There’s a certain rhythm to the last two presidential scandals that led to impeachment proceedings. Richard Nixon denied that he had tried to cover up the Watergate break-in during the two-year scandal that followed. The Supreme Court forced him to hand over the White House tapes to prosecutors, including one in which he conspired to pressure the FBI to drop its investigation. He resigned rather than face near-certain impeachment in the House and removal in the Senate.
More than two decades later, Bill Clinton denied that he had a sexual relationship with White House intern Monica Lewinsky, both in public statements and in sworn testimony during the Paula Jones sexual-harassment lawsuit. Independent counsel Ken Starr found incontrovertible proof he had lied: a blue dress owned by Lewinsky with a stain from which Clinton’s DNA could be extracted. The House impeached Clinton for perjury and obstruction of justice, though the Senate later voted to acquit him.
Some House Democrats seem to hope that rhythm—fervent denials of wrongdoing, followed by a smoking gun that proves them wrong, followed next by some kind of action—will magically repeat itself for Donald Trump. Trump, however, has broken that cycle. The president fervently denies he’s done anything wrong, then cheerfully admits to most of what his critics allege. He constantly resists efforts to scrutinize and check his administration while carrying out some of the most overt acts of corruption in the public eye. Some two-and-a-half years into this routine, Democrats are still falling into the trap, waiting for a deus ex machina that never arrives. Others, including Speaker Nancy Pelosi, appear to be exploiting the lack of a Trump-slaying MacGuffin to justify their inaction.
What we know so far about the president’s latest scandal is troubling, to say the least. Rudy Giuliani, Trump’s legal hatchet man, is openly trying to dig up dirt on one of Joe Biden’s sons in Ukraine to damage the Democratic frontrunner’s presidential bid. Opposition research is hardly new to American politics, but Trump’s approach to it crosses multiple lines. The Wall Street Journal reported over the weekend that Trump repeatedly pressured Ukrainian President Volodymyr Zelensky in phone calls this summer to investigate Biden’s son and work alongside Giuliani to undermine Trump’s potential 2020 opponent.
An unidentified whistleblower filed a complaint with the U.S. intelligence community’s inspector general that partially covers some of these matters. Precise details about that complaint are elusive, even to members of the congressional intelligence committees. We know that the inspector general found the complaint to be serious enough to alert Congress about the standoff, notifying lawmakers that the complaint “relates to one of the most significant and important of the [director of national intelligence]’s responsibilities to the American people.” We also know that Joseph Maguire, the acting director of national intelligence, is resisting disclosures to lawmakers on the matter at the behest of the Justice Department.
One hypothesis is that Trump may have threatened to withhold military aid unless the Ukrainian government abetted Giuliani’s skullduggery. Using the presidency to coerce a foreign power into undermining a political opponent would be, by any measure, profoundly corrupt. When asked about his calls with Zelensky on Monday, Trump gave credence to those fears. “It’s very important to talk about corruption,” he told reporters. “If you don’t talk about corruption, why would you give money to a country that you think is corrupt? [...] It’s very important that on occasion you speak to somebody about corruption.”
We don’t yet know everything about the substance of the whistleblower’s complaint, but one doesn’t need to be a linguistics professor to parse Trump’s meaning. Former FBI Director James Comey recounted how Trump didn’t explicitly order him to do anything in 2017; the president simply asked for personal loyalty, suggested Comey should go easy on Michael Flynn, and fired him after he declined to do so. The Mueller report documented multiple instances where Trump’s subordinates refused to carry out his vague commands to interfere with the Russia investigation because they knew those orders were wrong. So when the president won’t shut up about anti-corruption efforts in a phone call while his lawyer also wants you to investigate a political rival, you implicitly understand that his interest isn’t in clean government.
Multiple Democrats responded to all of this last week by repeating their call to start impeachment proceedings against Trump. Speaker Nancy Pelosi, the most powerful opposition figure in the country, did not join them. “If the Administration persists in blocking this whistleblower from disclosing to Congress a serious possible breach of constitutional duties by the President, they will be entering a grave new chapter of lawlessness which will take us into a whole new stage of investigation,” she wrote in a letter to House members.
It’s hard to see why Trump and his allies should take the threat of a “whole new stage of investigation” seriously. House Democrats have largely struggled to conduct investigations into the Trump administration this year. The White House responds to every request for testimony with sweeping invocations of executive privilege; the president’s private and government lawyers alike reply to every subpoena or request for documents by challenging it in the federal courts. Congressional oversight requires a certain amount of good-faith participation from the executive branch to work properly. Against an authoritarian president who seems desperate to run out the clock before Election Day next year, it’s virtually toothless.
Pelosi herself bears some responsibility for this state of affairs. A majority of House Democrats now support impeachment proceedings of some kind, a milestone they reached after Mueller’s testimony before lawmakers this summer. Even key senior lawmakers like Jerry Nadler, the House Judiciary Committee chairman, have moved towards impeachment in recent months. But Pelosi has not budged. In an NPR interview last week, she cited fears that moderate Democrats would lose their seats after an impeachment battle. The speaker also said lawmakers should pass a law overturning the Watergate-era DOJ guidance that says a sitting president can’t be indicted.
“I do think that we will have to pass some laws that will have clarity for future presidents. [A] president should be indicted, if he’s committed a wrongdoing—any president. There is nothing anyplace that says the president should not be indicted,” Pelosi told NPR on Friday. “That’s something cooked up by the president’s lawyers. That’s what that is. But so that people will feel ‘OK, well, if he—if he does something wrong, [he] should be able to be indicted.’”
Revisiting that memo is long overdue. But Pelosi’s overall approach upends the American constitutional order. Elevating indictments while resisting impeachment cedes a massive amount of Congress’s authority to the executive branch. Through impeachment, the Constitution allows the House to convene itself as a grand jury of sorts to prosecute presidential misconduct. (Whether the Senate convicts the president is on its members’ consciences.) In practical terms, Pelosi would rather let Attorney General Bill Barr serve as the arbiter of Donald Trump’s wrongdoing than alienate a few hypothetical swing voters by doing it herself.
Congress already ceded large swaths of its power to the executive branch over the last few decades. Federal immigration laws give so much discretion to presidents that Trump can enact much of his agenda without writing new legislation. He can also make a mockery of the Senate’s advice-and-consent power by ousting permanent appointees and appointing pliable “acting” agency heads to carry it out. And thanks to the national-emergency laws, Trump can spend federal funds on projects that lawmakers oppose without worrying about their power of the purse. With congressional oversight largely defanged and impeachment off the table, Congress is effectively voting itself out of existence.
Earlier this year, I raised a hypothetical question: If Trump would take his acquittal by the Senate as vindication, as some impeachment critics have argued, what conclusion would he and future presidents draw from the House’s refusal to impeach him for it in the first place? Trump’s apparent efforts to pressure Ukraine into meddling in the 2020 presidential election are the answer. There should be consequences. But Pelosi’s demand for investigations are designed to push them further away, not bring them closer.