This week almost 700 former federal prosecutors, including prominent Republicans, signed a letter saying the Mueller report lays out offenses against Donald Trump that would lead to indictment if committed by anyone who is not president. All of which is another way of saying that a corrupt executive is the problem of the US Congress, not of prosecutors.
That leaves House Speaker Nancy Pelosi in a pickle. She faces mounting pressure, no doubt from her own conscience as well as from Democratic activists, to address the broad and deep corruption of Trump’s presidency.
Yet the powers she needs to execute her duties are under assault. She must husband her resources both to battle Trump and his defenders and to prevail in a judicial system that has five Republican judges seated at its pinnacle.
Republican complicity in protecting Trump undermines the US Congress, and leaves Pelosi fighting an epic institutional battle alone. The power of the US Congress to blunt abuses, from Trump’s obstruction of the Mueller investigation to the multimillion-dollar buck raking at Trump properties, realistically begins and ends with Pelosi.
Those with a predilection for lawful presidencies are understandably growing impatient. Pelosi, who can be as clumsy at communicating as she is skilled at leading and legislating, has not articulated a strategy for safeguarding rule of law. But it is unlikely such a fail-safe exists.
The history of conflicts between the executive and legislative branches is largely one of muddling through with few stark delineations of where power resides. Courts are not always eager to play the referee, and may not even accept that they should.
When the US Congress wins a round, it is sometimes only after years of delay. The House Oversight Committee sued in 2012 to obtain access to thousands of pages of Justice Department documents related to the committee’s “Fast and Furious” investigation about gun trafficking. The documents arrived almost four years later.
Trump has asserted a blanket refusal to comply with congressional subpoenas, and he has made it clear that anything short of a subpoena will similarly be ignored. Former White House counsel Don McGahn, for example, who told the special prosecutor’s office of Trump’s efforts to fire Mueller, is under White House pressure to keep silent.
In the era before the right-wing propaganda sphere of which Fox News is the molten core, public opinion might have forced Trump’s retreat. Now, Fox and friends secure his right flank, which is all that’s required to keep congressional Republicans purring.
If Pelosi does not resort to the courts to obtain testimony and documents, she may be at the mercy of executive intransigence, backed by the entire Republican Party. If she does turn to the courts, she runs the risk of a Trumpified legal ruling that shifts power from the US Congress to the White House immediately and permanently -- undermining the rule of law now and congressional authority for years to come.
In court, Trump’s undifferentiated contempt for Congress will be recast. Through lawyerly ministrations his Muslim ban was magically transformed from a racial/religious assault borne of personal malice and political demagogy into an exercise in national security. The Supreme Court simply pretended that Trump’s own words, oft repeated, were irrelevant and that his legal arguments were rendered in good faith.
If the recent oral arguments over inclusion of a citizenship question on the census are any indication, the court is poised to repeat the charade, pretending that a crude partisan effort to damage Democratic constituencies and undermine Democratic political representation is instead an earnest expression of executive curiosity.
To mitigate enormous risks, the speaker needs to establish a careful record of seeking facts and trying to accommodate executive prerogatives, a record that Chief Justice John Roberts might have difficulty ignoring. That cannot be done instantly. It might not succeed at all given the partisanship of the high court.
Mostly, Pelosi needs a forum in which to showcase plain truths. Trump has ably convinced a majority of the nation that he is dishonest. But the Mueller report, however comprehensible to trained legal minds, was a convoluted mess for the public, aiding Attorney General William Barr’s deceptions about what the report actually stated.
Democrats need to present a clear, streamlined, factual narrative. That’s why they want access to documents and witnesses. But time is on the side of corruption. Sunlight may never reach Trump’s tax returns. Trump lawyer Michael Cohen, serving a prison term in part for a crime that federal prosecutors say he committed at Trump’s direction, appears eager for redemption, or at least the appearance of it. But he is an exception among firsthand witnesses to Trump misconduct.
It would be better to conduct congressional hearings with the information at hand, and with whatever witnesses are willing to elucidate it. While Pelosi carefully builds the high-stakes legal case for disclosure of hidden corruption, House committees should highlight the known world, such as Trump’s systematic use of illegal labor at his properties. There is no need to uncover exotic new evidence of criminality. There is already more than enough to go around.
Francis Wilkinson writes editorials on politics and US domestic policy for Bloomberg Opinion. -- Ed.