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Are Democrats using quest for unredacted Mueller report as shield against impeachment?

Court fight to obtain full report could drag beyond 2020 election, allowing Democrats to avoid impeachment decision

House Judiciary Chairman Jerrold Nadler, D-N.Y., conducts a markup on a resolution to hold Attorney General William Barr in contempt of Congress for refusing to respond to a committee subpoena for the unredacted special counsel report and investigatory materials. (Tom Williams/CQ Roll Call)
House Judiciary Chairman Jerrold Nadler, D-N.Y., conducts a markup on a resolution to hold Attorney General William Barr in contempt of Congress for refusing to respond to a committee subpoena for the unredacted special counsel report and investigatory materials. (Tom Williams/CQ Roll Call)

House Democratic leaders have unequivocally accused President Donald Trump of ongoing obstruction of justice, but they say they won’t decide whether to begin impeachment proceedings against him without seeing the full report and evidence from the special counsel’s investigation.

The result is a single-track process that will likely involve a lengthy court battle for the unredacted version of special counsel Robert S. Mueller III’s report and his underlying investigatory materials. Trump on Wednesday asserted executive privilege over those documents, before the Judiciary  Committee voted along party lines to hold Attorney General William Barr in contempt of Congress for ignoring the panel’s subpoena to turn them over.

The contempt citation now heads to the House chamber, and if approved the House counsel will initiate civil proceedings to enforce it, Judiciary Chairman Jerrold Nadler told CNN on Wednesday, acknowledging “it could take awhile.” Democrats are also planning separate legal action to obtain a court order for access to legally protected grand jury information from Mueller’s report, he said. 

The combination of those two court battles, which are likely to drag out through appeals, means Democrats may not get their hands on the full Mueller report before the 2020 presidential election. At that point, the impeachment question might be moot if Trump loses his re-election bid.

But it doesn’t have to be that way. There’s nothing that would prevent Democrats from pursuing a dual-track approach in which they begin impeachment hearings while continuing the legal fight for the full Mueller report. In fact, doing so may bolster their legal case for obtaining it.

So their current strategy raises the question: Are Democrats using their quest for the unredacted Mueller report as a shield against impeachment?

“Yes,” House Judiciary ranking member Doug Collins said in response to that question. “The thing they don’t want to talk about is impeachment, because they know they don’t have a case.”

The Georgia Republican said Democrats pursuing contempt against Barr — when the attorney general has tried to provide accommodations for them to access the unredacted Mueller report and Democrats have declined — is just “another way to feed their base as they go forward.”

And base support for impeaching Trump may be growing. Tom Steyer’s Need to Impeach petition surmounted 8 million signatures on Wednesday. 

“The Democratic leadership are still obsessed with a misguided notion of catering to the middle,” Steyer said in a statement. “But what the American people want are representatives with the courage and moral clarity to fight for a system that represents the people.”

‘Becoming self-impeachable′

While Judiciary Democrats say their panel could still launch impeachment proceedings if Trump’s obstruction of congressional inquires continues, House Democratic leaders seem to have a different strategy.

At a Washington Post live event on Wednesday, Speaker Nancy Pelosi  said Trump, through his daily obstruction of congressional subpoenas and other actions, is “becoming self-impeachable.”

But when asked whether Democrats could pursue narrow impeachment proceedings against him focused on the issue of obstruction of Congress, Pelosi effectively ruled that out in favor of working with the president to try to lower health care costs and building up the nation’s infrastructure.

“We have a responsibility to the public to get some results for them,” the California Democrat said. “Even though he is the president of the United States, he’s not important enough to stand in the way of what we promised the American people that we would do when we won the Congress and they gave us that vote of confidence.” 

At the Capitol a few hours later, House Majority Leader Steny H. Hoyer decried the administration’s stonewalling and obstruction in drastic terms, calling it “perhaps the greatest cover-up of any president in American history.” The Maryland Democrat was more measured, however, in describing his caucus’s planned response. 

“It’s the cover-up that we’re going to be focused on, and there will be individual items which will be proof of that cover-up,” Hoyer said. “My recommendation, I believe, the speaker’s recommendation, to the six committees and to our caucus, is that we proceed in a holistic fashion about the underlying, basic principle of whether or not the Congress can hold the executive department of the United States accountable.”

When pressed whether impeachment was part of that holistic approach, Hoyer said Democrats are taking things “one step at a time.”

“If the facts lead us to that objective, so be it,” he said. 

“So be it” was also Hoyer’s response to the notion that court action to obtain the full Mueller report could take a while. He said Democrats would ask the courts “to accelerate whatever action is necessary in the defense of democracy” but acknowledged  a speedy decision may not occur.

“If it takes a year and a half, that’s a relatively short period of time in the course of the history of our country. Yes, we have an election coming up in a year and a half, and so you’re correct to say ‘politically,’” the majority leader said when asked if court proceedings would make the matter politically moot. “But this issue is beyond politics in the Democratic, Republican partisan sense.”

House Democratic Caucus Chairman Hakeem Jeffries also advocated for a step-by-step approach, with the next step being the contempt citation that seeks to compel the Justice Department to produce the full Mueller report. He reiterated that Democrats’ standard for impeachment, as articulated by Pelosi, remains clear. 

“The evidence should be compelling, the case overwhelming, and impeachment should be bipartisan in nature in terms of public sentiment,”  the New York Democrat said. “So we are still in the fact-gathering process. The administration is engaged in incredible stonewalling, but we are not going to give up. We are going to keep moving forward. We believe that the law is on our side and we’ll continue to utilize that law as we proceed.”

‘Not in the last chapter’

The majority of Democrats are backing their leadership’s strategy for now. After all, as Hoyer pointed out, it’s only been two weeks since Trump made clear he won’t cooperate with congressional investigations, declaring his administration is “fighting all the subpoenas.” 

“Two weeks? And all of a sudden, we say, ‘It’s moving very slowly.’” Hoyer said, accusing reporters of wanting to rush to the end of a long book. “You must think the good news — the good stuff — is in the last chapter. We’re not in the last chapter.”

But the dam may break before leadership feels it is at the last chapter. Several rank-and-file members have expressed concerns about Congress not proceeding with impeachment, saying it would effectively give the Trump administration as well as future executives license to ignore the constitutional separation of powers. 

“There is ongoing obstruction of justice,” House Judiciary member Pramila Jayapal said. “It’s happening. It’s not just something that’s just in the past. It’s something that’s happening right now as the president refuses to allow us to see the results or hear from the witnesses that are part of the Mueller investigation.”

The Washington Democrat, who co-chairs the Congressional Progressive Caucus, said there are more data points the House should consider before launching the impeachment process, but she believes they’re “getting close” to having enough of a case to at least start impeachment hearings.

“One is the Mueller report, which we may be done with today in terms of unredacted access,” Jayapal said, referring to the matter heading to court now that Barr ignored the subpoena and Trump claimed executive privilege over it.

“The second is around [former White House counsel] Don McGahn,” she added. “And the third is Mueller himself. So there’s a few more pieces that we still need to see if he’s just made this argument that he’s going to not honor any subpoenas, not allow anyone to testify.”

The support for impeachment in the House Democratic Caucus has grown since a few fringe members started talking about it after Trump was first elected.  The Mueller report provided enough evidence for more Democrats to join the calls and others have started arguing for it since Trump decided to obstruct Congress’s investigations. 

So how long can leadership use wanting to see the full Mueller report as reason to delay a decision on impeachment?

Pelosi has all but ruled impeachment out with her standard that any effort be bipartisan and have public sentiment behind it. And yet she, her leadership team and her caucus continue to talk about Trump’s obstruction in grave terms that suggest they have no choice but to go down that route. 

Nadler said Trump “has broken the law six ways from Sunday” — a phrase that certainly invokes the high crimes and misdemeanors standard for impeachment. 

“For him to come out and say he’s going to oppose all subpoenas, that’s a direct challenge to having a Congress that can function,” the New York Democrat told CNN. “It’s a direct assertion that he wants to be a monarch. We rebelled against George III for that, we are not going to take it now.”

But for now, the House Judiciary chairman seems content to fight the battle in the courts until Congress gets the information it’s seeking. 

“It could take a while, that’s the problem,” Nadler said. “But the fact is I have no doubt as to the outcome.”

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