ANALYSIS — It was a remarkable 24-hour reversal, with President Donald Trump first saying Monday he cooperates with “everybody” before turning to an unlikely source for a precedent to reject House Democrats’ demands for reams of documents: Barack Obama.
House Democratic chairmen of committees in the embryonic stages of investigations into all things Trump have requested documents from and interviews with a long list of individuals and entities related to the president’s time in office, 2016 campaign and business dealings. Trump seemed willing to, at least in some form, comply with some of those requests when he said this on Monday: “I cooperate all the time, with everybody.”
But by the next afternoon, it appeared the president had been trying to buy time for his aides to determine the extent to which they believe the law will require White House compliance. As he often does — even as White House Counsel Pat Cipollone told House Oversight and Reform Chairman Elijah Cummings that “we are prepared to continue negotiations in good faith” — the president went to the most extreme option, appearing to reverse himself.
“President Obama, from what they tell me, was under a similar kind of a thing, didn’t get one letter. They didn’t do anything,” he said Tuesday, meaning the Obama White House simply ignored congressional requests. Here are three things to expect from the White House and Trump associates as House Democrats bore deeper and deeper into all things Trump.
‘Prerogatives of the president’
Though a senior White House official acknowledged earlier this week that the president and senior West Wing aides largely will wage a public relations fight against the House Democrats’ probes, there also is a Cipollone-led legal fight already underway.
Cipollone on Monday responded to Cummings’ request for information about the White House’s process for approving security clearances amid media reports that presidential adviser and son-in-law Jared Kushner got a top secret clearance only after the president overruled several former top aides. His letter to the chairman provides clues into the White House’s legal strategy.
The letter includes references to “prerogatives of the president” and points to what he describes as a “constitutionally-mandated accommodation process” under which any White House should consider requests from Congress. The White House counsel also charged Cummings with showing “no willingness to accommodate [legitimate] Executive Branch prerogatives, as required under the Constitution.”
“Because Congress derives its oversight authority from its legislative powers, my office must ensure that any request from the committee serves a legitimate legislative purpose,” the counsel wrote, adding the White House has so far detected none.
In his March 1 letter, Cummings contended that the White House has “stalled, equivocated, and failed to produce a single document or witness to the committee.” Trump’s reversal and his counsel’s letter show the White House likely will continue trying to slow the Democrats’ investigations by haggling over legal authorities and definitions as much as by sending up smoke screens via contradictory presidential public statements.
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‘The mob takes the Fifth’
Cummings and Nadler have made clear they are mulling which Trump associates to subpoena for testimony, and both have said they expect to do so. But that doesn’t mean that any Trump offspring or associate has to testify.
Enter the Fifth Amendment, which protects witnesses from saying anything that might incriminate themselves.
Like on many issues, just where the president stands is all over the place — and his stance appears mostly linked to how invoking the Fifth might help him or hurt an enemy.
Here was candidate Trump in 2016, reacting to several former aides to Hillary Clinton pleading the Fifth during congressional Republicans’ investigations of her use of a private email server as secretary of state: “The mob takes the Fifth. If you’re innocent, why are you taking the Fifth Amendment?”
But here was citizen Trump in 1998, after then-President Bill Clinton had admitted to an affair with former White House intern Monica Lewinsky: “I’m not even sure that he shouldn’t have just gone in and taken the Fifth Amendment.”
And then there’s Trump’s 1990 divorce proceedings with his first wife, Ivana. You guessed it: He took the Fifth.
One of the president’s sons who had a role in his 2016 campaign and business dealings, Eric Trump, was asked on Fox News Radio about attorney Joe DiGenova saying recently that “everyone should refuse, and when they’re subpoenaed, they should all take the Fifth, because this is a perjury trap. This is not a legitimate investigation, it is a fishing expedition.”
The Trump son’s response: “I think he’s spot on. … I mean, this is the biggest crock of — I mean, I can’t even say it, Brian [Kilmeade], but it is crazy.”
A ‘high bar’ indeed
House Democratic leaders and committee chairs continue saying publicly that they are not planning an impeachment process against the president.
Nadler says he has a “high bar” on the matter. Even freshmen members of the farthest left wing of the House Democratic caucus who see enough evidence to do so, like Alexandria Ocasio-Cortez of New York, say they will defer to leadership and chairs on impeachment.
The senior White House official acknowledged Monday that the West Wing, at this point, does not expect an impeachment battle.
The main reason, most likely, is that Speaker Nancy Pelosi of California “is keeping Democrats from overreaching like House Republicans did in the ’90s when they were hellbent on impeaching Bill Clinton,” said David Brady, a Stanford University political science professor. “Pelosi learned the biggest thing Speaker [Newt] Gingrich ignored: Like with Clinton, convicting and removing Trump couldn’t possibly pass the Senate.”
Keith Whittington, a Princeton University political science professor, adds another layer to Democratic leaders’ decision — which likely would be months away as their committees go through the methodical work that comes with such sweeping probes. He argues Democratic leaders would have to convince the public — and then enough GOP senators — that “impeachment is the right remedy for the problems currently confronting them.”
That means Democrats “would have to do more than show that the president has done something that could be classified as an impeachable offense,” adding in a Lawfare blog essay: “They would need to demonstrate that Trump’s continued occupation of the White House has become unendurable and that leaving him to face the electorate again in 2020 and to serve out the remainder of his term poses unacceptable risks to the nation.”
In the words of Nadler, that is a very “high bar” indeed.