Thread by @jedshug

After more thought and reading, I think Golden is right.

The 1st article of impeachment, abuse of power, is overwhelmingly clear.
But the 2d article, obstruction of Congress, is weak, and the House should vote against it.

I offer a bright line rule here (a Golden rule?)
1/

https://twitter.com/jedshug/status/1207066061138513920

2/ Ignoring subpoenas, ordering witnesses not to appear, refusing to cooperate... all of that is bad behavior.

The House had a choice:
1) Litigate over these subpoenas over 6 months;
2) or move forward with impeachment now.

I think House Dems are making the right choice...

3/ But once the Dems decided not to challenge Trump's bad arguments for not cooperating, they also abandoned the "high crime" aspect of presidential abuse of power.

It's bad to refuse a lawful subpoena, but the appropriate remedy is to go to court to argue its lawfulness.

4/ Part of my thinking is shaped by the debate "Are we in a constitutional crisis yet?"
@Dahlialithwick was asking last May when the Trump administration was ignoring subpoenas.
My answer to her was no, that doesn't reach a "constitutional crisis..."
slate.com/news-and-polit…

5/ I said then:
"The key question to me is whether either party bypasses the courts or defies the courts...The House subpoenas documents, the executive makes legal arguments against those subpoenas, and the courts will hear this dispute. These are checks and balances by design."

6/ The context in May was that some were calling for Congress to use its inherent contempt power to arrest Mnuchin for refusing to hand over Trump's taxes -- without first seeking a court order.

Such a confrontation for extrajudicial arrest would've been a constitutional crisis.

7/ But if the Dems challenged Mnuchin's bad legal arguments in court, then got a court order for Mnuchin to comply, he & Trump would be creating the constitutional crisis if they refused to comply.

Then Congress should use inherent contempt vs. Mnunchin and impeach Trump.

8/ Here are the core allegations in the 2d article.
Correct me if I'm wrong, but the House litigated none of them.
In fact, the only related case was brought by Charles Kupperman, not the House, seeking judicial resolution.

And the House then withdrew that subpoena!

9/ The Judiciary Comm tries to address the judicial role at p. 161-64, under "Judicial Review is Unnecessary and Impractical Here."
But I find the arguments unpersuasive.
I don't think the phrase "sole Power of Impeachment" can do as much work as the committee thinks it does:

10/ Of course the House has the power to decide what constitutes a "high crime or misdemeanor." The clause means the courts don't review impeachment.

But in our system of checks and balances, Congress does not have sole power over subpoenas.
Courts have a key role.

11/ Bad argument on top p. 162:
Relying on courts "would also raise complexities [if] a President who directed Executive officials to defy House subpoenas... then used his pardon power to immunize them from contempt orders if instructed by the Judiciary to honor those subpoenas."

12/ Obviously that's a very different case.
1) It's a president explicitly defying a court order.
2) It's flagrant abuse of the pardon power.
3) It's a violation of the oath & faithful execution.
4) It's arguably criminal obstruction of justice.

It's a terrible counterargument.

13/ Next sentence:
"To be sure, judicial review may at 1st blush seem desirable because it would be an
independent determination by an entity with no interest in the proceedings."

At 1st blush, impeaching for"Obstruction of Congress" seems too much like self-interested turf-war.

14/ I'm making more of a political point about appearances to indepedents or Trump-weary Republicans. But it's a weak case when the charge appears to focus on Congress protecting itself.

No wonder Congress has a 12% approval rating...

15/ When Dems are talking about the public interest & the powerful substance of protecting democracy & national security, they're winning.

When they're talking about process & protecting Congress, they may be right morally, but politically, that's losing or a lost opportunity.

16/ To overcome skepticism about the House's self-interest, go to the courts to hear both sides & issue a court order.
The abuse of power/bribery case was too clear to wait any longer.
But that's the trade-off: Once the substantive case is strong, the process case is less urgent.

17/ Thus it's a political error to charge "obstruction of Congress":
The Dems are arguing explicitly that they need more witnesses. The implicit message is the Ukraine abuse/bribery case isn't strong enough already.

Malarkey. It's already overwhelming.
Don't distract from that.

18/ The rest of this section argues that litigation takes too long. True.
But it also obscures some inconvenient facts about why. This paragraph is what we call "chutzpahdik":
House subpoenaed McGahn in April 2019.
But "filed suit in August."
That's a 4-month delay.

19/ The House isn't impeaching over the McGahn subpoena at all. They are citing the McGahn/Mueller timeline as an example of delay, but the House played a major role in that delay.
And also delayed pursuing tax returns through Ways & Means or NY state.

20/ When Dems subpoenaed the tax returns, I explained in @TheAtlantic in May that their pretextual explanation weakened their case in court - b/c of a fear of saying "high crimes & misdemeanors."
They risked delay & losing to avoid a small political risk.
theatlantic.com/ideas/archive/…

@TheAtlantic 21/ It is disingenuous - chutzpahdik - for the House to complain about litigation delay when it cites McGahn or the tax cases (pages 165-66).
@SpeakerPelosi & House leadership spent most of 2019 delaying such litigation (or making bad faith arguments).

This is hypocrisy.

@TheAtlantic @SpeakerPelosi 22/ A general rule should be that it's no high crime to oppose or contest congressional subpoenas, even with bad or bad faith arguments.
Congress can expose those bad arguments in court and impeach if POTUS ignores court orders or engages in extreme delay tactics in litigation.

@TheAtlantic @SpeakerPelosi 23/ An exception: if the discovery and congressional investigation is too close to the election for any practical timeline or perhaps if there is a more clear & present danger.

Keep in mind: the litigation over the Nixon Oval Office tapes took a total of 4 months (Apr-Aug 1974)

@TheAtlantic @SpeakerPelosi 24/ Congress can go to court in any of these circumstances, ask for expedited review & fast-track appeals. Give notice to the courts that if they can't meet a reasonable timeline, then it will impeach.
If there is a reasonable schedule, Congress should try.
Or don't impeach.

@TheAtlantic @SpeakerPelosi 25/ If the conduct is in summer/fall 2020,
then of course there'd be no time to litigate, but it is also unrealistic to remove for uncooperative behavior w/o more solid evidence of abuse of power just before an election.
Impeach for the underlying abuse, not the uncooperativeness

@TheAtlantic @SpeakerPelosi 26/ The Founders understood that impeachment & removal were necessary to protect against monarchy and tyranny.
But removal must be the last resort only after other remedies have been exhausted.

By definition, the House impeaching for unlitigated subpoenas is no last resort.

@TheAtlantic @SpeakerPelosi 27/ We've lived through a Democratic President (and a future nominee) being harassed by a crazy House over Benghazi.
The shoe will be on the other foot.

Do we really want the Benghazification of impeachment?
The House impeaching presidents for disregarding unlitigated subpoenas?