Subpoenas Aren’t Optional, and Other Impeachment Musings

Apparently, being Donald Trump’s personal lawyer means you forget how the law is supposed to work. (Photo Credit: Gage Skidmore/Flickr/CC BY-SA 2.0)

In May, when former White House Counsel Don McGahn was called to testify before the House Judiciary Committee regarding information sought related to Robert Mueller’s investigation into possible conspiracy and obstruction charges for President Donald Trump and other members of his transition team, McGahn willingly defied the subpoena.

For a political figure like Trump and others around him, that McGahn would simply no-show members of Congress is, while almost unprecedented, not particularly surprising. We’ve thrown out the book on presidential behavior and politics as usual so often lately that the binding is cracked and our arms are worn out from the repetitive action.

Still, you would hope as a lawyer that McGahn would have some respect for the law and legal precepts. Besides, and at any rate, you’re, um, not supposed to be able to up and refuse a subpoena like that. As Committee chair Jerry Nadler put it, “Our subpoenas are not optional. We will not allow the president to stop this investigation.” He also warned that McGahn could face contempt charges for failing to appear before the House Judiciary Committee.

This was several months ago, when House Democrats were dancing around the very idea of impeachment and seeking an alternate route to accessing information about Trump’s potential impeachable offenses. It’s October now. Needless to say, the paradigm has shifted regarding the launch of a formal impeachment inquiry. With a majority of House Democrats and even members of the Senate/presidential candidates favoring impeachment, and with Speaker Nancy Pelosi publicly indicating plans to move forward with impeachment proceedings, there is yet greater urgency to compel prospective witnesses to comply with congressional ultimatums.

Unfortunately, that urgency is lost on these witnesses themselves. Sure, the exact circumstances are different than they were a few months prior. Pelosi and Co’s. decision to finally go ahead with impeachment was brought about by a whistleblower complaint which has since come to light from an unnamed individual in U.S. intelligence made in August.

Among other things, the whistleblower alleges Trump pressured Ukrainian president Volodymyr Zelensky multiple times to investigate Hunter Biden, Joe Biden’s son, regarding his role as a board member of a Ukrainian energy company. Despite Trump’s assertions, there is no evidence either Biden did anything wrong within this sphere of influence. As with the focus on Hillary Clinton and her numerous supposed scandals prior to the 2016 election, however, the suggestion alone may be sufficient to sway the minds of voters. And to be clear, Biden, despite numerous bad policy positions (past and present) and the real possibility he is losing his mind, is still the odds-on favorite to win the Democratic Party presidential nomination. Please excuse me while I bang my head against a wall for a moment.

Seriously, though, this is serious business involving Trump. Asking for a foreign leader to investigate a political rival not as a matter of national security, but as a matter of personal political gain, may be a crime and is probably an impeachable offense. Either way, and getting to the central point about testifying before Congress, persons of interest within the context of an impeachment inquiry should not be treating subpoenas as if they’re tickets to some voluntary information session, some theoretical event. As Merriam-Webster defines subpoena, it is “a writ commanding a person designated in it to appear in court under a penalty for failure.” It’s not a request.

Try telling that to Secretary of State Mike Pompeo, though, who has admitted he was on the call between Trump and Zelensky and has stated that he won’t comply with a House Foreign Affairs Committee subpoena, has vowed to fight the deposition of other State Department officials in the service of impeachment proceedings, and who has labeled the committee’s “request” (which, again, isn’t a request) as an attempt to “intimidate, bully, and treat improperly the distinguished professionals of the Department of State.” As Pompeo would have you believe, committee chair Eliot Engel will personally hold down each of these “distinguished professionals” and take their lunch money, whereupon they will be given wedgies and quite possibly will be forced into their own lockers.

Trump personal lawyer and morning talk show resident-crazy-person Rudy Giuliani also has commented about a subpoena in terms of something to which he may or may not accede. Evidently, Giuliani has received subpoenas from three different House committees, but claims that before a “proper” decision can be made, a number of issues have to be weighed, including attorney-client privilege, “substantial constitutional and legal issues,” and “other privileges.” What’s that, Mr. Giuliani? Adhering to the law might involve the Constitution and other legal principles? You don’t say! Never mind that attorney-client privilege might not actually apply in your case because you’re such a blabbermouth. But I digress.

For a House committee issuing a subpoena, when one of the objects of its investigatory powers fails to acquiesce to its summons, what recourse does it possess? Well, one option is to involve the courts. Regarding McGahn’s earlier refusal to appear before Congress and to try to nullify a larger strategy of the White House’s to shield presidential advisers from being held accountable, the House Judiciary Committee filed a lawsuit in August with the U.S. District Court for the District of Columbia to force McGahn to testify. The White House has claimed McGahn has “absolute immunity” from being made to testify before the Committee, a concept which has been used by past administrations but hasn’t been fully tested by the courts.

The problem with this route? It, well, takes time. As stated in the New York Times article linked above, this case could take months or longer to resolve. With a presidential election little more than a year from now, this is obviously far from ideal. As Judd Legum, author of the political newsletter Popular Information, and others have pointed out, meanwhile, another possibility exists in invoking inherent contempt.

Congress hasn’t invoked inherent contempt in more than seven decades, but in this case and given the gravity of the Trump administration’s repeated attempted erosion of the Constitution and democracy overall, it seems well warranted. It certainly is a more direct path to try to get a particular target to comply. Upon the passing of a resolution to execute an arrest warrant, the desired party is taken into custody, tried for contempt, and if found guilty, can be detained or imprisoned “until the obstruction to the exercise of legislative power is removed.” The legislature can also fine the non-compliant party for failing to observe its authority, as Rep. Mike Quigley has publicly observed.

If House Democrats are truly forthright about wanting to carry out an impeachment inquiry with any due sense of efficiency, they shouldn’t hesitate to invoke contempt for those Trump administration officials and actual freaking lawyers who apparently don’t know what a subpoena is. Sure, it may feel like an extreme step to some, particularly among the president’s defenders. Then again, as Legum would insist, “these are extraordinary times.”


Despite the notion many of us looking on at this impeachment business from the cheap seats have been anticipating such action for a long time now, an unfortunate byproduct of this unfolding scandal is that we have even more coverage of Donald Trump now. Visit one of the major cable news sites and witness the litany of Trump-oriented stories available for your consumption. Trump lashes out. Trump attacks. Trump, at his worst. Trump this. Trump that. Even in potential infamy, Trump’s name is everywhere. He couldn’t have succeeded better on this front if he had tried.

What’s particularly bad about this state of affairs is it pushes news items important in their own right to the back pages. The United Kingdom is still in political turmoil, trying to come to grips with the results of a Brexit referendum vote that seemingly never had a chance of being implemented smoothly in the first place. Foreign interference in the 2020 election is probable if not certain, with Vladimir Putin among those laughing about the very suggestion. Mohammad bin Salman and Saudi Arabia have yet to face substantive consequences for the murder of journalist Jamal Khashoggi, and war continues in Yemen, of which the Saudis, aided by American weapons and aircraft, are key players. U.S. manufacturing is on the decline. The border crisis is anything but resolved. Deforestation and fires continue in the Amazon, a direct result of an ill-advised policy shift by Jair Bolsonaro’s Brazil. In short, there’s a lot of bad shit happening right now, and the fevered news coverage surrounding Trump’s legal and political entanglements obscures these real problems.

This isn’t to say, of course, that we shouldn’t be paying attention to the events and players relevant to the impeachment process. Even with Bill Clinton’s impeachment in the rear view mirror, so to speak, what we’re witnessing with Trump is historic and its own animal.

All the same, we should be cognizant of what we’re missing by dwelling on this single controversy. Besides, even if Trump were to be impeached and removed by Congress, that wouldn’t be the end of Republican control of the White House and Senate, nor would it magically put a stop to a rise in hate crimes and overt right-wing extremism in the United States and elsewhere. It’s not like he’s the Night King. Removing him wouldn’t mean the end of ugly rhetoric here in the United States and it wouldn’t essentially spell doom for the Republican Party’s attempts to stack the federal judiciary, target entitlement programs for cuts, and do other harm to the social safety net and fairness in representative democracy.

Donald Trump, members of his administration, and enablers of his on the outside like Rudy Giuliani may not have much regard for the rule of law. That notwithstanding, we shouldn’t treat their flippant dismissal of congressional authority as something to be considered acceptable or normal. In theory, no one is above the law. The Democrats and American news media would be wise to reinforce this idea in both their speech and actions, especially if we are to have but the semblance of confidence in them as institutions going forward.

Re Kamala vs. Tulsi, Problems Abound

Tulsi Gabbard tore into Kamala Harris’s record as a prosecutor and attorney general of California during the second Democratic debate. Harris countered by pointing to Gabbard’s low polling numbers and questionable appraisals of world leaders like Bashar al-Assad. They’re both kind of right. (Photo Credit: AFGE/Flickr/CC BY 2.0)

The second round of Democratic Party presidential debates is behind us, and I think it is safe to say that many of our questions about the field have been answered and a clearer picture of the frontrunner’s identity is emerging.

Kidding! Nothing is certain, everything is chaos, and dark psychic forces threaten to take down the world as we know it. My joking allusion to Marianne Williamson aside (she’s a trip, ain’t she?), things are very much up in the air regarding the path to the Democratic nomination in 2020.

The first night seemed to be a productive one for Bernie Sanders and Elizabeth Warren, widely acknowledged to be the progressive leaders of the field. On this note, I’m really wondering what the point of CNN trying to showcase the likes of John Delaney, John Hickenlooper, and Tim Ryan was. Were they trying to certify them as mere pretenders? Or was this an attempt to “balance” out the leftists and/or rein them in?

If so, it arguably didn’t work, with Warren and Sanders getting in some of the best lines of the night against their centrist objectors languishing in the lower-polling echelons of the 20+ vying for the party’s presidential nod. Beto O’Rourke, Pete Buttigieg, and even the aforementioned spiritual teacher had their moments. Steve Bullock and his centrist brethren seemingly would be well advised to consider exiting the race as Eric Swalwell has done, but don’t let me, you know, rain on their parades.

The second night I admittedly didn’t watch as closely, but evidently, it had its share of memorable moments, if not more so than the half preceding it. Joe Biden once again seemed underprepared for the event, trying to do a delicate dance with his relationship to Barack Obama’s policies amid attacks from other candidates and apparently short-circuiting when attempting to instruct people to text to a certain number to join his campaign. Cory Booker, in an exchange with Biden on his record as mayor of Newark, accused the elder statesman of “dipping into the Kool-Aid when you don’t even know the flavor.” New York City mayor Bill de Blasio, another fringe candidate, faced interruptions from protestors over the city’s handling of Eric Garner’s death, shouting “Fire Pantaleo!” in response to the NYPD’s refusal as of yet to meaningfully hold the officer implicated in that incident accountable for his actions.

Perhaps most notable, however, was Kamala Harris’s disappointing performance in the eyes of her supporters after a triumphant first debate. Much in the way Harris exposed Joe Biden in the first debate on elements of his record, especially his stance on busing, Tulsi Gabbard potentially revealed a crack in her opponent’s façade, assailing her record as a prosecutor and later attorney general of the state of California.

Among Gabbard’s criticisms—which she is not alone in raising, it should be underscored—are accusations that Harris defended the use of the death penalty and brushed off evidence of wrongful convictions, ignored claims from sexual abuse survivors, and laughed off putting people in jail for offenses related to marijuana and truancy in schools. For Harris, trying to paint herself as a progressive leader, the attacks from Gabbard, appeared to broadside her. Cue the umpteen headlines about how Tulsi DESTROYED Harris.

Harris, for her part, fired back at Gabbard following the debate, helping set off a conversation that has spilled over into the days and nights afterward. When prompted by Anderson Cooper about the Hawaiian representative’s withering rebukes, Harris remarked that she doesn’t take the opinions of an “Assad apologist” like Tulsi seriously and demeaned her low polling percentage. Her campaign also invoked the specter of Russian meddling in American elections, suggesting Gabbard’s discourse was emblematic of propaganda from the Putin regime. Gabbard has since derided those comments as “cheap smears” designed to deflect from the real issue at hand concerning the state of criminal justice across the nation today.

It’s easy to take sides and get caught up in the win-or-lose, black-or-white dynamism of today’s political climate; Lord knows plenty of Internet and TV commentators have already taken sides in the war of words between these two women. Not simply to avoid confrontation, however, but there is room to appreciate how we can simultaneously agree and disagree with both candidates.

On Harris’s prosecutorial record, when confronted about it by Gabbard on-stage, she mustered, “I did the work of significantly reforming the criminal justice system of the state of 40 million people which became a national model for the work that needs to be done. And I am proud of that work.”

When asked further about it by Cooper post-debate, meanwhile, she dodged, pivoting to Gabbard’s low polling numbers and record on foreign policy. It suggests Harris is not altogether proud of the work she did or doesn’t want to invite the criticism from progressives. Either way, and regardless of Gabbard’s place among the field, she should have been able to defend herself over the course of the debate rather than after the fact and without her congressional colleague present.

As for Gabbard’s foreign policy stances, it’s, well, complicated. Having served as a medical operations specialist and military police officer in Iraq after enlisting in the Hawaii Army National Guard, she is critical of the policy of American interventionism that has characterized our nation’s foreign policy throughout its history, particularly as it intersects with our involvement in the Middle East. To this effect, she condemns the U.S.’s penchant for insinuating itself in other countries’ affairs in service of regime change and installation of leaders willing to acquiesce to American interests. It’s a position that commentators on both sides of the aisle are wont to defend.

Less defensible, however, is her relationship with autocrats of the Eastern Hemisphere as well as the political right. Gabbard has been adamant about the value of being able to meet with authoritarians like Syria’s Bashar al-Assad and Egypt’s Abdel Fattah el-Sisi to further a dialog, and at times has been—how shall we say this?—less than forceful in labeling Assad, for one, a brutal dictator and war criminal. In her own post-debate CNN one-on-one, she had to be pressed by Anderson Cooper on admitting as much. Gabbard has also praised Indian prime minister Narendra Modi, leader of the Indian People’s Party, a Hindu nationalist party (Gabbard is a practicing Hindu), who has seemingly not done enough to curb sectarian bigotry and violence against Muslims in his country. If we are judging her by the company she keeps/seemingly fails to adequately condemn, Gabbard isn’t above reproach.

On this note, among the Democrats in the field, Gabbard has been a favorite among conservatives ever since her criticism of President Barack Obama for refusing to call jihadists “radical Islamic terrorists,” regularly appearing on FOX News programs like Tucker Carlson’s to discuss her views. Her isolationist worldview and opposition to regime change in Syria appeal to anti-war libertarians and far-right leaders. In the past, she has also opposed civil unions and same-sex marriage, though she has since expressed support for the LGBT community, and voted with Republicans in 2015 to make it harder for Syrian and Iraqi refugees to immigrate to the United States. When you’re championed by figures like Richard Spencer and David Duke—yes, that David Duke—it raises one’s eyebrows.

One can’t be sure how personally Harris and Gabbard take these matters. At heart, both are still Democrats and after the election, they’ll need to be committed to fighting the GOP’s agenda, whether they serve in Congress or the White House. It’s their supporters and how their relationship is portrayed in the media, on the other hand, about which I tend to worry. It’s one thing for Kamala and her devotees to downplay Gabbard’s charges about her record because the latter is a relative unknown or a supposed stooge of the Kremlin. What if Cory Booker or Elizabeth Warren or Pete Buttigieg were to offer the same criticisms, though? And what will happen if Harris ultimately wins the nomination? You can be sure Republicans will come at her with this and worse.

As for Gabbard, progressives, some of whom are Bernie supporters who have favorable opinions about her since she became the first congresswoman to support him in his 2016 bid for the presidency, might cheer the notion of Harris being taken down a peg. Even if Gabbard does hold numerous positions agreeable to progressives and regardless of the fact she was the most Googled candidate after either round of debates, the reluctance at points to come down harder on Assad and other despots is problematic. At best, it’s something of a blind spot. At worst, it’s something more sinister, though this is not to accuse her in such a regard or anything. It’s simply troubling.

You can agree with Tulsi Gabbard’s remarks about Kamala Harris while still demanding accountability for her past votes and interactions with various world leaders. You can support Harris and dismiss Gabbard’s claims about her pre-Senate career, but you can also recognize this is a vulnerability of hers. Preferring a candidate doesn’t mean you need to apologize for her or him, nor does it mean you have to feed the media narrative of a “blood feud” or “catfight” by arguing with the other candidate’s backers on Twitter. At a time when social media helps amplify acrimony in political discourse, there’s room for a lot of ugliness in its elaboration. Two debates in, potential bad omens loom in the distance.


For me, the nature of the ad hominem attacks levied by Kamala Harris at Tulsi Gabbard and echoed by supporters of these candidates and those of other political figures is deeply disconcerting. As you’ll recall, Harris’s campaign, in deflecting from the matter of her checkered record within the purview of the California justice system, invoked Russian interference in our elections as a potential reason for why Gabbard might attack her in this way. Even before this, meanwhile, corporate media were making the connection between Tulsi and Russia.

It should be no wonder, then, that accusations of Gabbard being an operative of the Kremlin or her defenders being Russian bots were flying around wildly after the debates. To be fair, Russian meddling is a real concern for our country. The U.S. intelligence community has made this abundantly clear. That said, suspicion of criticism levied at an establishment-backed candidate like Kamala, feeding itself like the ouroboros eating its own tail, verges on McCarthyite paranoia. What about Bernie? He went to Russia once. Is he a tool of the Kremlin? How do I know you’re not a Russian bot? Your papers, please!

Even when people aren’t claiming that Vladimir Putin and the Russians are loving the debates for the discord and confusion they’ve supposedly helped sow within the American electorate, Democratic supporters and news outlets are keen to advance the theory that all this in-fighting hurts the Democrats and will only lead to re-electing Donald Trump. By now, Republicans are well practiced at making assertions like “Democrats want open borders” and “they’re trying to turn America into a socialist country” in standing by their man.

Both rank-and-file members and party elites seem to forget, though, that primaries are designed to parse out the differences between candidates in search of a single nominee. This is to say that, for a “big-tent” association like the Democratic Party, disagreements are inevitable, and besides, there is yet ample time to come to a single choice. Moreover, on the subject of GOP talking points, even Pete Buttigieg, backed in part by wealthy donors and Wall Street money, recognizes that these attacks from Trump and Co. are liable to frame the Dems as “socialists” no matter who ultimately gets the party nod.

Such is the nature of the beast in modern politics. Heck, even moderate Democrats might levy the same charges against certain members of the field. When alignments with billion-dollar industries and prevailing opinions about the necessity of hewing toward the center to win elections are at stake, leftists may be assailed by anyone to their right, regardless of party affiliation. Talk about your knock-down, drag-out fights.

November 2020 is coming up soon enough. There are still several debates to be had, however, not to mention elections in 2019 that stand to yet more directly impact our lives. Relatedly, it’s one thing if we use these debates to have an honest conversation about the candidates, their policy positions, and the future of the Democratic Party. It’s quite another if we allow ourselves to be swept up by divisive narratives which border on conspiracy theories and use mudslinging and personal attacks to squelch the kind of open discussions we should be having. Under the latter set of circumstances, it may not matter how active Russian agents are in trying to promote chaos. Not when all we need is the slightest push.