Molly E. Reynolds: How will the House respond to Trump’s constitutional escalation?

(Anna Moneymaker | The New York Times) Adam Schiff, a leader of the House impeachment inquiry, on Monday, Oct. 7, 2019, after the Trump administration barred Ambassador Gordon Sondland from being interviewed.

The defiant letter sent from the White House counsel, Pat Cipollone, to Speaker Nancy Pelosi and the heads of three House committees adds another large brick to the wall of obstruction against efforts by the House to investigate President Trump.
It is largely cloaked in procedural language and includes wide-ranging criticisms of the House’s approach — many of them with substantive shortcomings. It is also troubling for what it signals about the White House’s view of congressional authority.
But its fundamental purpose is much broader. The letter is aimed at reshaping the terms of the political debate between the White House and the House of Representatives, providing a frame for Republicans in Congress and beyond to push back against the inquiry. The White House’s allegations that congressional Democrats plainly seek to “reverse the election of 2016 and to influence the election of 2020” reflect this, as does their heavy focus on the House Intelligence Committee chairman, Adam Schiff of California, who has emerged as the public face of the Democrats’ investigative efforts.
And the fact is, even if the House adopted a resolution authorizing an impeachment inquiry, it’s nearly impossible to imagine that the White House would change its posture toward the House’s investigation.
On their face, many of the procedural arguments are shaky. The letter states, for example, that the inquiry is “constitutionally invalid” in part because previous impeachment inquiries included an authorizing vote of the House. But neither the Constitution nor the Rules of the House require such a vote. Congress, as the Constitution states in Article 1, Section 5, has the power to “determine the Rules of its Proceedings” — including in the context of impeachment. The Supreme Court has been deferential to that power.
The letter also criticizes the Democrats’ approach to subpoena power and argues that ranking minority members on committees had greater influence over subpoenas in previous impeachment inquiries. That claim ignores profound changes in recent years in how the House approaches subpoenas — some of which were put in place by zealous Republicans during their investigations of the Obama administration.
Finally, the letter states that if House Democrats “return to the regular order of oversight requests, we stand ready to engage in that process.” But it ends by asking House Democrats to “abandon the current invalid efforts to pursue an impeachment inquiry and join the President in focusing on the many important goals that matter to the American people.”

The calls for process change, then, aren’t to be taken seriously as an inducement of some kind of mutual accommodation on the part of Congress and the executive branch.
So why might the White House pick this moment to escalate its political fight? One possibility is that with some polls indicating growing support for impeachment, the president believes that the sooner a floor vote on impeachment happens — even one on authorizing the inquiry and not on any articles themselves — the more likely congressional Republicans are to remain unified or nearly so on the president’s side. If more information about the conduct of President Trump, Secretary of State Mike Pompeo, Vice President Mike Pence or other administration officials is revealed, some House Republicans may find themselves feeling pressured to vote to at least authorize an inquiry.
For the Democrats, the White House arguments may force procedural shifts. Historically, Congress and the executive branch have sought mutual accommodations over witnesses and documents — or as Tom Davis, Republican of Virginia and former chairman of the House Oversight and Government Reform Committee, put it recently, “you ask for the moon and end up with a moon rock.” Now House Democrats may feel less compelled to pursue that kind of compromise and proceed directly to subpoenas, even if compliance has increasingly required slow-moving federal court proceedings. (For example, the House Judiciary Committee’s lawsuit to enforce a subpoena against the former White House counsel Don McGahn, filed in August, will not receive a federal court hearing until Oct. 31.)
Will Ms. Pelosi hold an authorizing vote? It’s not likely in the aftermath of the White House letter, because it would most likely be portrayed as caving to the White House’s demands and yielding power over the congressional agenda to the president. That said, now that a vast majority of her caucus members have gone on record in support of an inquiry, the political costs to vulnerable rank-and-file Democrats of casting a pro-impeachment vote have probably gone down. Members who are concerned about the electoral implications of their votes will most likely already have to face those consequences.
In addition, Democratic leaders may wish to reserve the ability to keep the “impeachment umbrella” as wide as possible — perhaps to include material from the Mueller investigation — and avoid defining it more narrowly in the text of a resolution. As the House general counsel, Doug Letter, argued in federal court on Tuesday, in reference to the inquiry, “I can’t emphasize enough, it’s not just Ukraine.”
The Democrats’ next steps must reflect a fundamental truth about impeachment laid bare by the White House’s letter: Impeachment is a political process, not just a procedural fight.

Molly Reynolds

Molly E. Reynolds is a senior fellow in governance studies at the Brookings Institution and the author of “Exceptions to the Rule: The Politics of Filibuster Limitations in the U.S. Senate.”
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