Ask Amber: What can the House do if officials won’t cooperate?

Oct 01, 2019

Happy Tuesday. I write about politics for The Fix blog, and I'm chatting live here every Tuesday at noon Eastern about the day's biggest political news. What are you curious about?

We made it! To Tuesday! Thanks for joining me on the second-busiest week in politics of all time, basically. Here's what I'm watching. 

There is slightly more support for an impeachment inquiry, but we are still a country divided.

Attorney General Barr has some explaining to do about his lead role in helping Trump investigate the Russia investigators.

Vulnerable House Democrats need to tread very, very carefully now that an impeachment inquiry is here.

Also, "Impeachment inquiry? Let's ignore it." -- Secretary of State Mike Pompeo, basically, setting up yet another likely court battle, which could delay Democrats' timeline.

Meanwhile, some 2020 fundraising numbers are out, and Sen. Bernie Sanders (I-Vt.) had a good third quarter. But does money translate to polling support and, ultimately, votes?

What are you curious about? See ya at 12 Eastern.

Okay, one more thing to add. A new Monmouth University poll finds that in 1 in 5 Americans haven't heard of the Ukraine story. So y'all are ahead of the game just by being here.

So Secretary Pompeo won't let State Department officials show up for scheduled impeachment depositions this week. If the House committee tries to implement their (er, our) rights, presumably AG Barr won't enforce them. What's the House's next move, or is it a standoff?

As The Post's Dan Balz wrote recently, the checks and balances are set up to work if both sides respect the governing norms. The founders just didn't put tools in the Constitution for this. I mean, I guess inherent contempt and fining or jailing these officials themselves? 

This is just so frustrating... At what point do the Congressional committees issuing subpoenas start issuing monetary fines for non-compliance? Seems like that's their only recourse. At a U.S. taxpayer I feel like we deserve to find out what's going on. I sure hope if Dems take back the Senate at some point they change the rules so their subpoenas would have some sort of bite to them. Or is that a constitutional amendment?

Hmm, how would you change subpoenas to be more effective? Not complying with them is technically a crime, but the problem with this moment in time is that to enforce violation of said law, Congress needs the executive branch (the Justice Department). We actually saw this during the Obama administration, when Republicans in Congress held Attorney General Eric Holder in contempt of Congress, which is punishable by jail, and his own Justice Department just declined to do anything.

`Democrats logically evaluate every possible presidential nominee at least partly on that candidate's ability to defeat Trump. But what if Trump is not the nominee? How does that change the Democratic candidate calculus?

This is about three steps too far into hypothetical land for me to be able to answer it. It would require Democrats uncover something in their impeachment inquiry that is so ...impeachable .. and then impeach Trump that at least 20 Senate Republicans have no choice but to convict the president, all in the next few months. I think if that were to happen, almost everyone agrees that Republicans would be the party with the bigger problem than Democrats going into 2020. 

One likely scenario is that Trump is impeached by the House but not convicted by the Senate. If that happens and Trump is elected again (shudder), can the next House restart the impeachment process?

Interesting question. I wonder what the Constitution says about impeaching someone more than once. But you're right that Trump can run for office if he's impeached by the House. He might even be able to run for office if he's removed by the Senate, since convicting him and removing him from office are two different votes they'd have to take. 

I see so many comments about how President Trump asked for help against a political opponent. If the President was truly concerned that Joe Biden did something bad, and he thought that Ukraine could help uncover that, isn't there an obligation to get to the bottom of it? The President is only allowed to ask for investigations into his friends or people within his party, but people on the other side are allowed to do whatever they want? The President is the leader of the executive (law enforcement) branch of the country. It seems odd that he's only allowed to enforce laws against people who think like he does.

The problem with that premise is Trump's former homeland security adviser Thomas Bossert told ABC that he considers the Joe Biden thing "a white wale" and the other stuff Trump mentioned on the call, about whether Ukraine has a DNC server that got hacked by Russians, are conspiracy theories. 

Please tell me why after 1000 scandals that have failed to take down Trump, the 1001st will. If he can admit to sexually assaulting women, insulting American judges of Hispanic heritage, disparaging GOLD STAR FAMILIES, why would this time be different? I'm just assuming that complicit Mitch will just drag this out until the press sees a different squirrel and chases it. I want to be 100% wrong but I'm not holding my breath.

I can't tell you this will cost Trump his job! As evidence stands now, there's no reason to believe Senate Republicans will convict him and remove him from office. (Though Senate Majority Leader Mitch McConnell (R-Ky.) said a trial is happening if the House impeaches him.) We don't even know if House Democrats have enough votes to impeach Trump.

What I can tell you is why the Ukraine allegations tipped the scale for Democrats into impeachment: It's simpler to explain than the Mueller report, which hinged on legal theories. Now Democrats have to hope it will sway public opinion, too.

Hi Amber -- thanks for taking questions today. Given that he's on the sidelines now (and sort of was even when he was in the Senate), how influential do you think Flake's call for Republicans to abandon Trump will be? And just for the fun of it, if you had to pick one currently serving Republican (other than McConnell -- too easy!) who could most change the equation by coming forward and doing the same thing, who would it be?

On Flake: While he's well respected among Republicans, I'll share with you what I heard from a Republican strategist about all these House retirements: It's a lot easier to influence when you're on the inside, wearing that pin that labels you a member of Congress, than on the outside.

And on which senator 'sides McConnell could change the game on impeachment, good question. It would have to be someone who is not in a tough reelection with a Democrat (and thus can explain their decision that way), someone who might lose their job in supporting convicting Trump, and someone who was never a never-Trumper. Also someone who is well respected. Let me think on who fits that profile. Any ideas? Flake did tell a reporter last week that if the vote were private, he thought "35" Senate Republicans would vote to convict Trump.

Amber, thanks for taking our questions and providing your insights into complicated processes. My question: does the commencement of an impeachment inquiry COMPEL compliant responses to subpoenas? If the Administration refuses to comply, as they have in several other Congressional investigations, does Congress have another option, other than going to court? Thank you.

1. Apparently not.

and 2. As I understand the process, not really, other than maybe inherent contempt (fining or jailing people who don't comply by, like, setting up some kind of jail in Congress).

We are stepping off the pages of the Constitution here.

How can asking foreign leaders to assist in a domestic political situation be legal?

Yeah I don't know/don't fully understand it. As my Post colleagues who broke the story report, here's the concern: "Barr’s conversations with foreign counterparts have raised concerns among some intelligence officials that he may be seeking to substantiate conspiracy theories raised by some on the political right to defend Trump."

Maybe you'd disagree, but it feels like Republicans LOVE investigations. Wasn't there an investigation to find out if those two IRS employees in Cincinnati who didn't like T.E.A. Party groups were also in direct communication with the White House (shocker, they weren't). There were four separate Benghazi investigations. F.B.I Special Agent Peter Strzok seem to live on Capitol Hill for awhile and especially weird and hypocritical consider the actions of our President, the Republicans really wanted us to know he was unfaithful in his marriage. I mention it not so much to say it was all bad and horrible, but why Democrats seem to be so hesitant to do these investigation?

Well, an impeachment investigation is much more weightier than the others you mentioned. You're seriously considering overturning the results of an election. Obviously partisanship plays a role in this, but I do think most Democrats in Congress took that into account and seriously thought about it.

"A new Monmouth University poll finds that in 1 in 5 Americans haven't heard of the Ukraine story." Did the poll also ask about their media habits?

Apparently they're not regular readers of The Washington Post! 

Who would be in charge of arresting people?

I think the Sergeant of Arms

"...the problem with this moment in time is that to enforce violation of said law [not complying with a subpoena], Congress needs the executive branch (the Justice Department)." My understanding is that Congress does NOT need the DOJ to carry this out. All you need is the Congressional sergeant at arms to bring them to the hearing, and a local DC jail to put them in if they refuse to comply. Is this not true?

As I wrote in my explainer on inherent contempt, which is the process you describe, that carries much more political risk with it than just impeachment. "Today, inherent contempt is arguably more drastic than impeachment because of how rare and dramatic it would be. That’s a problem for Democrats in Congress who are worried that impeachment would give Trump a boost in public sentiment."

Also, an update on inherent contempt: Our ace congressional reporting team is working on figuring out what Democrats' next steps are, and when I know, I'll share it with y'all.

One of the questions on the Quinnipiac poll was "Is Congressional support of impeachment based on facts or partisan politics. Results: Facts 36%, Partisan Politics 56%. Do you think this is going to hurt Democrats?

Vulnerable Democrats ostensibly don't like those numbers. As I wrote today in a piece about what they do now: "If which party is more partisan ends up being voters' calculations, Democrats need to be careful. A Quinnipiac University poll out Monday has most people saying they believe impeachment is driven by politics rather than the facts of the case.

Ultimately, Democrats are the ones embarking on something both historic and unprecedented: an impeachment inquiry into a president heading into an election year. And as of now, they are doing it with nearly no support from the other side. That makes this process disconcertingly unpredictable for them and especially their most vulnerable members."

Should I care about the numbers being thrown out? Have you found that they actually correspond to anything besides general popularity?

I'll put it this way: It's one of a couple data points with which to interpret the primary. For Bernie Sanders, really good fundraising numbers haven't necessarily translated to bumping him up in the polls. 

You said earlier that the Senate would need a separate, second vote to remove Trump from office even if he were convicted in the Senate. But Wikipedia quotes the Constitution Article II, Section 4, as saying: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." So why would there have to be a second vote?

Here's how I explained it on Friday, after talking to a constitutional law expert: If Trump is impeached by the House but acquitted by the Senate, he can still run for office. If the Senate convicts him, it gets murkier. The Constitution says "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."

But what does "shall" mean? Is there wiggle room on that? Also, typically the Senate has taken one vote to impeach someone and remove that person from office, but a second vote to disqualify them from further office, says Josh Chafetz, a constitutional law professor at Cornell University. "There have been 8 impeachment convictions in American history (all of them have been of federal judges), and of the 8, only 3 were disqualified from future officeholding," he told me in an email. 

But remember this: This whole thing is so unprecedented that we don't know for certain what would happen.

Will something more complete and accurate than a "rough" transcript of Trump's July 25 phone call with the president of Ukraine ever be released? I'd be interested in seeing any discrepancies between the two.

We could hear the audio. One Republican who was working for a GOP senator as the Nixon tapes were released flag this to me as a potential turning point in the impeachment inquiry. Does the audio convey nuance in a way a rough transcript cannot?

If 2018 taught us anything, is that Trump puts even the reddest districts in play. With that being said, is there any sign that Inspector Clouseau (err, the Honorable Devin Nunes R-CA) will be looking for new work come 2021?

I think Trump helped put redder-than-normal districts in play for Democrats, but I wouldn't go so far as to say "the reddest." Nunes had his closest race in awhile last year, but his Democratic challenger raised more than $10 million and still fell short. And he was in the news in a bigger way then, than now, I would argue.

Do you thinkt he IRS whistleblower story will start getting more play? Or is it all just going to be Ukraine forever? Maybe antagonizing the intel community and most of the federal workforce wasn't such a great idea.

My congressional colleagues have reported Pelosi wants to keep the inquiry Ukraine focused, lest Democrats be seen as overreaching. But she'd probably have to consider accepting articles of impeachment about something else equally compelling. (And I don't know if taxes rises to that level..I just don't know enough to say.) Still, they could make the articles of impeachment really broad, like "abuse of power" or something that encompasses everything their investigations found.

Is there any legal or constitutional requirement to have a named roll call vote? Can't the senate rules be changed to permit it if they currently don't?

McConnell seems pretty set on following the rules as the past two impeachment trials have laid them out. So, I don't imagine anything like this happening. McConnell did hint he'd try to keep a trial short. 

I'm somebody who quit Facebook years ago, but people seem to want to use it so why would they worry about appeasing people on the right or the left?

I think reputation matters for a company, and especially Facebook right now. Trump is out there accusing social media companies of political bias against him, even once saying Google rigged the election. 

What is the next step with the law suit to overturn the ACA? Has it been argued at the circuit level yet? If not, is there a date? Lets say that happens and whichever side loses appeals to SCOTUS. How long is that on turnaround? I see it as quite a mess if either SCOTUS or a circuit court were, lets say, to hand down a decision agreeing that the whole ACA or even a significant chunk of it is unconstitutional next June. There is no chance at all that the administration can come up with a replacement over next summer and fall. The election would happen just as people were receiving information from their insurance companies telling them that they had to start disclosing all their medical conditions before getting approved or not approved for coverage, wouldn't it?

All good questions that I haven't had the chance to dig into. There is a lot of coverage falling by the wayside as political reporters like myself focus on impeachment. 

So he will claim Client-Lawyer privilege for this manner but he has also claimed he talked to members of Ukraine's government at the behest of the State Department. If the latter is true - isn't he compelled to state what he discussed and with whom as a representative of the US Government? Except the State Dept. is now claiming that Government Employees no longer need to submit depositions of what they did while working for the US Government. Is a representative of the US Government (As Rudy stated he was) obliged to state what they did and with whom, while they were being directed by a government entity or does his lawyer/client privilege trump this?

I haven't looked into this myself, but some legal experts are saying Giuliani can't use attorney-client privilege to avoid testifying. 

It feels like the Sen. Sanders supporters hate and decry money in politics until today when they can't tell you enough about how he got.

Well, Sanders is also bragging that his fundraising was largely made up of small-dollar donors.

If the House approves impeachment, it goes to the Senate. Is there a vote required to actually proceed with the impeachment trial? And if so, is a simple majority what is required to proceed?

I don't think so. I think they'll automatically hold a trial, and then they'll need 2/3 of senators to vote to convict the president -- or all Democrats and 20 Republicans.

My Trump-loving friends and family have been sharing Facebook memes that the whistleblower law was changed in August to allow hearsay evidence so that the complaint that resulted in the impeachment inquiry could be filed. However, I have found no evidence to confirm or deny this. If you have a link with a simple explanation I can share, that would be most appreciated!

Glenn Kessler of The Post's Fact Checker has you covered.

Thanks for all your great questions! See y'all next Tuesday, In the meantime visit The Fix and sign up for my newsletter, The 5-Minute Fix, to keep this chat going in email form. My colleague Aaron Blake will be here 12 on Friday.

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Amber Phillips
Amber Phillips writes about politics for The Fix. She was previously the one-woman D.C. bureau for the Las Vegas Sun and has reported from Boston and Taiwan.
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