The legal battle to investigate the Donald Trump presidency must begin sooner rather than later.
Democrats crossed a significant line last week in their ongoing battle for oversight of the Donald Trump administration. The Judiciary Committee found Attorney General William Barr in contempt of Congress for failing to hand over an unredacted copy of the Mueller report as demanded in a subpoena. While few Attorneys General have ever been found in contempt of Congress, skeptics point out that the decision may not actually lead to any punishment for Barr. Congress often refers its contempt decisions to the Justice Department, which is currently led by Barr. Few reasonable observers have suggested that the cautious House Democratic leadership will take the next step and have the House sergeant-at-arms physically restrain Barr in the Capitol.
The ambivalence about Barr’s contempt citation highlights a critique of Democrats from their supporters over at least the past decade. Democrats have been viewed as feckless and weak by a large number of liberal activists. This perception has been reinforced by the frequent efforts that Democratic leaders have made to negotiate and reason with their Republican targets. Nearly every week, a congressional leader reaches out for a meeting with Trump about infrastructure, or postpones a subpoena for a Trump aide. The reasons are clear. Speaker Nancy Pelosi wants to show swing district voters that she is trying to secure public policy on their behalf. “I would be delinquent if I didn’t try to work with him to get something done for the American people,” she said at a recent news conference. Committee leaders Jerrold Nadler and Adam Schiff want to bolster their subpoenas’ chances in court by trying to accommodate Republicans, and then showing instance after instance of unwarranted Republican insolence. Each would argue that their tactics have the best chance of combating Republicans and defeating Trump in 2020.
But Democrats need to move past this cautious, negotiated approach. They need to issue subpoenas, arrest federal officials for contempt of Congress immediately, and then begin planning for the inevitable Supreme Court case. Every day that goes by increases the chances of Democratic efforts being thwarted during the Trump presidency or during the Nancy Pelosi speakership. Democrats must realize that the 2020 elections are coming soon, stalling their momentum for oversight and significant votes. There is also the archaic and lumbering process of navigating the federal courts. Securing victory after the next election will be pyrrhic if Democrats don’t have any power to enforce a Supreme Court mandate.
This tendency to quickly press legal cases needs to be applied outside of Congress as well. There has been a proposal in California to ban any candidate from the ballot who has not released his or her tax returns. Such an act would not be unprecedented, since many Southern states left Abraham Lincoln off their presidential ballots in the election of 1860. But its constitutionality is still dubious. Once this bill is passed into law, Democrats need to immediately sue and have the Supreme Court rule on it as soon as possible. An early favorable ruling would allow the party to divert federal resources away from California and towards other states early on in the election process.
The same is true for the National Popular Vote Interstate Compact, a proposal to bypass the Electoral College and reserving electoral votes for the winner of the national popular vote. This compact has the potential to decide the next election by popular vote if it receives approval from enough states. An early Supreme Court decision in favor of the compact will also help keep Democrats on offense and help them craft the best electoral strategy possible. Democrats must realize that all political fights will become court fights. They need to ensure that they are sending the best cases to the Court at the most opportune times.
Democrats have a golden opportunity for the next 19 months to investigate the Trump administration and claw back power from a Republican administration. They were originally elected to exercise that power. And in order to win reelection, they will have to show that they know how to use their power. Nothing makes Democratic power more evident than a decisive Supreme Court ruling and two weeks of distracting tweets from an angry Donald Trump.