How Trump can stall House Democrats

Illustration: Lazaro Gamio/Axios

President Trump's White House appears to have figured out the secret of congressional oversight: there's not much Democrats can do if they say no to everything.

The big picture: The millions of voters who elected a Democratic House in November are about to find out how hard it is for one party — with just one chamber of Congress and without the cooperation of the other party — to investigate a president who's determined to run out the clock.

  • Yes, House Democrats can subpoena whoever and whatever they want — but those subpoenas are hard to enforce.
  • They can hold administration officials in contempt, but in all of the most recent examples where Congress did that, it fizzled.

Do you remember Eric Holder going to jail during Barack Obama's presidency because Congress held him in contempt for refusing to turn over "Fast and Furious" documents?

  • Or Harriet Miers and Josh Bolten going to jail during George W. Bush's presidency after Congress held them in contempt for refusing to testify about the resignations of nine U.S. attorneys?

Of course you don't — because none of it happened.

  • Both cases went to court and dragged on for years. The Miers case ended in a settlement with her testifying behind closed doors and Congress getting some of the documents it wanted — but only after Obama had become president and Bush had left office.
  • And the Holder case ended in a settlement last year with Trump's Justice Department giving some of Holder's documents to Congress — six years after it held him in contempt.
  • Usually, the breakdown happens because the Justice Department won't prosecute an administration official if Congress holds them in contempt.

Be smart: Congress hasn't used its strongest contempt power — "inherent contempt," where a witness can be put on trial and imprisoned in the Capitol — in nearly a century.

"You are on solid ground if you give Congress the middle finger," said Philippe Reines, a former Hillary Clinton aide who was threatened with a subpoena — but ultimately didn't get one — during congressional Republicans' Benghazi investigation.

What the Trump administration is doing is fighting everything from the House Judiciary Committee's subpoena of former White House counsel Don McGahn to a request for Trump's tax returns.

The strategy could have a downside even for a White House that lives for these fights.

  • "It totally undercuts the argument that we've been transparent and because there was no criminal wrongdoing that's why we encouraged everyone to cooperate," said one former senior White House official. "Now we look like we've got something to hide and we're not being open and transparent."

Bottom line: The White House probably won't face any consequences, at least in the short term. The bigger issue, legal and congressional experts tell us, is the damage it could create for future administrations.

  • If, for example, the courts ultimately rule against the Trump administration for asserting executive privilege to block McGahn's testimony — since McGahn has already testified on the record to Mueller — that's a precedent that could apply to future White Houses.
  • "I haven't seen an instance yet where the White House position seems to be on particularly solid ground," said Justin Rood, a congressional oversight expert with the Project on Government Oversight and a former Senate Republican staff investigator. "I think they're going to set precedents that will be difficult for future White Houses to live with."

But that could be years from now. "From a timing perspective, [there's] no downside" to the White House stalling the Democrats as long as possible, according to a top Republican white collar defense attorney.

  • And the bad precedents? "THIS White House cares about that? Hahahahahahaha," the attorney wrote in an email.

The other side: While a source familiar with the House Democrats’ investigative plans conceded that they’re worried about Trump’s stalling tactics, a senior Democratic aide said there are ways to go around the White House.

Additional Stories

Highlights from Alexander Vindman and Jennifer Williams' impeachment testimony

Photo: Shawn Thew/Pool/Getty Images

Lt. Col. Alexander Vindman, the National Security Council's top Ukraine expert, and Jennifer Williams, an aide to Vice President Pence, testified Tuesday morning as the House kicked off its second week of impeachment hearings.

Why it matters: The hearing was the first time the public heard directly from witnesses who listened to the July 25 call between President Trump and Ukrainian President Volodymyr Zelensky that lies at the heart of the impeachment inquiry.

Where to hunt for life on Mars

Mars as seen by the Curiosity rover. Photo: NASA/JPL-Caltech/MSSS

After decades of sending missions to Mars, NASA is now zeroing in on regions of the red planet that they think have the best chance of determining whether the world has hosted — or hosts — life.

The big picture: Scientists are now able to point to parts of Mars that were once likely wet and warm, with geological signatures similar to the rivers, deltas and lakes on Earth — upping the odds that those parts of Mars could have once been friendly to life.

White House's official Twitter account attacks Vindman as he testifies

Photo: Drew Angerer/Getty Images

The White House's Twitter account tweeted Tuesday a quote from former National Security Council official Tim Morrison's deposition stating that he had "concerns" about Lt. Col. Alexander Vindman's judgment.

Why it matters: This is the second instance of President Trump or the White House tweeting about a witness as they're testifying publicly in the impeachment inquiry.

Behind the scenes of Trump's shift on Israeli settlements

(L-R) Pompeo, Netanyahu and Friedman visit the Western Wall Tunnels in Jerusalem. Photo: Abir Sultan/AFP via Getty Images

U.S. Ambassador to Israel David Friedman pushed for a change to the U.S. position on the legality of Israeli settlements early in the Trump administration, but former Secretary of State Rex Tillerson opposed the move.

Behind the scenes: Friedman, the key driver behind the major policy shift announced yesterday, raised the issue again when Secretary of State Mike Pompeo came in. This time he got a "green light," U.S. officials tell me.

Two prison guards on duty during Jeffrey Epstein's death charged

The Manhattan Correctional Center where the Jeffrey Epstein was found dead. Photo: Atilgan Ozdil/Anadolu Agency via Getty Images

Two federal prison guards, who were on duty at the Metropolitan Correctional Center in mid-August when financier Jeffrey Epstein was found dead, were charged on Tuesday in connection with their alleged failure to properly check on Epstein as ordered.

Why it matters: These are the first charges to emerge from a criminal inquiry into Epstein's death, which has prompted investigations and the removal of the director of the Federal Bureau of Prisons.

Vindman refuses to answer questions amid fear of outing whistleblower

Lt. Col. Alexander Vindman faced a round of questioning from House Intelligence Committee Ranking Member Devin Nunes (R-Calif.) over people with whom he discussed the July 25 call between President Trump and Ukrainian President Volodymyr Zelensky.

Why it matters: After Vindman said he discussed the call — as a part of his position on the National Security Council — with State Department official George Kent and an unnamed intelligence official, the questioning devolved into a squabble over the impeachment inquiry's rules protecting the identity of the whistleblower.

A Teflon earnings season

Illustration: Sarah Grillo/Axios

With Q3 earnings season nearly over, investors are applauding, even cheering companies that fall short of expectations or signal next quarter won't be as rosy as previously thought.

Why it matters: Investors' renewed optimism that's pushed stock prices to all-time highs is giving businesses more leeway than in the past.

Trump Inc. leaks on itself

Illustration: Sarah Grillo/Axios

As televised impeachment hearings roll into Week 2, one surprise has been how many of the Trump team's wounds have been self-inflicted, because of his allies' curious habit of leaking on themselves.

Why it matters: The leaks and revelations have thrown President Trump into a constant state of defensiveness, and turned a growing number of Republicans into frustrated, sometimes bewildered, defenders.

Read more at Axios
© Copyright Axios 2019