WASHINGTON — President Donald Trump is rapidly confronting a decision at the core of House Democrats’ nascent impeachment inquiry: Should he comply with congressional demands and risk disclosure of embarrassing information?
Or should he delay and possibly deepen his legal and political predicament?
House Speaker Nancy Pelosi and Rep. Adam Schiff, the intelligence committee chairman, issued a blunt warning to the president Wednesday, threatening to make White House defiance of a congressional request for testimony and documents potential grounds for an article of impeachment.
With the prospect of new subpoenas coming as soon as Friday, Trump’s official policy of deliberate non-cooperation, and his view of executive power, could be tested quickly.
“We want to make it abundantly clear that any effort by (Secretary of State Mike Pompeo), by the president or anyone else to interfere with the Congress’ ability to call before it relevant witnesses will be considered as evidence of obstruction of the lawful functions of Congress,” Schiff said in a Wednesday news conference.
For his part, Trump maintained, “Well, I always cooperate,” without explicitly saying he would comply with the request. He then derided Pelosi, saying she “hands out subpoenas like they’re cookies.”
The White House strategy toward congressional oversight has often been open scorn. The president’s aides have ignored document requests and subpoenas, invoked executive privilege _ so far as to argue that executive privilege extends to informal presidential advisers who’ve never held White House roles _ and all but dared Democrats to hold them in contempt.
As the impeachment inquiry accelerates, the White House’s stonewalling appears likely to continue.
“This is a hoax,” Trump said, immediately after professing his commitment to cooperation. He then launched into a diatribe on the impeachment inquiry, which has centered on his request for Ukraine’s president to assist in digging up dirt on former Vice President Joe Biden. “This is the greatest hoax. This is just a continuation of what’s been playing out since my election.”
In public and private, Trump has angrily dismissed the impeachment investigation as an illegitimate, purely partisan effort to topple him, according to three White House officials not authorized to speak about private conversations. And he praised Pompeo’s initial, combative response to the Democrats’ requests this week, one of the officials said.
It’s part of an emerging political and legal strategy informed by Trump’s time in the two-year crucible of the special counsel’s Russia investigation.
The president’s first team of lawyers was inclined to cooperate with Robert Mueller, believing it would help bring the investigation to a swift conclusion. But once Jay Sekulow and Rudy Giuliani took over, they largely ceased cooperation, attacked Mueller’s integrity and shielded Trump from testifying in person. They believe the moves inoculated the president legally and solidified his standing politically. Giuliani and Sekulow remain part of the president’s outside counsel.
Trump’s legal team privately cheered as the Mueller investigation bled into its third year in 2019 _ in part because of their stall tactics on whether Trump would consent to the Mueller interview. Now they are bent on ensuring the current probe is anything but the quick process desired by Democrats, who are wary of its impact on the 2020 presidential campaign.
“We’re not fooling around here,” Schiff said. “We don’t want this to drag on for months and months, which appears to be the administration’s strategy.”
White House allies argue that the Democratic demands are overly broad and raise issues of executive privilege and immunity, jeopardizing the longstanding interests of the co-equal branch of government. But Democrats are making the precise counter-argument, that Trump is claiming superiority of the executive branch over the legislative in a manner that defies the Constitution.
It’s a foot-dragging response that also serves Trump’s political interests _ he has hoped to use impeachment as a rallying cry for his supporter base in the election year.
Democrats have sought to use their declared impeachment investigation to bolster their case to access all sorts of documents from the administration, most recently secret grand jury information that underpinned Mueller’s report. And where courts have generally required congressional oversight requests to demonstrate a legitimate legislative purpose, impeachment requests could be wide-ranging.
Some Republicans have raised doubts that the unilateral declaration of impeachment would grant the House those powers. Trump allies have questioned the form of the impeachment investigation, which, unlike those into Richard Nixon and Bill Clinton, was begun without a formal vote of the House.
They suggest that without a formal vote, the House is merely conducting oversight. The Justice Department raised similar arguments last month, though it was before Pelosi announced the impeachment investigation.
There’s no clear-cut procedure in the Constitution for launching an impeachment inquiry, leaving many of these questions about obstruction untested in court, said Allan Lichtman, a history professor at American University.
“There’s no specification in the Constitution in what does and does not constitute a more formal impeachment inquiry or investigation,” he said. “One can argue if they’re in an impeachment investigation, they’re in an impeachment.”
It is unclear if Democrats would wade into a lengthy legal fight with the administration over documents and testimony _ or if they would just move straight to considering articles of impeachment.
Schiff said Democrats will “have to decide whether to litigate, or how to litigate.”
Democrats might have a marginally stronger case in court fights over documents they want from the administration now that they’ve initiated an impeachment inquiry. But more important is the prospect of incorporating into impeachment itself the White House’s refusal to cooperate, said Elliot Mincberg, senior counsel for the liberal People for the American Way.
If the White House won’t provide fuller transcripts of Trump’s July 25 call with Ukraine’s president, for example, that could serve “both as evidence to support other allegations and itself impeachable conduct. That’s leverage the Democrats did not previously claim that they have now quite explicitly claimed,” said Mincberg, who previously served as a lawyer for the House Judiciary Committee.
Jennifer Victor, a political science professor at George Mason University, said the impeachment inquiry “ups the ante in a checks-and-balances political game with the executive branch. The heightened public spotlight makes it more difficult for the executive branch to skirt requests to appear or deliver documents.”
