The problem with this tactic, obvious to those outside the Trump cult, is that it is hard to imagine the House forgoing impeachment, unless of course Trump resigns before it can. Furthermore, while the House is free to pursue contempt proceedings against Sondland and other non-cooperating witnesses, it does not have to hold up impeachment proceedings. There is nothing wrong with moving forward with multiple articles, including one on obstruction, while also seeking enforcement of a contempt proceeding against current or former officials who refuse to appear or provide documents.
Impeachment is a political process, and there is no requirement that an article based on obstruction requires a court order that witnesses must appear. Former acting solicitor general Neal Katyal tells me, “Definitely Congress can and should proceed on impeachment inquiries for the underlying offenses (Ukraine)” while pursuing remedies against non-cooperating witnesses. The House is permitted to take the White House’s refusal as its last and final position, proceed on the underlying offense (procuring foreign help in an election) based on what evidence it does have and throw the acts of defiance into the obstruction hopper.
Another option is to continue on the impeachment track without going to court at all. “I think the time has come for the House to proceed without making further detours to court or testing its powers of inherent contempt,” suggests constitutional scholar Laurence Tribe. “Even expedited judicial proceedings proceed at best ‘with all deliberate speed,’ which is legalese for ‘at a stately pace.’” He reminds us, “Article III of the Nixon Articles of Impeachment provided the model for going forward. In the Article, the House Judiciary Committee identified the systematic defiance of congressional impeachment inquiries as independently an obstruction of Congress and a violation of the president’s duty faithfully to execute and cooperate with executing the laws.”
Tribe continues: “That is exactly what should happen here. Directing the State Department to prevent Ambassador Sondland from appearing for his deposition when his information is obviously valuable in corroborating and elaborating on the whistleblower’s account would be inexcusable even if there were a relevant privilege or immunity otherwise applicable.” However, he concludes, “The fact that there is no such privilege or immunity to justify this stonewalling clinches the case for an article of impeachment, given that the underlying conduct of extorting Ukraine for the benefit of Trump’s own political survival and to help his benefactor Vladimir Putin is itself clearly impeachable.”
In short, there is more than enough evidence already and more than enough public support as we speak for the House to move to impeachment right now. To the extent over the next few weeks that it can gain further incriminating material or reveals incriminating material it possesses, the House will only bolster its case. However, nothing we have seen in the underlying evidence or the polling suggests any reason not to proceed to impeachment. To the contrary, as Joyce White Vance, a former federal prosecutor, puts it, “The president’s conduct, making foreign policy and threats by Twitter, are a strong indication that we cannot wait for drawn-out court battles on contempt of court and there is more than sufficient conduct for Congress to investigate as high crimes and misdemeanors and determine whether articles of impeachment are warranted.”
Trump, however, seems unwilling to accept the inevitability of impeachment. He rails at Democrats, but they ignore him. He resists cooperating, but Democrats slap an obstruction label on his efforts and proceed with their investigation. By fighting against the inevitable, acting more illogical and unhinged than usual and refusing to give Senate Republicans reason to support him, his current strategy only makes it easier for more Senate Republicans to break with him in a trial for removal. His flailing just heightens the perception among voters that one way or another, this guy has to go.
So what should Trump be doing? Trump is not capable of separating his ego and insatiable need to avoid criticism from his defense strategy, but a more rational president would either urge Republicans to pursue a lesser punishment (e.g. censure), start bargaining to leave after his term is over (i.e. not run for reelection) and/or prepare for a lengthy, time-consuming Senate trial in an effort to run out the clock. Democrats should not be dissuaded by any of these stratagems, although from Trump’s perspective, they offer a chance for avoiding the humiliation of impeachment and a bipartisan majority in favor of impeachment in the Senate.