'Democrats are not sufficiently armed for this fight': What DC insiders told me this week about how impeachment can progress

'Congress is gutless and toothless and spineless, and nothing will have consequences'

The Trump administration has tried to dismiss an impeachment inquiry by saying it's 'illegal' (AFP via Getty)

Some critics of Donald Trump have long charged that the world leaders he seems to get along with best are the authoritarians, "illiberal democrats" and present-day dictators. Others have singled out his rhetoric — his frequent talk of "treason" by political opponents, his claim that Article II of America's constitution lets him do whatever he wants, and his attacks on journalists like me as "the enemy of the people” — as evidence that he, himself, sees the Putins, Erdogans, and Kims of the world as role models.

But if the past few days are a guide, it would appear that Trump and his allies are taking their cues from a different historical figure.

Yes, Trumpworld has gone into full Charles I mode.

On Monday, Trump took to his Twitter throne to inform his 65.5 million subjects followers that House Speaker Nancy Pelosi, Intelligence Committee Chairman Adam Schiff, and "all of those that evilly 'colluded' with them, must all be immediately impeached" for the grave crime of daring to launch an investigation into whether he should become the third president to face a trial in the Senate for high crimes and misdemeanors.

Although he was not able to barge into the House's chambers to demand that Pelosi arrest herself, Schiff, and the chairs of the House's Foreign Affairs and Oversight Committees because Congress is in the midst of a two-week recess, his demand that legislators be subject to legal penalties for saying things that displease him is the exact sort of thing our rebellious founders had in mind when they wrote our constitution. Specifically I’m sure they had it in mind when they declared that the people's representatives "shall not be questioned in any other place" for anything they say in the performance of their duties.

But on Tuesday, Trump went even further. After ordering our ambassador to the European Union, Gordon Sondland, not to appear for a deposition by House members, Trump's White House Counsel sent a letter to Pelosi and her leadership team, in which he declared that the president and the entire executive branch "cannot be expected to participate" in the House's impeachment inquiry because it "lacks any legitimate constitutional foundation," despite Article I of our constitution's clear declaration that the House "shall have the sole power of impeachments."

It was an American lawyer's attempt at a 21st century update to Charles I's declaration that "I am no less confident, that no learned lawyer will affirm that an impeachment can lie against the King, they all going in his name: and one of their maxims is, that the King can do no wrong.”

But many of the "learned lawyers" of our day were about as generous in their assessment of the White House's missive as their 15th century counterparts must have been to Charles's assertion that he was above the law.

One prominent conservative lawyer, David French, called the letter a "dumpster fire" and a "legal war crime." Another prominent conservative litigator, George Conway III — husband of Counselor to the President Kellyanne Conway — called it "constitutionally and legally garbage" and "literally a series of nonsense propositions, from beginning to end."

New York University Professor Ryan Goodman said it was "a professional embarrassment" for White House Counsel Pat Cipollone, and Gregg Nunziata — formerly counsel to GOP Senators Marco Rubio and John Thune — called the "bananas" letter "a barely-lawyered temper tantrum" and "a middle finger to Congress and its oversight responsibilities" which no member of Congress should accept.

Monarchical allusions aren’t rare from some of Trump’s defenders. Hosts of his favorite program, Fox & Friends, have long suggested that his children would have bright political futures in the Republican Party, and Trump campaign manager Brad Parscale recently told a group of supporters that the House of Trump will become "a dynasty that will last for decades."

Faith and Freedom Coalition head Ralph Reed is even trying to revive the divine right of kings for Trump by way of a forthcoming book — originally titled Render to God and Trump — in which he argues that evangelical Christians “have a moral obligation to enthusiastically back” the 45th president.

But recently, Trump defenders have gone way beyond allusions. They're now discussing him as if he is King of America (rather than the King of Israel, as Trump once declared himself).

During a Tuesday night Fox News appearance, Trump "off the books" lawyer — former US Attorney and current Fox News conspiracy theorist Joseph diGenova — went on a tirade in which he suggested that the process written into our constitution by which our Congress might handle an out-of-control president was more like the process by which the English parliament handled an out-of-control monarch.

“What you’re seeing is regicide. This is regicide by another name, fake impeachment,” diGenova said.

Yes, one of the TV lawyers who purportedly (sort of) represents the President of the United States said the House's inquiry into whether to impeach the President is, as the Oxford English Dictionary puts it, "the action of killing a king."

Of course, White House officials have strenuously denied that their objection to impeachment is a wholesale rejection of the House's authority. During a conference call with reporters to discuss the letter's release, a senior administration official took pains to stress that the White House's objection is only to the way Pelosi and her compatriots have conducted the inquiry, namely the lack of a vote by the full House to begin one (a vote which is not constitutionally required, nor something the executive branch has the power to dictate).

The Trump administration has more or less acted as if the House's well-established oversight authority suddenly became illegitimate the moment it was wielded by Democrats post-January. Democrat oversight lacked a "legitimate legislative purpose”, they said in the weeks after Dems took control of the House, and only in an impeachment inquiry would the White House be compelled to release certain documents and testimony.

But now that there's an impeachment inquiry, they now claim that is illegitimate, too.

It's unclear whether that tune would change were such a vote to "authorize" an inquiry to take place. During a briefing with reporters on Tuesday, the senior administration official whose job it was to defend and explain the White House Counsel's position refused to say whether the Trump administration would cooperate if the inquiry were authorized by a vote.

Four different reporters (myself included) asked the official if the White House would cooperate with an "authorized" impeachment probe, and each time the official deflected with vague statements about not wanting to "speculate about hypotheticals" or "draw red lines."

Now, if Trump and his defenders are going to act like Charles I, you'd think Democrats would be agitating for a leader who will be a William Lenthall or an Oliver Cromwell to Trump's Charles.

So far, House Democrats' response has been grounded in the norms and customs that both sides once adhered to, but the House has heretofore declined to match the way Republicans have played constitutional hardball. According to Veteran Democratic strategist Bob Shrum, their failure to use powers like "inherent contempt" (which would allow the House's Sergeant-at-Arms to arrest and detain witnesses who refuse to appear when under subpoena) has been an example of how Pelosi has displayed admirable restraint.

"So far Pelosi has handled this brilliantly and I wouldn't want to second-guess her," he said, adding that inherent contempt "will become the whole story" if Democrats try using it. "If you're the Democrats, you just move ahead and exercise your powers by bringing articles of impeachment to the floor."

Joel Rubin, a former Deputy Assistant Secretary of State and House staffer, largely agreed with Shrum's assessment. "For Democrats to motivate public support, they have to take steps to build that support," he told me. "Inherent contempt will likely end that opportunity. I think you have to explain to the public why it is problematic that the executive branch isn't responding to requests for information from the legislative branch."

While the Democrats I spoke to seemed content to allow Pelosi to handle things the way she feels most appropriate, a few renegade Republicans are sounding the alarm on what trying to conduct an impeachment probe under the political equivalent of Marquess of Queensbury rules will mean.

When I spoke to Rick Wilson on Tuesday, the veteran GOP ad-maker, master of conservative politics' dark arts, and self-described "apostate Republican media guy" offered a sobering assessment of what Pelosi's strategy so far has wrought: ”This is a very live constitutional crisis, and the Democrats are handling it in the way I expected them to handle it, which is they're not handling it at all."

Wilson was particularly critical of Democrats' performance at a House Judiciary Committee hearing last month which featured a sneering, contemptuous performance by former Trump campaign manger Corey Lewandowski.

"He expressed… outright lying and contempt in the face of Congress and they did nothing," Wilson explained. "That signaled to this White House that they can get away with anything, that Congress is gutless and toothless and spineless, and nothing will have consequences."

Wilson tied Lewandowski's escape from consequences to yesterday's decision by an emboldened White House to refuse to allow Sondland to testify and cease cooperation entirely. "Not only did they deny Sondland's ability to testify, but Trump now rubs their noses in it. It's quite remarkable," he said.

Wilson explained that the only thing Republicans will understand is the exercise of raw power by the Democratic majority. He suggested that Pelosi should be using inherent contempt as well as the power of the purse to zero out budgets for things like White House staff salaries, presidential travel, and Secret Service protection until Trump is brought to heel.

"Inherent contempt is a known congressional power. There are Supreme Court cases that validate, there is no doubt that it exists, and the fact that [Democrats] won't get up off the mat and get in this fight absolutely stuns me," he said, adding that Democrats should be demanding immediate compliance with their subpoenas. "Democrats need to ratchet things up because Congressional power is either going to be used or extinguished. The answer is: You are in contempt. Sergeant-at-arms, take that man into custody," he said. "It's not a legal question, it's a spectacle. Trump can generate a bigger spectacle as long as they play by the rules of procedural caution and legalities, but Trump is going to burn Washington to the ground while they wait for a court decision."

Concurring with Wilson was Republican presidential candidate Joe Walsh, a former House member and prominent Trump critic. He, too, told me that Democrats should have used inherent contempt after Lewandowski's obnoxious performance before the Judiciary Committee.

Walsh said he is sympathetic towards Pelosi's predicament and understands that she is trying to be cautious because she is worried about the politics of impeachment — but he also stressed the need to demonstrate real strength in the face of people who routinely show disrespect for the truth, facts, oversight, separation of powers and the constitution.

"Republicans don't give a damn about any of it," he said. "They just want to win, and the Democrats will lose this fight if they are not bold and strong and resolute."

Walsh said it is clear that the American people understand why what Trump did to Ukraine is wrong as much as they didn't understand the complex allegations laid out in the Mueller report, but said the way for Democrats to harness that fact is by exercising power.

"The polling on impeachment has moved because in the last couple weeks, the Democrats have been getting stronger — they need to keep doing that," he said. “Democrats are not sufficiently armed for this fight. They're playing against the President and people who will do anything — including cheat, steal, and kill — to win. They need to recognize this fact."