October 10, 2019 | Reading Time: 3 minutes

The Constitutional Crisis Has Arrived

Time for the House Democrats to arrest Rudy Giuliani.

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We have been talking about a constitutional crisis for months now, and I have no doubt many of you are sick of hearing about it. But yesterday will probably be remembered as its official start. That’s when the president said there’s no way no how he’s going to cooperate with the House Democrats on their impeachment inquiry.

To be sure, Donald Trump has been the head an administration of unprecedented lawlessness; his family business has been skimming the public till since the beginning; and the president’s been the indirect cause of much sadism, suffering, and even death. 

But yesterday was the first time the executive branch of the United States government explicitly told the legislative branch it had no business questioning it. That’s like saying we do not live in the constitutional political community we all in fact live in.

The president is playing constitutional hardball. The House Democrats must answer in kind.

The president’s attorneys even accused the House of “illegitimacy,” an extraordinary claim given Article I of the Constitution grants the Congress the authority to do just that. But accusing the House of conducting an “illegitimate” inquiry is also extraordinary coming from a man who cheated to win and hopes to cheat again.

We’d still be going from one outrage to another had the House Democrats not finally drawn a bright line, saying in effect that the president has gone rogue, and that anything he says and does from this point forward will be treated as evidence of his having gone rogue. Adam Schiff, who’s leading the inquiry, has wisely decided to judge all resistance as evidence of the crime of obstruction of justice. (Obstruction of this very nature was part of the articles of impeachment against Richard Nixon.) Because Trump can’t help but foment chaos, we can expect him to continue resisting subpoenas and other legal demands, thus proving the allegations against him. The pace of impeachment has been glacial, but as of right now, it feels inevitable.  

The question is whether the Democrats will proceed without access to people and documents needed for an indictment, or whether they will use the power available to them to compel cooperation from the president’s associates. I don’t know if they have enough information to move forward, but there’s a good reason to use that power.

Trump is playing constitutional hardball. The House must answer in kind.

The Congress has not exercised inherent contempt since the 1920s. That’s when the US Senate authorized the arrest of the US attorney general’s brother for failing to appear on subpoena. The AG’s brother appealed his case all the way to the US Supreme Court, where Justice Willis Van Devanter, writing for the majority, wrote that: “Each house of Congress has power, through its own process, to compel a private individual to appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution” (italics mine).

Now’s the time to dust off that power. For one thing, Trump must be held accountable. For another, his personal lawyer, Rudy Giuliani, is at the heart of the president’s impeachment for the extortion of a foreign leader to interfere in 2020. Like his client, Giuliani has said there’s no way no how he’s going to cooperate with the Democrats.

It so happens that two of Giuliani’s Soviet-born business associates were arrested this morning in Florida on campaign finance charges. Lev Parnas and Igor Fruman were key figures in Giuliani’s effort to get Ukraine to “investigate” Democrat Joe Biden. Parnas and Fruman were also involved apparently in a scheme to funnel Russian money to GOP campaigns. An unidentified member of congress was asked to help remove the US ambassador to Ukraine in exchange for cash. (The Daily Beast’s Sam Stein says it’s Pete Sessions.) The stench of criminality is now wafting over Giuliani. Arresting and detaining him until he cooperates would seem entirely reasonable.

Of course, the Democrats don’t have to go as far as jailing people. (There is a jail at the Capitol, but detainees would likely be detained in a hotel.) They can issues fines. They can also, as Josh Chafetz wrote for the Times today, zero out funding in the next budget for the White House Counsel’s Office, thus starving the president’s legal defense. But the arrest and detention of Donald Trump’s bag man would have a certain dramatic flourish befitting of America’s first reality-television president. The long-awaited constitutional crisis has arrived. The House Democrats must rise to the occasion.

—John Stoehr

John Stoehr is the editor of the Editorial Board. He writes the daily edition. Find him @johnastoehr.

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