This is how democracy ends: Not with a bang, but with a long debate over whether we’re using the right words. ~ DAHLIA LITHWICK
And now for a pause from our regular programming to ponder whether the U.S. is in a constitutional crisis.
In groping for an answer, let's first confront what may be the three best arguments for there not being a crisis. First, that other presidents have clashed with Congress, most recently Barack Obama over subpoenas against Attorney General Eric Holder by the Republican congressional leadership. Second, that the deepening battle royale between the House Democratic leadership and Donald Trump on oversight and investigative powers is exactly what the Constitution envisioned. And third, that many of Trump's assertions of executive privilege may well be legal under the Constitution, which bestows sweeping powers and authority on the president.
All three arguments are factually accurate, but only to a point. Where they founder is in applying the Duck Test. You know, "If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck."
By that simple measure, the U.S. is indeed in a constitutional crisis and has been since Trump put his hand on the Lincoln Bible on January 21, 2017, told the first of many thousand of lies as president in swearing to uphold his oath of office and then, in his first act of office, signed an executive order closing America's borders to refugees from seven Muslim countries. Federal courts struck down the ban, but Trump told customs agents to enforce it.
Deepening the crisis is that Trump has cleverly framed the current state of play as a standoff between himself and Democrats. In other words, politics as usual.
This obscures what is really going on -- a shattering of presidential norms so vast and unprecedented, a level of defiance so acute as to be almost too huge to grasp, and a Republican congressional sycophancy all in for Trump -- especially the minions up for reelection in 2020 who fear that if they anger the Don he'll endorse a primary opponent.
John Yoo, architect of the infamous Bush-era torture memos, believes that the impasse is without precedent because Trump -- and Attorney General William Barr -- are trying to block all congressional investigations into the president regardless of law or merit.
"Whether it is a constitutional crisis or constitutional confrontation, I'll let you guys [make] the choice. Maybe I'll stick with confrontation this week," Senator Mark Warner, the top Democrat on the Senate Intelligence Committee, told reporters on Thursday.
Not coincidentally, Warner is riding shotgun for Senator Richard Burr, Republican chairman of the Republican-controlled committee, which has shown an astonishing degree of independence in an era when Mitch McConnell and Lindsey Graham are running neck-to-neck to see who should wear the brilliant yellow Benedict Arnold Traitors Coat.
The president's assertions-by-tweet that it's all just partisan politics has been chopped off at the knees by Burr and his committee, which inconveniently for Trump Sr. has subpoenaed Trump Jr. for an encore appearance regarding some of the dicier aspects of the Russia scandal that he lied about the first time around, thereby inconveniently refocusing the state of play to what it is -- an historically profound standoff between the president and Congress over its constitutionally-mandated oversight and investigative obligations.
Donald Jr., of course, will resist the subpoena under orders from Daddy-O, whose steady diet of Fox News appears to have blindsided him to the possibility that stonewalling all congressional requests might foul his own nest.
The subpoena has set off a firefight between Burr and Republicans like McConnell and Graham who have declared that it's time to move on since in their view Trump Sr. has indeed been "completely and totally exonerated" by Robert Mueller's report on his 22-month Russia scandal investigation.
Senator Marco Rubio, a committee member with whom candidate Trump memorably got into a fight about penis size during the 2016 Republican primary, deftly if unintentionally put the lie to the exoneration crowd in noting "Mueller is a criminal justice investigation. Ours is an intelligence investigation about the Russia threat and about the way our agencies performed."
Meanwhile, Burr isn't the only Republican big shot who is pushing back.
Representative Devin Nunes, who as the Republican chairman of the House Intelligence Committee was an obedient Trump poodle, has joined Adam Schiff, who became the chairman after the Democratic Blue Wave midterm election victories, in subpoenaing Barr to provide the unredacted Mueller report.
In the end -- although the end certainly is not in sight -- what Trump is doing is engaging in a structural assault on congressional subpoena power, although there is no question that is well within its rights. He is daring Democras to initiate impeachment proceedings against him because he knows the Republican-majority Senate will not convict and a failed impeachment effort might enhance his reelection prospects, which have taken a predictably ugly turn as he tries to Clintonize the Joe Biden campaign.
But the standoff is not static, and because of that Trump's calculations may be miscalculations.
In fact, the state of play some 18 months before the 2020 election is fluid and changing, witness the internecine fight over the Donald Jr. subpoena. And a federal judge this week fast tracked Trump's challenge of a Democratic subpoena from the House Oversight Committee for his accounting firm's records. This means that the overall standoff will end up before the Supreme Court sooner rather than later.
I continue to believe that Trump (and Barr) will ultimately fail in the Supreme Court for the same reasons that Richard Nixon failed during Watergate -- the elemental reasons enshrined in the very Constitution that Trump loves to hate.
Click HERE for a comprehensive timeline of the Russia scandal
and related developments.