrats ceased their inquiries, and House Speaker Nancy Pelosi attributed his meltdown to the fact that her efforts are dragging his finances slowly into the public light.

There is some truth to her assessment. Two federal judges this week upheld subpoenas Democrats have issued to Trump’s accountants and lenders seeking his financial information. New York State passed legislation that will allow Congress to obtain his state tax returns. The House intelligence committee just secured access to counterintelligence findings of the Russia investigation—which may include financial information. And the Washington Post revealed that the government’s tax lawyers believe the IRS will ultimately have to turn six years of Trump’s tax returns over to Congress.

House Democrats aren’t checking Trump as aggressively as they could, but Pelosi pointed to these developments as evidence that even proceeding with caution, the gravitational pull of the legislative and judicial processes will inevitably pry Trump’s most closely held secrets loose, and into the public domain.

Her vindication was short-lived.

By Thursday night, all the dangerous shortcomings of the slow-going approach had reasserted themselves. And they suggest not that the normal oversight process will be sufficient to protect the rule of law, but that the institutional guardrails surrounding the rule of law are faltering all at once, and more aggressively than at any time since Trump won the presidency.

The most alarming news came in an announcement from the White House press secretary that Trump had granted Attorney General William Barr the unilateral authority to declassify any information about the Russia investigators that he wants—including, reportedly, their sources in Russia. The breach here is stunning, and would normally generate a rebellion within the intelligence community, whose leaders are expected to be fiercely jealous guardians of their agencies’ sources, methods, and other equities. It has instead generated no pushback.

Barr’s new powers are even more alarming because of what kind of man we know he is. He has repeatedly abused his existing powers to help Trump and threaten Democrats politically, through the selective release information designed to mislead the public. We should expect him to use this new power to frame Trump’s political enemies, most of whom will be legally obligated not to defend themselves.

This wouldn’t be such a troubling risk were other institutional counterweights holding up well. But the national media has thus far proven to be an easy mark for Barr, and has shown little indication that it will treat his pronouncements with the extreme skepticism they deserve. Democrats in Congress could also neutralize this threat. Certain congressional leaders are entitled to view all the intelligence Barr is about to receive, and are immunized by the Constitution to disclose all of it. This would be a drastic step, but more than justified, both to protect Trump’s targets from selective smearing or prosecution, and to prevent the Trump administration from deploying the findings of the intelligence services for partisan political advantage. But nothing Democrats have done since Trump came to power suggests they have the fortitude to do something so extraordinary, and they will likely bind themselves to norms Trump and Barr have gleefully jettisoned.

By not acting more aggressively, House Democrats created an incentive for Trump and others to run roughshod over them. On Thursday, the Washington Post noticed the bottom-feeders of the online right circulating footage of Nancy Pelosi that had been doctored to make her appear drunk. By Thursday night, Republicans, including Trump and his servants on Fox News, were engaged in a coordinated effort to spread similarly doctored disinformation, confident that social media companies would not step in to remove the footage—at least not before millions of people had seen it—and that House Democrats would not move with any urgency to shame these companies. Just as they did three years ago, every institutional leader who has been beseeched to take the threat to democracy more seriously has taken false solace in the polls, which for now show Trump losing to every leading Democratic presidential primary contender. What could go wrong?

For a time, the growing number of anxious Democrats who support impeachment hoped that dramatic public testimony from Special Counsel Robert Mueller would galvanize the public and the party to their side, allowing Democrats to seize narrative control over the Russia investigation, and the broader question of public corruption, back from Trump. Thursday night, House Judiciary Committee Chairman Jerrold Nadler acknowledged that this is unlikely to happen.

According to Nadler, Mueller is reluctant to testify publicly, and has only agreed to testify in closed session, after which Nadler would be allowed to release a transcript of the proceedings—another multi-hundred page document almost nobody in the country will read. It’s unclear whether Nadler has agreed to these terms, but the approach Democrats have settled upon strips him of almost all of his leverage. Nadler can threaten to subpoena Mueller, but Mueller remains a DOJ employee, and is thus bound by constraints Barr might place on his his testimony. Once he’s a private citizen again, those constraints would be lifted, but Mueller can simply hold on to his appointment until Nadler agrees to his conditions.

It’s been two months since Mueller completed his report, and in working desperately to keep Congress off the path to impeachment, Nadler has managed to secure testimony from zero witnesses about it. (By contrast, former FBI Director James Comey appeared on Capitol Hill to testify two days after he concluded the Clinton-email investigation.) Nadler could have subpoenaed other Mueller investigators who have moved on to private life, he could have opened an impeachment inquiry, which would give him a forceful legal argument that he’s entitled to all the testimony and documentation he needs to determine whether the House should recommend Trump be removed from office. Democrats have decided instead to seek piecemeal rulings from courts that won’t actually yield any disclosures at least until Trump has exhausted his appeals.

Impeachment advocates worried all along that the Democrats’ dithering and self-doubt would create a number of perverse consequences: that the public would interpret their irresolution as a sign that Trump’s presidency is not a crisis; that Trump himself would fill the void of inaction with propaganda and defamation and selective prosecution, exacerbating public confusion, when the truth is actually quite simple. These fears are all rapidly materializing, and the fact that the Democratic approach is failing has yet to dawn on anyone who has the power to change course.