Democrats are playing voters on their fantasies for impeachment

Democrats are playing voters on their fantasies for impeachment
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In Washington, the race is on for the “black jersey.” That was the jersey awarded in the early 1900s to the slowest rider in a bicycle race. The renowned champion, Luigi Malabrocca, took so long to race a course after stopping for lunch and an aperitif that most of the fans went home before he crossed the finish line. But Malabrocca is about to be outdone, as both Congress and the White House strive to slow down investigations to prevent any real impeachment. The hope is that the public will eventually go home, or at least to the polls, with the prepackaged narratives of the two parties. From privilege fights to legislative investigations, the goal is to slow down the impeachment process without appearing to do so.

President TrumpDonald John TrumpNational Archives says it altered Trump signs, other messages in Women's March photo Dems plan marathon prep for Senate trial, wary of Trump trying to 'game' the process Democratic lawmaker dismisses GOP lawsuit threat: 'Take your letter and shove it' MORE is promising to challenge any impeachment proceeding. It would be a meritless claim, but the White House is likely more interested in the ultimate delay than the ultimate decision. While I do not see a compelling case for impeachment, this would constitute a frivolous challenge to Congress under Article I. Impeachment, after all, is a process that the framers left to Congress, and there is little basis for judicial review or intervention. The White House knows that, but it also knows it has key allies in slowing down impeachment. Those allies are the Democrats.

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It has been apparent for months to many of us in Washington that the Democratic leadership is opposed to actually impeaching Trump rather than simply going through the motions of investigations. While many Democratic lawmakers raised impeachment during their 2018 midterm campaigns, House Speaker Nancy PelosiNancy PelosiRepublicans will pay on Election Day for politicizing Trump's impeachment Trump chooses high-profile but controversial legal team Trump: Impeachment timing intended to hurt Sanders MORE and other leaders quickly downplayed any plans for impeachment after winning the House. That bait and switch has not gone over well with many voters.

This week, Representative Maxine WatersMaxine Moore WatersGearing up for a chaotic year on K Street Maxine Waters: Republicans 'shielding' Trump 'going to be responsible for dragging us to war' Green says House shouldn't hold impeachment articles indefinitely MORE, one of the leading voices for impeachment through the midterms, reportedly adopted a more muted position by not opposing the leadership plan to put impeachment on the backburner during a closed conference with Democratic members. Thus, Democratic presidential candidates and members of Congress continue to call for impeachment, while the House Democratic leadership guarantees the clock will run out on any viable impeachment effort.

The great danger is that House committees could inadvertently stumble over an impeachment offense that forces their hands. However, with all of the mutually desired litigation, the calendar is likely to protect members from actually having to fulfill their pledges. The strategy is to continue investigating as a matter of oversight rather than impeachment. This will eat up time while hopefully damaging, but not removing, Trump. Pelosi can then claim at the end of the year that there is no practical time for impeachment. It is all meant to satisfy Democratic voters still being told that the party wants to impeach, if only there was more time or evidence.

The fact is that there is enough time, if Democrats move aggressively. By starting an impeachment investigation, Democrats would have a better position to quickly and decisively defeat privilege arguments. This is a function of the Constitution to which the courts would yield. After all, impeachment is mentioned in the Constitution, while executive privilege is not. In seeking information for impeachment, Congress would place itself in the strongest possible position. But if your purpose is to delay, long privilege fights are better, like Malabrocca stopping for an aperitif.

Trump took an unprecedented and commendable position in waving executive privilege over the special counsel report. He now seems to be moving aggressively to bulldoze that higher ground by reportedly asserting privilege over the testimony of everyone, from former White House counsel Don McGahn to officials with knowledge of Trump overriding security officials to give Jared KushnerJared Corey KushnerDOJ releases new tranche of Mueller witness documents Jared Kushner's sister-in-law Karlie Kloss says she will vote against Trump in 2020 The Hill's 12:30 Report: Senate receives impeachment articles as trial opens MORE security clearance.

Most of these challenges will fail. Congress has oversight authority in these areas, and the White House already has waived executive privilege for the information contained in the special counsel report. There are viable privilege claims to be made, even with regard to McGahn, but they are limited. A court likely will allow the questioning of McGahn to the full scope of the special counsel report. That is a wide range of information that has been moved into the public domain, and the White House will not be able to get that cat to walk backward. But that is not the point here. It just wants to slow down the cat, in a mutual desire to run out the clock.

The same is true on other privilege assertions, like the one barring the testimony of former White House personnel security director Carl Kline, who was one of a number of national security experts ordered by Trump to give a top secret clearance to Kushner and others despite objections from legal and security experts. Congress now is threatening a contempt sanction against Kline. However, such a case would go to the Justice Department to prosecute, and it would refuse, just as it had refused to prosecute former Attorney General Eric HolderEric Himpton HolderParties to wage census battle with outside groups Welcome to third-world democracy and impeachment Uber settles sexual harassment charges for .4 million MORE for withholding evidence from Congress. This move will, therefore, likely result in no real action.

However, it will take time, and that is the point. So welcome to the “corsa al ultimo posto,” or the “race for last place.” The sad part of all this is that the voters, as the “marks” in this Washington con game, are likely to buy the whole thing. The key with any good con is to use the fantasies of the marks to carry out the scam. This political shell game is designed to keep voters believing they can still win. There never was an impeachment pea under any of the three shells, but that is not likely to matter in the end.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He testified on the Bill ClintonWilliam (Bill) Jefferson ClintonTrump chooses high-profile but controversial legal team The Hill's 12:30 Report: Trump beefs up impeachment defense with Dershowitz, Starr Trump to add Dershowitz, Ken Starr to impeachment defense team MORE impeachment standard, represented former attorneys general in that litigation, and served as lead defense counsel in the last Senate impeachment trial.