The White House has long embraced a strategy of stonewalling House Democrats’ various investigations into Donald Trump, from refusing to hand over the president’s tax returns to directing former White House Counsel Don McGahn not to testify before Congress. Now, three weeks after reports of Trump’s phone call with Ukrainian President Volodymyr Zelensky, in which Trump sought an investigation into Joe Biden and his family, and two weeks after Speaker Nancy Pelosi launched an impeachment inquiry, the Trump administration is doubling down. How House Democrats respond in this moment will have significant implications for their impeachment efforts.
On Tuesday, in an eight-page letter to House Democratic leaders, White House Counsel Pat Cipollone vowed that, from here on out, administration officials would not be cooperating with the investigation. Released just hours after the Trump administration blocked Gordon Sondland, the U.S. ambassador to the European Union, from testifying before Congress, Cipollone’s letter says the administration won’t comply with the investigation in part because Democrats have not held a formal vote to open one. (Democrats are not legally required to hold a vote at this stage of the investigation, although the House did vote on impeachment inquiries for Presidents Richard Nixon and Bill Clinton.) In the letter, Cipollone also writes that the probe “lacks any legitimate constitutional foundation,” though the Constitution says that impeachment proceedings are purely the prerogative of the House.
The letter has exasperated Democratic lawmakers who had hoped to gather evidence and hear from witnesses, with the goal of voting on articles of impeachment by the end of the year.
Some Democrats want to launch a counterattack against the White House’s resist-everything strategy. They’re lobbying to revive the “inherent contempt” process, which would allow Congress to arrest and fine or imprison officials who refuse to show up for their scheduled testimony. But at least so far, most Democrats want to just plow ahead with the impeachment investigation, interpreting the White House’s latest stiff-arm as an egregious example of obstruction of justice, bolstering their case for impeachment.
“The White House should be warned that continued efforts to hide the truth of the president’s abuse of power from the American people will be regarded as further evidence of obstruction,” Pelosi said in a statement released Tuesday. “Mr. President, you are not above the law. You will be held accountable.”
One way to get witnesses such as Sondland to testify is by holding them in inherent contempt. The procedure hasn’t been used since 1934, but some lawmakers believe that the time has come to reinstate the process, which would mean laying out guidelines for how to use it. “We need to revisit inherent contempt,” Representative Gerry Connolly of Virginia, a member of the House Oversight Committee, told me. “I can tell you the sentiment on [the] Oversight and Reform [Committee] is growing that we should do it.”
Representative Harley Rouda of California, another member of the Oversight Committee, told me that “there’s a lot more conversation around whether it should be used, and if so, how.” The defiance on the part of executive-branch officials shouldn’t go unanswered, Representative Jamie Raskin of Maryland told me. “It’s clear that the House should establish an inherent-contempt machinery and process,” he said.
But both Connolly and Raskin acknowledged that such a process would be time-consuming and impractical, given that there’s currently no set procedure for Congress to follow in fining or jailing officials who refuse to comply with subpoenas. And while none of the Democratic lawmakers I spoke with ruled out resorting to inherent contempt, it’s hardly the most appealing option for those already worried about the potential political ramifications of backing impeachment; after all, arresting noncompliant administration officials and throwing them in jail would arguably be a much more dramatic move than pursuing impeachment in the first place.
“I just think that’s really unlikely. It’s kind of comic opera,” says Frank Bowman III, a law professor at the University of Missouri and the author of a recent book on impeachment. “What happens if you’re trying to arrest the vice president or the secretary of state? Those guys have got guys with guns. Do we have a showdown at the O. K. Corral over inherent contempt?”
Most Democrats, though, would prefer to just push forward with the investigation and continue to subpoena witnesses; the impeachment inquiry can still continue even if the administration doesn’t provide documents or allow witnesses to testify. Democrats believe that they can make the case with the material they have: the whistle-blower complaint, a summary of the phone call between Trump and Zelensky, and text messages among State Department officials.
Rouda said that Democrats “absolutely” have enough to proceed with the inquiry without help from the White House. Other lawmakers echoed that sentiment. “We need to move forward,” Representative Ro Khanna of California said Wednesday on MSNBC. “We need to look at what evidence we have, make the best effort, make the case, and have a vote on the articles of impeachment.”
And there are ways to get information, lawmakers noted, without having to turn to such an extreme measure as inherent contempt. Yesterday, House committees subpoenaed Lev Parnas and Igor Fruman, two associates of Trump’s personal lawyer Rudy Giuliani who are not members of the executive branch and who are expected to more readily comply with Congress’s requests. Parnas and Fruman were arrested on Wednesday night at Dulles International Airport on their way out of the country. The committees also issued a subpoena to Energy Secretary Rick Perry to hand over key documents by October 18.
The administration’s resistance to the impeachment inquiry is a challenge for Democrats, but it could actually help their case, lawmakers told me. “The more the White House acts as unhinged as it has in spewing conspiracy theories and lobbing incendiaries at Congress for daring to perform its constitutional role,” Connolly said, “bolsters the case for why he needs to be impeached—and hopefully removed from office.”
Pursuing an impeachment inquiry partly on obstruction grounds would mean straying from the clear-cut, Ukraine-focused impeachment investigation that Pelosi and other Democratic lawmakers were hoping for. House Democrats return from a two-week recess next week, and how they respond to the latest hurdle from the White House in the coming days could significantly affect how the American public views the investigation—and ultimately shape the success of their impeachment efforts.