Can Trump be subpoenaed in the investigation? Not without a court case going all the way to the Supreme Court. The court has never ruled if a president can be subpoenaed in a grand jury, and The Washington Post’s Fact Checker described it as a “thorny legal thicket.” We could presume the same holds for a subpoena from Congress. Even if they could subpoena Trump, Democrats have no illusions that he would talk, considering how many White House officials have ignored subpoenas.
As the House Judiciary Committee begins hearings next week on writing articles of impeachment, they’ve invited Trump and his lawyers to join and even question witnesses. He’s expressed no interest.
Why hasn’t Trump’s personal lawyer Rudolph W. Giuliani been subpoenaed? Possibly because he’s Trump’s private attorney and could try to avoid talking by saying everything he knows would be protected by attorney-client privilege (There’s some dispute that it would be, though). Democrats have also been more focused on talking to past and present government officials. Trump’s personal lawyer can take the lead on defending the president in a Senate trial, though the president has several lawyers, and it would seem risky, to say the least, to task Giuliani with his defense there.
When Trump decided to release the Ukraine military aid after a months-long freeze, what justification was given? Well, Trump has said he was worried about corruption in Ukraine and concern that European countries weren’t doing their part to protect Ukraine from Russian-backed separatists.
But the White House didn’t give a specific reason when it released the aid in September after freezing it in early July. Officials were under growing pressure from Republicans and Democrats in Congress to give it to Ukraine. And we now know Trump had been briefed on the existence of the whistleblower complaint, according to a New York Times report.
It’s easy to understand Russian interest in influencing our election but what motivation does Ukraine possibly have? Things seem pretty unsettled there. Ukraine didn’t interfere in the 2016 presidential election. Not according to the U.S. intelligence agencies who have said it was Russia.
Fiona Hill is Trump’s former top Russia adviser in the White House, and when she testified in the impeachment inquiry she did a good job explaining that some Ukrainians bet on the wrong horse in 2016 (Hillary Clinton). But that’s not the same as a widespread, systematic effort, directed by Russian President Vladimir Putin, to help Trump win. Hill testified that to equate what Ukraine did to what Russia did “is a fictional narrative that has been perpetrated and propagated by the Russian security services themselves.”
When the Senate trial begins, will Chief Justice John G. Roberts Jr. be in the position to enforce subpoenas? No. Subpoenas are entirely Congress’s purview. And it will be senators who will decide which witnesses to call. Roberts’s job is to interpret the rules, not set them. As we get closer to a Senate trial (ETA: January), I’ll start exploring how this works. Here’s a theoretical look at how Senate Republicans, led by Majority Leader Mitch McConnell (Ky.), could shape the trial to benefit Trump.
If Trump is impeached and convicted in the Senate, could he run again as president in 2020? Probably not, but it depends on how the Senate convicts him. Constitutional scholar Josh Chafetz told me that the Senate normally takes two votes when it decides whether to convict someone who has been impeached by the House: 1. To convict and kick that official out of office; 2. To bar that official from holding office ever again. Theoretically, I guess the Senate could take the first vote and not the other. But if Senate Republicans defected and decided to convict Trump, they’d probably have no problem taking the next step barring him from running for office again.
Not a word about Attorney General William P. Barr in weeks. He was named alongside Giuliani in Trump’s call to Ukraine’s president, as someone who could do Trump’s bidding. What is he doing, and where is he? Barr and the Justice Department have distanced themselves from Trump’s pressure campaign on Ukraine. But Barr still seems very much Trump’s defender as he does his job. He recently characterized Congress’s impeachment inquiry as a “war” against a “duly elected government.” The impeachment inquiry did not try to talk to Barr, but a separate committee sued Barr and Commerce Secretary Wilbur Ross Tuesday for not turning over documents in an investigation into the 2020 Census.
Why doesn’t Congress hold administration officials who have defied subpoenas in inherent contempt, by jailing or fining them? Jailing them would be a heavy lift, arguably more invasive than impeaching the president. Congress doesn’t have any jail, and it could backfire in public sentiment. Fining people is a possibility, but impeachment investigators have seemed more focused on talking to the people who will comply with a subpoena than figuring out how Congress can fine an executive branch official. Here’s more on what inherent contempt is.