Eight months since taking power in the House, Democrats have arrived at the most painful phase yet of their oversight of President Trump and his administration: purgatory.
In the face of total stonewalling from the White House, they’ve been forced to go to court to compel documents and testimony from witnesses that could shed light on Trump’s offenses outlined in Robert Mueller’s report and beyond. When those witnesses do appear, they claim “executive privilege” to avoid answering questions, forcing Democrats to go to court anyway in hopes of getting a judge to toss out that defense.
Or, in the case of Corey Lewandowski—the former Trump campaign manager who appeared before the Judiciary Committee on Tuesday for one of their biggest hearings yet—the witness invokes executive privilege while openly trolling the committee for the ostensible purposes of launching a Senate campaign.
Were that the extent of the pushback, it might be manageable. But Democrats have also had little luck securing Trump’s tax returns and revelations about his possible profiting off the presidency. Those two avenues of oversight are also tied up in the courts, with possible resolutions—and bombshells—months or even years away.
Spinning their investigative wheels, Democrats have grown more despondent over the likelihood that they are at the mercy of the courts, unless the party decides to turn to the one tool they have not yet used. But that tool—impeachment—also happens to be something that leaves the party vexed.
“I think it's becoming increasingly clear,” said Rep. Dan Kildee (D-MI), “that absent action by a court, this president is not going to cooperate. Which, for those of us who support the impeachment inquiry, leaves impeachment as probably the strongest tack that we can take to try to enforce our will.”
Adding to the frustrations is a ticking political clock. There are just three months to go until the start of a presidential election year, and most Democrats believe that the environment in 2020 would make impeachment a more difficult, if not near impossible, lift. Publicly, members of the committees investigating Trump say they will act on the evidence they collect whenever they collect it, whether comes soon or drags further into the election season.
“We will continue with our investigation throughout the election season, if that's what it takes,” Rep. Hank Johnson (D-GA), a member of the House Judiciary Committee, told The Daily Beast. “The president is trying to run out the clock. He's trying to keep us at bay by putting us in litigation through the election—that's his game plan. Our response is just to play that litigation game, but at the same time, encourage the judicial branch to move as quickly as possible.”
But some lawmakers fear that the open-ended, painstakingly paced probe creates real political vulnerabilities. There’s an increasing perception among voters that Democrats are solely focused on going after Trump, said Rep. Jim Himes (D-CT), a House Intelligence Committee member who supports an impeachment inquiry.
“We're going to continue to do the best job that we can. But we also need to be really careful that we're not setting ourselves up to hand Wisconsin, Michigan and Pennsylvania to the president,” said Himes. “That's not to say I have disdain for the Constitution. I'm just saying we need to be really careful that we don't compound the constitutional injury by helping this president win reelection.”
Party organizations have echoed this point too, circulating polling that indicates that the public already believes House Democrats are focusing too much on impeachment. A survey commissioned by the party’s House campaign arm, sent as a memo on Sept. 3, said their polling has consistently found that “perceptions of the priorities of Democrats in Congress were not aligning with the issues voters said were most important for Congress to address.”
According to a copy of the memo, which was obtained by The Daily Beast and first reported by Politico, only 10 percent of voters surveyed said they felt that investigating Trump should be a priority for the Democratic majority, while 54 percent of them believed that it is a top priority for the party.
“It all comes down to perception,” said a senior House Democratic aide associated with the moderate wing of the party. “If every single day cable news is talking about impeachment, the American people will think Democrats only care about impeachment.”
Many Democrats believe that public opinion on impeachment is hardly fixed—and they’re hopeful court action will boost their efforts by ginning up public support.
“In the short term, [the administration] can make it a mess, create confusion for the public, and really try to wear the patience down of people in Congress,” said Rep. Eric Swalwell (D-CA), “but there's also this clock ticking in the courts where there's going to be a cascade of court rulings pretty soon that will be against them, I believe.”
The Oversight Committee’s subpoena to obtain years of financial records from Trump’s businesses, for example, was kept alive over the summer, in a welcome development for Democrats. However, the Ways and Means Committee’s lawsuit to obtain the president’s tax returns, filed in July, is poised to stall for months and may possibly only be resolved by the Supreme Court.
The Judiciary Committee, meanwhile, is asking courts to expedite their requests for documents and testimony from a variety of Trump associates by explicitly saying they are necessary in order for the committee to arrive at a decision on whether to pursue articles of impeachment.
It’s possible that congressional Democrats also get some relief from state and federal prosecutors who are going after some of the same information. On Tuesday, the district attorney in Manhattan, Cyrus Vance, subpoenaed eight years of Trump’s tax returns. His office has far more leverage to obtain that information than lawmakers do, but less leeway to make that information public unless it files criminal charges against Trump or associates.
But former prosecutors cautioned against putting too much faith in the criminal process to reveal the kinds of bombshells many Democrats are salivating for. “Criminal cases take a long time, and things don’t become public for a while,” said Rebecca Roiphe, a former attorney in the Manhattan DA’s office and an NYU law professor. “The war has to be fought on multiple fronts, but too much hope in these criminal investigations is probably misplaced.”
Add it all up, and Democrats are growing increasingly dispirited over the pace and direction of their oversight of the Trump administration heading into a fall that party leaders, including Judiciary Chairman Jerry Nadler, have cast as critical for determining whether or not they move forward on impeachment.
And some members freely admitted that the Trump administration has made their oversight efforts far harder than they initially thought.
“I think we just have to accept the fact that what we thought was going to happen—that the president is just simply going to ignore the law—is what's going on,” said Kildee. “And even if the politics of that are difficult, I don't think that relieves us of our responsibility to pursue it.”