Democrats are running out of stunts to pull from impeachment playbook

Democratic leaders in Congress proved the perils of “jumping the shark” this month. The phrase comes from the 1977 episode of the television comedy “Happy Days” in which one of its leading characters, the “Fonz,” jumped over a shark in a water skiing stunt in swim trunks along with his signature leather jacket. That moment was viewed as a desperate ratings stunt by a dying television series struggling to keep viewers engaged. Today, the phrase has come to define similar instances of desperation.

With the many overhyped political moments of the last two years, it is not clear when the partisan shark jump occurred. Soon after the appointment of special counsel Robert MuellerRobert (Bob) MuellerCNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump CNN anchor rips Trump over Stone while evoking Clinton-Lynch tarmac meeting The Hill's 12:30 Report: New Hampshire fallout MORE, legal experts and commentators on air began confidently declaring the crimes of Trump campaign “collusion” were obvious and established. As the report approached completion, commentators spoke widely of a finding of criminality as a virtual given.

Yet, Mueller then stated that his investigation “did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.” The Russia investigation without criminal Russia collusion was like Geraldo Rivera opening the safe of Al Capone only to find empty bottles. To make matters worse, Mueller did not reach a conclusion on obstruction but Attorney General William BarrBill BarrBarr says Ginsburg 'leaves a towering legacy' Republicans call for DOJ to prosecute Netflix executives for releasing 'Cuties' Trump doesn't offer vote of confidence for FBI director MORE and Deputy Attorney General Rod RosensteinRod RosensteinDOJ kept investigators from completing probe of Trump ties to Russia: report Five takeaways from final Senate Intel Russia report FBI officials hid copies of Russia probe documents fearing Trump interference: book MORE found that the evidence would not support a criminal charge of obstruction.

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Democrats then proceeded to try and shift attention from collusion to obstruction, but their unwillingness to actually open an impeachment inquiry has undermined their claims that obstruction crimes were well established. Almost instantly, you could feel national attention waning and lawmaker desperation growing. There have been some cringeworthy stunts during the past few weeks. Democrats tried to make redactions in the report be the focus, in order to avoid questions over the refusal to move toward impeachment. The problem is Barr released 92 percent of the report and 98 percent of the report to select members of Congress.

Barr was also willing to testify before the House Judiciary Committee, just as he did before the Senate Judiciary Committee. Democrats, however, then added a rare condition requiring Barr to agree to be questioned by the committee staff. Barr predictably refused, as most of his predecessors would have done. Democrats then held a theatrical hearing with an empty chair and a bucket of fried chicken on the table where Barr would have sat. Some ate up the fried chicken for the cameras as most of us winced.

Democrats had called for Mueller to appear before them on Wednesday. Mueller did not show, despite Barr showing a willingness to have him testify. Instead, the committee called for a hearing with constitutional experts to discuss the executive privilege claims raised by the White House. I was one of those experts, and the hearing did not exactly turn out as the Democrats planned. They have insisted that President TrumpDonald John TrumpObama calls on Senate not to fill Ginsburg's vacancy until after election Planned Parenthood: 'The fate of our rights' depends on Ginsburg replacement Progressive group to spend M in ad campaign on Supreme Court vacancy MORE had already waived privilege to undisclosed evidence shown to Mueller. The committee witnesses, however, agreed that there is no such waiver.

Worse, the witnesses agreed that Barr could not release the “full and unredacted report” to Congress including any grand jury, or Rule 6(e), evidence. That is in direct contradiction to weeks of demands for the unredacted report along with a subpoena that demanded disclosure of the entire report. The committee maintained that “neither Rule 6(e) nor any applicable privilege barred disclosure of these materials to Congress.” Yet, the expert witnesses it called on have now testified that is not true.

As I noted to the committee, the subpoena, which is the very basis for the earlier contempt vote, was demanding an unlawful act from Barr, and the committee then held him in contempt for not committing that unlawful act. The key to setting up someone for contempt of Congress is to draft a subpoena that he might actually be able to legally fulfill. Notably, despite all of the punditry and cable news coverage of it, the contempt citation has not yet been submitted to the full House for a vote, let alone to a court for review. That is probably not because the contempt case is too strong.

The House committee also had problems with its demand for the other redacted material. I noted to the committee that roughly 2 percent of the redacted material was grand jury material barred under Rule 6(e). That leaves 6 percent, to which Congress, but not the public, has access now. However, most of that material was redacted as part of ongoing litigation and investigations. Indeed, the judges handling cases like those of Trump associate Roger StoneRoger Jason StoneOur Constitution is under attack by Attorney General William Barr Justice IG investigating Stone sentencing: report Romney says Trump's protest tweets 'clearly intended to further inflame racial tensions' MORE or resigned national security adviser Michael Flynn have imposed court orders. Barr could not simply release that material as demanded by Congress, and no witness disagreed during the hearing.

That would cover virtually all of the redactions that Democrats spent a week highlighting as the primary issue in their minds. Moreover, Judge Emmet Sullivan, who is presiding over the Flynn prosecution, issued an order to release some of the redacted material covered by that case. The order again supported Barr in showing that such grand jury information required an order from a court and could not be simply released by Barr.

The day following the hearing, Democrats held yet another spectacle of reading the Mueller report in a marathon for 12 hours on CSPAN.They even brought in a celebrity, although even my childhood friend, John Cusack, could not generate much buzz. The half day coverage of this Gregorian reading had plenty of us longing for the regular mind numbing CSPAN coverage of the “special order” speeches to an empty House chamber.

One reason for the waning audience is that Democrats are stepping on their own lines. The week that their witnesses were contradicting the position of the House Judiciary Committee and the staff was marketing Mueller CDs, Democrats held a closed door party caucus. In it, House Speaker Nancy PelosiNancy PelosiPelosi: Ginsburg successor must uphold commitment to 'equality, opportunity and justice for all' Bipartisan praise pours in after Ginsburg's death Pelosi orders Capitol flags at half-staff to honor Ginsburg MORE reportedly told Democratic members she has no intention of moving on impeachment. Imitating disgruntled Democratic voters, Pelosi said, “Some of our folks are a little bit ‘Why are we not impeaching the president?” She then added, “They get a little down.”

Well, they are a “little down” because Democratic members of Congress, including several presidential candidates, continue to assure Americans that Trump is guilty of impeachable offenses and that they want to open an inquiry. Representative Maxine WatersMaxine Moore WatersPelosi: House will stay in session until agreement is reached on coronavirus relief Omar invokes father's death from coronavirus in reaction to Woodward book Business groups increasingly worried about death of filibuster MORE slammed Trump, saying he has “done everything that one could even think of” to trigger an impeachment vote in the House. Without impeachment, Democrats do not even have a shark to jump. Watching House Judiciary Chairman Jerry NadlerJerrold (Jerry) Lewis NadlerTop Democrats call for DOJ watchdog to probe Barr over possible 2020 election influence House passes bill to protect pregnant workers House Democrats postpone vote on marijuana decriminalization bill MORE leap over a bucket of fried chicken simply does not have that same “Fonz” cachet.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.