One of the oddities of the current Russia scandal is that it's unfolding without public hearings. Until very recently, that's how congressional oversight was done: in front of the cameras. Recall that just recently, extensive hearings on the Benghazi incident culminated in the day-long testimony by Hillary Clinton back in 2015.
This is particularly odd, considering the Republicans' hand-wringing sanctimony over "transparency" and the public's right to know, at least with respect to the Nunes Memo. In fact, this memo and the Democratic rebuttal -- along with the firehose of leaks that have poured out of everywhere except (apparently) the special counsel's office -- are the only means by which the public is being informed, which is quite different than what we've experienced in previous government scandals.
This is yet another example of political norms and traditions being discarded by this Republican majority. It certainly offers another argument for Democrats as they try to win back at least one house of Congress next fall. They may not be able to promise that the president will be convicted in an impeachment trial -- something that has never happened -- but they can certainly promise to hold hearings and make these people testify before the American public. This is an important aspect of legitimate congressional oversight, and the unwillingness to hold public hearings, despite all the GOP's theatrics and competing narratives, is yet more evidence that Republicans are more interested in covering up for their president than in doing their duty.
Journalist Elizabeth Drew, author of one of the seminal books on the Watergate scandal, "Washington Journal: Reporting Watergate and Richard Nixon's Downfall," published a piece for the New Republic last week examining the possibility of holding the president accountable in the current political climate. She is not optimistic.
Drew's reasons for thinking this is different than Watergate are far more complicated than the usual bromides about Sen. Howard Baker insistently interrogating everyone to find out "what the president knew and when did he know it" and Barry Goldwater and the boys finally going up to White House and telling Nixon the jig was up.
In the first instance, Drew notes that Baker was actually working with the White House and his famous question were designed to separate the president from the actions of his staff. As for the bearers of bad news trudging up to the White House to tell Nixon he needed to resign, it was actually done because a whole bunch of Republicans didn't want to have to cast that vote to convict him.
Nixon understood by that time that the release of the Oval Office tape recordings had made his battle to stay in office unwinnable, and he left. But as much as people may want to believe that the Republicans were all great statesmen bravely standing up for the nation and the Constitution back then, it wasn't quite that black-and-white.
Both those stories have some relevance to the current situation. Baker was trying to keep the president walled off from the charges so that the aides could take the fall. Just this week, Rep. Devin Nunes of California, Trump's most faithful henchman in the House, went on Fox News and said the president had never even met George Papadopoulos, the former national security adviser who has pleaded guilty to lying to the FBI about his contacts with Russians. (Unfortunately for Nunes, the Trump campaign circulated a picture of Trump and Papadopoulos in a meeting.)
Trump loyalists have tried to portray Papadopoulos, Paul Manafort, Rick Gates and even Michael Flynn as peripheral characters, implying that whatever they did had nothing to do with Trump himself. Drew points out that they may have a problem making the case, since the second article of impeachment against Nixon specifically addressed that situation:
Article II not only charged Nixon with abuse of his presidential powers (for example, using federal agencies, such as the IRS, to wreak revenge on the president’s perceived “enemies”), but also, critically, held the president accountable for the acts of his aides. This wouldn’t apply to a one-off action by an aide, but “a pattern and practice” of some sort of untoward activity. The theory behind this is that the president sets the tone and cannot evade responsibility by winking and nodding and dropping hints. Aides come to understand what he wants done. To many close observers, this more expansive concept of a president’s accountability made Article II the most important one of the three that the committee adopted.
That certainly sounds like Trump, with his demands for loyalty oaths and his demands for his very own "Roy Cohn." His lawyers will undoubtedly try to portray him as a dunderhead who didn't understand what he was saying, as if that's some kind of excuse, but that wouldn't fly -- if we ever got that far.
We learned this week that Trump's lawyers are now telling special counsel Robert Mueller's office that he will not agree to an interview. Loyalists like Chris Christie are saying that there are "no credible allegations" against Trump, and Newt Gingrich insists it's nothing but a perjury trap. Both of those excuses are weak. We can't know what evidence Mueller has, and saying that anyone would have to "trap" a president who has been documented telling more than 2,000 lies in his first year of office into perjuring himself is laughable. It's obvious that they don't want him to testify because he will get himself into trouble.
Unfortunately, even if Trump does talk to Mueller, one of the painful truths of this moment is that we may very well never see what Mueller has -- unless he pushes the envelope and charges the sitting president with a crime. According to this Los Angeles Times op-ed by Ross Garber, an attorney with knowledge of impeachment processes, the special counsel is not empowered to make an impeachment referral to the Congress. Instead he must make a private referral to the attorney general, in this case Deputy Attorney General Rod Rosenstein, who will decide whether it is in the public interest to release the information. I don't think anyone can predict how that would go.
That's why the Democrats must promise to hold public hearings and ensure that the American people can see and hear testimony from the people involved in this investigation. Impeachment is a very high bar, and with or without a referral from the special counsel it's unlikely, short of an enormous bombshell, that Trump would ever be convicted in the Senate. Holding this president to account is a very, very difficult task. That public record may be all we get.
As Drew writes:
It turns out that, under the political conditions we currently find ourselves in, the American system of government does not have the means to remove an unfit president from office . . . all we can do is to try to survive Donald Trump’s presidency.
Our system simply was not designed to deal someone like Trump, or something like the rogue political party the Republicans have now become.