First, House Speaker Nancy Pelosi (D-Calif.) and Schiff appear confident, calm and serious — in glaring contrast to Trump. Second, in a joint news conference they vowed to protect the whistleblower from Trump’s threats to unmask the person and intimation that violence is the appropriate response to a “spy.” Third, and perhaps most important, they are going to take “no” for an answer in response to subpoenas, sort of.
As to the subpoenas, Democrats are not going to go to the bother of voting to hold witnesses in contempt or even going to court to seek enforcement of the subpoenas. That proved to be a huge waste of time in the context of the House Judiciary Committee’s investigations, in large part because the committee lacks an enforcement mechanism, at least one readily available. Former prosecutor Renato Mariotti tells me, “Schiff is making the smart move by pushing forward. Litigation can take a long time to work its way through the courts, and waiting on the legal system could derail the investigation and lose momentum as the 2020 campaign season progresses.”
Constitutional scholar Laurence Tribe agrees. “I think the Intelligence Committee is doing exactly what the situation calls for by treating the refusals by [Attorney General William P.] Barr and [Secretary of State Mike] Pompeo to let people testify as obstruction of Congress plain and simple,” he says. “If the Trump cabinet members or other officials want to go down the path of the third Article of Impeachment against Richard Nixon, that’s a choice the Democratic committee chairs are sensibly leaving to them. The chairs would play into the hands of the stonewalling Trump administration by taking Trump officials to court to seek orders compelling testimony or document production or to enforce subpoenas.” He concludes, “The days for those litigation strategies are now long since behind us.”
Moreover, Democrats would surely like all the information they are seeking, but frankly they have the key evidence that Trump pressured a foreign power to interfere in our elections and his own words threatening the whistleblower. Democrats can therefore receive refusals to respond in stride and inform the administration that this constitutes obstruction, harkening to Richard Nixon’s article of impeachment citing obstruction of Congress.
“Part of the outrageousness of this situation is that we really do not have a fully functioning, impartial [Justice Department] because AG William P. Barr appears to have a conflict and also is so partisan that he is out essentially working to help Trump’s reelection campaign,” observes former prosecutor Mimi Rocah. “If we had a real AG, people in this Administration would have to be more compliant with lawful congressional subpoenas because otherwise they would worry about criminal obstruction investigations by DOJ. That obviously won’t happen here and so they act with impunity.”
Democrats certainly have highlighted the Trump administration’s glaring conflicts of interest. In that vein, ranking member of the Senate Foreign Relations Committee Robert Menendez (D-N.J.) writes to Pompeo: “I write to urge you to recuse yourself immediately from all Ukraine related-matters. You have a direct conflict of interest given your participation in the now-infamous Trump-Zelensky call, and there are serious questions concerning your role in the leveraging of U.S. security assistance — taxpayer dollars — to advance President Trump’s personal and political agenda.” Not only does this reaffirm his own wrongdoing, but it also sets up Pompeo for obstruction claims (i.e. he is preventing testimony that would implicate himself). Whether that results in Pompeo’s own impeachment or other legal liability remains to be seen. What is clear is the portrait of a kind of crime family seeking to block investigation but hobbled by the sheer number of those implicated who now might have reason to talk.
The final “lesson learned” that Democrats are incorporating is to keep this focused on Ukraine and the coverup. Time is of the utmost urgency, both because keeping the pressure on Trump is obviously sending him into a full-scale panic where he demonstrates the necessity of impeachment and because we do not have the luxury of time to re-litigate the Mueller report. Trump is deforming the operating of government and imperiling the sanctity of our elections. The quicker he is charged, the less damage he may be able to do. (If Democrats want to investigate and add more articles later, that’s perfectly acceptable.)
If the House can either obtain the information it seeks or certify that the administration is refusing to comply, there is no reason impeachment cannot reach the floor for a vote within a month.