Embracing impeachment rope-a-dope: the critical importance of pursuing Congressional subpoenas in federal court now

If this scene is repeated on January 20, 2021, we’re going to wish the House had filed suit in federal courts to have the Trump administration comply with it subpoenas.

Holding the American electorate in low regard is hardly something new. Quoting journalist and social commentator H.L. Mencken from a 1926 article in the Chicago Tribune: “No one in this world … has ever lost money by underestimating the intelligence of the great masses of the plain people.”

What may be new, at least in certain respects, is the cynical response to the realization that American voters are just not up to snuff. And by that I mean the calls from both sides of the political aisle to dumb down public political discourse so that the poor, beleaguered voters don’t get either too confused or too bored.

We’ve seen this crusade against voter confusion lately in the proposals to remove political ads from social media. The motivation here is that, since social media platforms appear to be so effective in influencing people’s opinions using targeted ads, the only thing we can do to defeat fast-spreading political contagion is to make it impossible for candidates for office to present themselves and their policies for public scrutiny in online forums.

I point out two problems with this futile attempt to sanitize social media. The first is that there are no shortage of pernicious political opinions being circulated that do not originate with political campaigns; they will always dominate the social media bandwidth. And the second is that, when outrageous opinions are expressed in political ads, the parties responsible can be identified affording us at least some hope for accountability. The same cannot be said inflammatory claims posted by random right-wing nutjobs or Russian Twitter bots.

An adjunct to the anti-confusion crusade is a call to mobilize an army of “fact-checkers” to insure that only reliable information is propagated on social media platforms. How these these fact-checkers would be selected is anybody’s guess. Suffice it to say the fact-checkers of the current and previous Republican administrations took it upon themselves to expunge the words “evolution” and “global warming” from official government websites. Paraphrasing the Roman poet Juvenal: “Who will fact-check the fact-checkers themselves?” Who indeed?

What troubles me now more than these misguided plans to eradicate voter confusion, are the consequences of the other kind of underestimation of the electorate, namely the notion that the public can’t be counted on to follow complex and extended political discussions like that emerging from the ongoing House impeachment inquiry.

I take pains to point out that it’s not that I think the public at large has a long attention span. It’s that I think limiting the availability of even complex critical information carries costs of it own. And these troublesome costs far exceed whatever the downside of having to deal with a bored electorate might be. To be specific, the Democratic House leadership has decided not to pursue enforcement of its subpoenas for information from the Trump White House for testimony and documents pertaining to their investigation of L’Affaire Ukrainienne. This could have devastating consequences.

The rationale for this fast-track approach according to statements by House Intelligence Committee Chair Adam Schiff is so that impeachment proceedings don’t get mired in “rope-a-dope” proceedings in federal courts, proceedings that very well might not come to a conclusion for months or more. Schiff’s unstated premise here, though, is that the American public will get bored if the impeachment process goes on for too long or that they will be unable to hold both the Trump impeachment and the Democratic presidential primary competition in their minds at the same time.

But it should be noted that there is much that is much of value which will be lost by forsaking remedies in the federal courts in order to pursue an expedited impeachment. We will lose the uncovering of a trove of information which, when disclosed, will make recent testimony in the public impeachment hearings seem like a walk in the park for the Trump White House in comparison. Moreover, this trove will lead to the opening of other avenues of investigation into the Trump White House and further discovery of other criminal schemes by this administration which will prove to have been far more sinister than the isolated pay-for-play scheme with Ukraine now in the news. To put it mildly, we ain’t seen nothin’ yet.

Do I believe that the delay in the impeachment process associated with the legal pursuit of this critical information is worth risking American voters becoming bored? Yes, I do.

The outcome of the expedited congressional impeachment process now underway is a forgone conclusion: Trump will be impeached by the House and acquitted at trial in the Senate. All this with little discernible effect on the 2020 election, I might add.

Yet, having gone to that all the trouble of pursuing and securing the impeachment of Donald J. Trump, we will find ourselves without the most incriminating information about the inner workings of the Trump White House in hand. How can we not pursue this critical evidence at this time?

I readily acknowledge that the success of subpoena-related suits by House Democrats in lowers courts will ultimately rely on a favorable findings by the Supreme Court. I believe that these favorable rulings will be forthcoming since even a GOP-packed SCOTUS will see it as untenable that the U.S. House of Representatives can, simultaneously, be empowered by the constitution to pursue impeachment of a president suspected of corruption and not be allowed demand evidence of that corruption to make its case. The administration’s categorical decision to not cooperate with any House investigation will make the constitutional decision by the court even more clearcut.

Also, we need to keep in mind that, come January 20, 2021, it may very well be Donald Trump standing on the inaugural platform in front of the U.S. Capitol building once again. With his impeachment by the House and acquittal at trial in the Senate behind him, Trump will enjoy carte blanc to continue the kind of criminal enterprises that his administration has been conducting, now with renewed vigor. Reigniting impeachment of a Trump coming off a second electoral victory will be a political impossibility.

Impossible that is unless the federal suits filed by House Democrats in response to noncompliance with their lawful subpoenas have born or start to bear fruit. It may be months into a second Trump administration before this happens. But when it does, it will be raining legal fire on Donald Trump and his associates the likes of which they have never seen. We desperately need to keep these legal options open right now. They may be our democracy’s last line of defense against this thuggish president for the foreseeable future.

And what about our low expectations for the easily confused and easily bored American public that I mentioned above? We can choose to cater to them as the prevailing wisdom about an expedited impeachment would indicate. Or we can choose to take the opportunity to demonstrate that the politics of our day are indeed complex but, in the final analysis, they merit our scrutiny and patience. Our future rests not on dumbing down the political process, but on elevating the way people participate in it. Protecting the public from confusion and boredom is not the way to go about doing this.

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Marc Merlin

My interests include science, politics, philosophy, and film. I am the Executive Director of the Atlanta Science Tavern a grassroots, public science forum.