It is much more significant that in the meeting, Nadler, the chairman of the House Judiciary Committee, presented the case for an inquiry. The key is why he appears to have done this.
I cannot tell you exactly what drove Nadler’s thinking. But here’s a good clue.
In an interview, Rep. Jamie Raskin (D-Md.) told me there is brewing sentiment on the Judiciary Committee that without an impeachment inquiry, Democrats could suffer some losses in court in their efforts to compel the White House to cooperate with their oversight demands.
“I see a strong sentiment in the Judiciary Committee majority that an impeachment inquiry is warranted for substantive reasons, but also that procedurally, it is necessary to avoid a series of legal minefields in conservative courtrooms,” Raskin, a committee member and constitutional law professor, told me.
In this telling, an impeachment inquiry is needed, first, because it is absolutely justified on the merits, but also because it will supply the legal leverage necessary to avoid losing some of these oversight battles.
The Democratic leadership’s argument has been that an inquiry is not necessary because the House can hold Trump accountable through oversight outside an impeachment context.
But this claim has generated an intense debate, with some legal experts arguing that an inquiry would make it more likely that Democrats prevail in the coming court battles, which will settle whether they actually can effectively conduct that oversight. This has become particularly urgent, with Trump exercising maximal resistance to those oversight efforts.
It is highly significant that some on the Judiciary Committee are taking that side of the argument, because they are the lawmakers most directly involved in the legal battling over this oversight — and in the deliberations over whether to launch an inquiry.
It is additionally important that some of these committee members are beginning to fear that without this leverage, court losses in these oversight battles are more likely.
Court losses are possible
Democrats are girding for multiple court fights. They want to compel former White House counsel Donald McGahn, who witnessed extensive obstruction of justice, to testify to Congress. They want special counsel Robert S. Mueller III’s unredacted report and underlying materials from Attorney General William P. Barr. Both have defied subpoenas.
All of this is essential to fleshing out Mueller’s findings, which laid out extensive efforts by Trump to obstruct justice and evidence that Trump and his campaign actively encouraged, sought to profit off, and tried to collude with a “sweeping and systematic” foreign attack on our political system to get him elected.
Democrats are preparing to hold McGahn and Barr in contempt of Congress, after which court battles will unfold. The White House has also directed former aide Hope Hicks not to comply.
The reason to fear that Democrats could lose some battles, as Michael Stern explains, is that the courts might be more likely to decide that presidential prerogative outweighs the House’s right to the information outside of an impeachment context.
As Stern further details, it’s reasonably possible that courts could give more weight to the White House’s claims of immunity to block testimony, and to the idea that secret grand jury material in the unreleased Mueller portions doesn’t have to be given to Congress for mere oversight purposes.
Raskin said he believes the Democrats’ case is strong, but that losses are possible — particularly before the Supreme Court.
“The higher you go, the riskier it is,” Raskin told me. “We are apprehensive of the administration trying to drag everything out over a period of months and years."
“Judiciary Committee members want to break the spell that somehow Neil Gorsuch and Brett Kavanaugh are going to save us from the Trump administration," Raskin said. "That’s not going to happen. So we have to summon up all the powers that Congress has.”
An impeachment inquiry maximizes leverage
As Stern’s piece details, in an impeachment context, the courts might more readily compel advisers to testify because they are “fact witnesses to alleged high crimes and misdemeanors,” and might be more prone toward forcing release of grand jury material in a “judicial proceeding,” such as an impeachment inquiry.
Raskin agrees for bigger reasons. Impeachment hearings are the last line of defense against a corrupt president, so ruling against Congress’ efforts to gather materials for that purpose would deal an even more severe blow to the separation-of-powers scheme.
“It would be extraordinary for the federal courts to align themselves with an executive branch systematically defying congressional power during an impeachment inquiry,” Raskin said. “To rule against Congress in that context is essentially to evolve a whole new legal regime propping up an imperial and unaccountable president.”
Yes, Democrats could win
It is, of course, very possible that Democrats could win most or all these oversight battles without an inquiry. But there’s a real risk in taking the chance, due to timing: If Democrats do lose in court, and enough time has passed that we find ourselves in the fall, they might decide that it’s too late for an inquiry to maximize leverage, due to the election, and find their efforts largely frustrated — a nightmare scenario.
As Raskin put it, Trump and his advisers “figure that if we get into 2020 it’ll be too late to launch an inquiry.”
Asked whether he agreed, Raskin said: “It may be right. The pressure is clearly on to move in 2019. And in the legislative calendar there are not a huge number of days left.”