The Atlantic/Daniel Hemel and Eric Posner: House Democrats Have More Potent Options Than Impeachment

The Atlantic
   
Ideas
House Democrats Have More Potent Options Than Impeachment

But to use them effectively, they would have to play their cards just right.
6:00 AM ET

Daniel Hemel
Assistant professor at the University of Chicago Law School
Eric Posner
Professor at the University of Chicago Law School

House Speaker Nancy Pelosi, House Ways and Means Committee Chairman Richard Neal, and other Democratic lawmakers address a Capitol Hill news conference on May 22.
Mary Calvert / Reuters

The fight between President Donald Trump and House Democrats over the House’s investigations of the president has escalated into what several outlets now describe as an “all-out war.” Most commentators believe that House Democrats are powerless in the face of the Trump administration’s defiance. Litigation to enforce congressional subpoenas will stall in the courts, while any attempt to remove Trump from office with impeachment will die in the Senate. Voters are losing their patience with investigations that produce no results. But if the House backs off, Trump will declare victory, and future presidents may conclude that they are immune from oversight. The options for Democrats seem bleak.

House Democrats, however, have an ace up their sleeve. Actually, a pair of aces: the power to shut down the government and the power to trigger a debt default. These options are far more potent than impeachment because the Democrats do not need the support of Republicans to use them. The problem is that the options may be too powerful: If used unwisely, they could hurt the Democrats—and the country—more than Trump. To prevail, the Democrats must play their cards shrewdly.

If they go this route, Democrats will face criticism from commentators who extol the virtues of moderation. Budgetary brinkmanship, after all, is mostly a tactic from the GOP’s playbook—one that congressional Republicans used in the Bill Clinton years and again under Barack Obama. Shouldn’t Democrats play the role of the adult in the room, rather than holding the federal government hostage for short-term advantage?

David A. Graham: Trump’s impeachment finger trap

Here, though, the goal is not to win a policy dispute over health care or taxes. It’s to preserve Congress’s traditional, constitutionally sanctioned role in overseeing the executive—an essential task for countering abuse of executive power regardless of the party identification of the president. And House Democrats would be doing exactly what the Framers envisioned when they assigned to the legislature exclusive authority over borrowing and spending. For the Democrats, the only effective response to the norm-busting aggression of the Trump administration is to bust some norms themselves.

The stakes are high. The Trump team has sought to stymie 20 different congressional inquiries. The conflicts that have drawn the most attention involve subpoenas related to the Mueller report and to Trump’s tax files. But the interbranch battle is about more than any specific document or witness appearance. Without the power to compel testimony and obtain documents, Congress cannot fulfill its role in overseeing the executive.

Congress’s traditional tools to enforce its subpoenas are either symbolic or archaic. Refusing to comply with a congressional subpoena is a federal crime, but no one expects Trump’s Justice Department to prosecute Trump-administration officials for defying Democrat-controlled committees. The House can file a federal lawsuit to enforce a subpoena, but those cases can take years to resolve. In an earlier era, the House might have dispatched its sergeant-at-arms to arrest a subpoena scofflaw, but that option hasn’t been used in more than a half century.

Realistically, the House will not lock any administration official in jail anytime soon. What it can do is force federal agencies to shutter their doors on October 1, when the federal government’s fiscal year 2019 budget expires. Or the House could up the ante and refuse to raise the debt ceiling, in which case the federal government’s fiscal slack will likely run out in September or October. Unless both chambers of Congress vote to lift the debt cap, the United States will default.

Quinta Jurecic: Impeachment is a refusal to accept the unacceptable

Some House Democrats realize they can capitalize on these looming deadlines. Representative Adam Schiff of California suggested last month that House Democrats might tie funding for federal agencies to compliance with congressional subpoenas. A bolder move would be to add the debt ceiling to the pot. House Democrats might tell Trump: Cooperate with reasonable oversight demands, or out go the lights come autumn.

The problem, of course, is that Trump may refuse to give in to the Democrats’ threats. He will know that if the Democrats follow through, the consequences will be felt by ordinary Americans who depend upon government safety-net programs, federal workers who rely on regular paychecks, and savers who will see the value of their Treasury bonds tumble. While voters overwhelmingly faulted Trump—not congressional Democrats—for the last government shutdown, the source of the last shutdown was Trump’s insistence that Congress pay for a border wall that Trump had previously promised Mexico would fund. If they tied these bills to compliance with subpoenas, Democrats might be seen as the instigators.

However, the politics are more favorable to Democrats than they might seem at first sight. House Democrats, more so than Trump, would face significant political costs if they entered a budget showdown and then folded. Many of their members—especially from solidly blue districts—could face tough primary races if they bowed to the president. The ghost of Joe Crowley, the Queens congressman deposed by Alexandria Ocasio-Cortez in a 2018 Democratic primary, looms large. Trump, meanwhile, has the Republican Party in a stranglehold and faces no credible primary challenge. Both sides know that if Trump blinks, most of his base will forgive him.

House Democrats and the president also face different constraints from their donors. If Democrats are seen as soft on Trump, the spigot of campaign cash from contributors such as the billionaire Tom Steyer may be turned off—or start to flow against them. The last thing Republican funders want is for budget gridlock to unsettle markets. And if there is any lesson from the last shutdown, it’s that Trump will cave once an impasse inconveniences his biggest financial backers. What brought Trump to the table in January was a stoppage at LaGuardia, the airport closest to Wall Street.

Read: The rank and file are starting to defy Pelosi on impeachment

And Trump—as an incumbent president—is the one whose political fortunes are most closely tied to the overall economy. If a shutdown or default slows growth, or sends the stock market into a tailspin, Trump’s biggest electoral advantage entering 2020 will be lost. While he will blame the Democrats, voters tend to blame the president for adverse economic conditions.

Finally, Democrats may get an assist from Trump, who announced last December that he was “proud to shut down the government.” His bravado helped ensure that he took the blame. This time, he has already said that “if there is going to be peace and legislation, there cannot be war and investigation,” an idea he amplified by blowing up last week’s meeting with top Democrats on infrastructure legislation. And yet he left himself room for maneuver—dodging a question last week from a reporter who asked Trump whether he would refuse to sign budget and debt bills if Congress continued its investigations.

All this offers a path forward for the Democrats. The key, for them, is to make clear that congressional oversight is an established part of the American system that Trump seeks to overthrow, and to tie themselves to this mast—insisting they have no choice but to withhold funds and authorizations until the president cooperates with the investigations. And by laying out their demands for subpoena compliance early and building support among their voters and their donors, Democrats can put themselves in a position where backing down at a late date is more politically costly than following through.

If Trump recognizes that Democrats are committed to their course of action, he may see that his options have narrowed: Comply with their subpoenas or else brace for a shutdown, or an even more devastating debt default. At that point, backroom negotiations could lead to a face-saving compromise in which Congress’s oversight powers are recognized and preserved.

It is, no doubt, a risky gamble. But the alternative—allowing the president to evade congressional oversight entirely—is even riskier. House Democrats hold the better hand in this game of constitutional poker. But they can’t win the game unless they play their best cards.

We want to hear what you think about this article. Submit a letter to the editor or write to letters@theatlantic.com.
Daniel Hemel is an assistant professor at the University of Chicago Law School. He has written for The New York Times and The Wall Street Journal.
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Eric Posner is a professor at the University of Chicago Law School.

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