House Democrats’ subpoena of former Special Counsel Robert Mueller blew up in their faces this week, but that is not stopping them from planning to issue more.
After Mueller bombed during his testimony, House Democrats pushing for President Trump’s immediate impeachment may have no choice but to keep investigating him in hopes of turning up some damaging misconduct.
However, House Speaker Nancy Pelosi’s preferred path towards any potential impeachment has so far proved feckless.
House Democrats have launched dozens of sweeping document requests and subpoenas, which have been met with defiance from the Trump administration.
Dr. John Eastman, a constitutional law professor at Chapman University’s Fowler School of Law and senior fellow at the Claremont Institute, at a recent House Judiciary Committee hearing said there are limits to what Congress can do.
“Yes, the Congress has oversight authority, but there are limits to that authority,” he said.
“Those limits we typically classify as executive privilege, and so most of the fights in our nation’s history over the issuance of subpoenas and the testimony of high-ranking executive officials deal with that counterbalancing authority that the executive has,” he said.
House Democrats have threatened officials with contempt and have begun going to court to enforce their subpoenas. But those paths are not guaranteed success either.
After House Democrats voted to hold Attorney General William Barr and Commerce Secretary Wilbur Ross in contempt, the Justice Department notified them Wednesday they would not be taking any action against either. The Trump administration is also fighting legal challenges in court.
Meanwhile, their appetite for impeaching Trump does not appear to be significantly growing.
Before the hearing, 95 Democrats backed impeachment. After the hearing, only four more joined. That still leaves Democrats with a shortfall of 119 Democrats to get to a majority. So far, no Republicans have joined their call either.
Despite this reality, House Democrats appear prepared to double down on subpoenas.
“We’re going to be enforcing subpoenas in a number of different areas,” Rep. Ted Lieu (D-CA) told SiriusXM’s Michelangelo Signorile Show on Thursday.
After Mueller’s testimony, House Judiciary Committee Chairman Jerry Nadler (D-NY) said he would go to court to enforce a subpoena for former White House Counsel Don McGahn, a key figure in Mueller’s obstruction of justice inquiry. Nadler is facing a Democrat challenger on his left who has criticized him over not doing enough to impeach Trump.
On Thursday, the House Oversight and Reform Committee voted to authorize Chairman Elijah Cummings (D-MD) to subpoena for White House records related to aides’ use of personal email and messaging applications for official business in potential violation of the Presidential Records Act.
House Democrats are also threatening to subpoena White House adviser Kellyanne Conway, after she did not show up last week to testify about alleged Hatch Act violations.
“The Democrats have weaponized the oversight system to try to dig up dirt on Trump and anyone close to him. They’ve turned oversight into a giant opposition research operation,” said House Permanent Select Committee on Intelligence Republican spokesman Jack Langer in a statement to Breitbart News.
Republican lawmakers say Democrats are weakening Congress’ power of subpoena and contempt by going straight to those actions instead of exhausting other options.
“One of the things that I’ve been just very disappointed in our committee for the last six months is our way we handle subpoenas, and the way that we have went through contempt, and how we have rushed through this process,” said Rep. Doug Collins (R-GA), the top Republican on the Judiciary Committee, during a July 12 hearing.
“Has a subpoena ever been…an opening to a dialogue? Would it ever be said that a subpoena should be to enhance your standing in court? If that’d be true, do you believe that it hurts us as an institution when we rush through these issues of contempt and subpoena?” he rhetorically asked witnesses.
Eastman said fights over congressional subpoenas and congressional testimonies by the executive rise out of a “deliberate design function of the constitution which is a separation and a counterbalance of power.”
“Congress cannot in its oversight capacity intrude on the executive functions including confidentiality of presidential communications, and I think that’s well-established as well,” he said. “The fight then is over whether this current round of subpoenas and demands for testimony are really designed to intrude on the executive in an unconstitutional way and I think that’s where the conversation has to focus.”
So far, House Democrats have issued subpoenas for testimony from Barr, McGahn, Donald Trump Jr., former White House Communications Director Hope Hicks, and former White House aide Annie Donaldson.
Barr refused to testify after Democrats wanted staff to question him instead of lawmakers. For others, the White House has directed them not to testify or set limits on what they can testify on. The Trump administration has claimed “absolute immunity” for current and former officials.
Trump Jr. and Hicks both testified, but their testimonies failed to dredge up anything damaging. On the contrary, Nadler was criticized by women on both sides after repeatedly calling Hicks “Ms. Lewandowski” over a baseless rumor that she had dated former Trump campaign manager Corey Lewandowski. Democrats reportedly want her to come back.
The House Judiciary Committee has voted to authorize — but have not yet issued — subpoenas to White House adviser Jared Kushner, former Attorney General Jeff Sessions, former Deputy Attorney General Rod Rosenstein, former National Security Adviser Michael Flynn, former National Enquirer publisher David Pecker, and Keith Davidson, former counsel for adult actress Stormy Daniels. McGahn was also included, despite already being subpoenaed.
Resisters have called for Democrats to have the Sergeant at Arms arrest them and bring them in for testimony — which has not happened since 1935.
Nadler has held a series of hearings on the Mueller report, but without any current or former Trump officials, viewership has steadily waned. His first series of hearings had approximately 66,000 views on YouTube. However, his second one only had approximately 8,600 views. His third one had only approximately 6,300 views.
Collins mocked Nadler’s last hearing as a high school American government class and an excuse to keep the Mueller report in the news.
“The problem is, we’re just dragging this on,” he said. “I’m trapped back in ninth grade.”