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What just happened: The White House declared war on the House impeachment inquiry on Tuesday in an eight-page letter to Democratic leaders that condemned the investigation as “illegitimate” and “a naked political strategy” to undo the 2016 election, portending a legal standoff with Congress that could result in a constitutional crisis.

The letter (which led the prominent libertarian legal scholar Ilya Somin to wonder on Facebook whether “the White House counsel was sick the day they taught law at law school”) came shortly after the administration blocked Gordon D. Sondland, the United States ambassador to the European Union, from testifying before Congress about President Trump’s efforts to pressure the president of Ukraine into investigating Joe Biden. But as Amy Fiscus, The Times’s national security editor, has noted, “What’s unusual here is that Mr. Trump has declared all-out war on oversight efforts and the impeachment inquiry, not just a refusal to share information about a particular issue.”

The debate: How should the House respond?

[The big debates, distilled. This guide will put in context what people are saying about the pressing issues of the week. Sign up for our new newsletter, Debatable.]

THE NEXT STEPS

On Wednesday, I spoke with Ryan Goodman, a professor at New York University School of Law and co-editor in chief of the blog Just Security, about some of the House’s options. This interview has been edited and condensed.

Option 1: Vote to formalize the impeachment inquiry

The letter the president’s counsel sent to Democratic leaders in the House claimed the impeachment inquiry is illegitimate because Speaker Nancy Pelosi simply announced it at a news conference. The House hasn’t voted on it in any official capacity, as happened during the Bill Clinton and Richard Nixon impeachment procedures. This is a criticism The Wall Street Journal’s editorial board has also made.

What do you think of this argument?

R.G.: I don’t think there’s any legal merit to it. As a matter of constitutional law, nothing turns on the distinction between a full House vote and the current impeachment inquiry. And the Constitution allows the House to set its own rules.

But I do think that something that is valid in that line of analysis is that for such an important and solemn matter, you would want the full House to decide at some stage in the process. During the Clinton impeachment there was a decision by the House Judiciary Committee to first get a full House vote. But the committee said that it’s because of the importance of the issue that we feel it necessary to get a full House vote, not because it’s legally required by any stretch. It’s more in the political realm.

[The Times editorial board explores the pros and cons of formalizing the impeachment inquiry.]

Would the House’s tactical position be strengthened by approving a formal impeachment inquiry?

R.G.: It’s very clear that it would remove all doubt in litigation and otherwise if the full House did vote to approve the impeachment inquiry. On the other hand, it does have an unintended effect on other matters.

The suggestion that it’s required as a predicate or precondition to get a full House vote of approval before various committees can consider whether or not they can issue articles of impeachment I think can hamstring Congress in other matters that they’re currently considering or might consider in the future.

A specific example of that could easily be emoluments questions or federal campaign violations in 2016 with hush money payments or abuse of power and obstruction identified by the Mueller report. It would be undermining to the position that Congress has adopted in litigation to suggest that they have to have first gone through a formal, full House vote.

[In Just Security, Molly Claflin: “A Formal Vote to Authorize Impeachment Won’t Fix White House Obstruction”]

Option 2: Fine or arrest White House officials

When it comes to holding people in contempt of Congress for defying subpoenas, the House has three forms of recourse. One is to let a subpoena wend its way through the courts, which could take months or even years to resolve. The second is to refer the issue to the Department of Justice, which under Attorney General William P. Barr is unlikely to follow through. And the third is called “inherent contempt,” whereby the House could fine or arrest officials who don’t comply with subpoenas.

Inherent contempt hasn’t been used since the 1930s. It seems to be viewed as something of a nuclear option. What do you see as the arguments for and against that option?

R.G.: The argument for putting it on the table is that it’s a low-yield nuclear weapon. Escalatory fines, so that they could impose a financial penalty, specifically on individuals, I think are more politically palatable than any attempt to exercise a deprivation of liberty — an arrest.

The second piece is that, in my understanding, during Watergate there was a threat to use inherent contempt powers. So in favor of it would be to look for precedents of threatening the use of it, because there would be a sense that it’s not as unprecedented for Congress to invoke this kind of authority. And there’s the argument that unprecedented times require unprecedented countermeasures: The defiance of the Congress is so systematic by the administration that maybe it calls for norm disruption on the part of the House as well.

That’s in its favor, but against is still that it’s so unusual that it might distract from the larger question here, the impeachable conduct of the president and the alleged cover-up. And going down the road of contempt powers could easily land the House in prolonged litigation.

[Weeks before the Watergate hearings began, Senator Sam Ervin said, “I’d recommend to the Senate they send the sergeant-at-arms of the Senate to arrest a White House aide or any other witness who refuses to appear.”]

[At NBC News, Glenn Kirschner: “Why Democrats in Congress Should Use Inherent Contempt to Force Trump Officials to Testify]

Option 3: Continue with business as usual

As Noah Feldman writes in The Times, “The third article of impeachment adopted by the House Judiciary Committee against Mr. Nixon charged him with contempt of Congress for ignoring subpoenas issued by Congress.” Some argue that the Democrats might bolster their case by allowing the White House to continue to obstruct their inquiry while waiting for the courts to rule on their subpoenas.

What are the risks of this strategy?

R.G.: The biggest risk is for the House to be predicating any of its strategy on expeditious vindication in the courts. Members should have very high confidence that they would be ultimately vindicated in the courts, but it will have no practical value given how long that will likely take.

Do they have any other options?

R.G.: One other option that they definitely have is to threaten that the very actions by the White House and other senior officials count as impeachable offenses, for whatever that’s worth. In other words, they can ratchet up the likelihood that the stigma of impeachment will attach to the presidency and potentially to other senior officials like the secretary of state for preventing Congress from carrying out its duties. I think it’s a realistic one, for however much it counts.

One of the lessons of Watergate is that Nixon started to plummet in the polls in part because of obstructing Congress. So it wasn’t just the revelations that it was taking place but trying to impede the ability of Congress to get to the facts.

[In The Times, Josh Chafetz argues for another option (in addition to inherent contempt): taking funding away from the White House.]

WHAT’S NEXT

The ultimate fate of impeachment rests on whether Democrats can turn the tide of public opinion against President Trump to the extent that it is no longer tenable for Senate Republicans to support him. How best to effect that change is a question not of political science but of political instinct.

For now, it appears that the Democrats have decided to stay the course. On Thursday, Nicholas Fandos reported for The Times that House chairmen leading the impeachment inquiry had issued a fresh round of subpoenas pertaining to the Ukraine affair to the White House and its allies.

Do you have a point of view we missed? Email us at [email protected]. Please note your name, age and location in your response, which may be included in the next newsletter.

MORE PERSPECTIVES

Molly Reynolds writes about “the truth that White House letter just laid bare.” [The New York Times]

Peter Baker explains that “Trump’s sweeping case against impeachment is a political strategy.” [The New York Times]

Frank Bowman writes that the historical and legal claims in the White House counsel’s letter don’t stand up to scrutiny. [Just Security]

The Wall Street Journal editorial board says the House’s impeachment inquiry is being conducted in a “secret and unfair way.” [The Wall Street Journal]

Ryan Cooper argues that President Trump’s obstruction “requires a maximal response.” [The Week]

WHAT YOU’RE SAYING

Here’s what readers had to say about the last debate: Did Trump just backstab our Kurdish allies for Turkey?

Alan Kennedy from Colorado wrote in:

Three months ago I was serving in Syria — in an area Turkey just attacked. It is possible that the Syrian Democratic Forces I met, who sacrificed much and literally led the way in the war against ISIS, are dead. President Trump is right that we need to end “endless wars.” But allowing Turkey to wipe out some of the most courageous allies we have is irresponsible and risks humanitarian disaster.

You noted that few dare to imagine responsible withdrawal. I imagine a peace process coordinated with our allies and the U.N. In Syria, I imagine the U.S. facilitating negotiations between Turkey and the S.D.F. so that the Kurds have a place to call home. Then, withdraw responsibly while keeping our promises. Is that too much to ask?

And John Bowman from Texas commented:

The war against Al Qaeda in Afghanistan has gone on for nearly 20 years. The reason given for continuing to tolerate U.S. soldiers’ deaths and civilian “collateral damage” is that if we leave, terrorists will surely take over. I am no expert on foreign affairs, but isn’t this the reason some give for remaining in Syria? Our defense budget is huge — our deficit growing. Endless war seems like the definition of insanity.

Spencer Bokat-Lindell is a writer for the Opinion section. @bokatlindell

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