"WASHINGTON — As the White House and Congress escalate their constitutional showdown, President Trump and his team are essentially trying to call what they see as the Democrats’ bluff. The message: Put up or shut up. Impeach or move on.
Confident that there are not enough votes to remove him from office through an impeachment trial in the Senate, Mr. Trump and his advisers have chosen the path of maximum resistance, calculating that they can put the Democrats on the defensive in a fight that is politically useful for the president.
The decision to assert executive privilege and defy subpoenas across the board suits Mr. Trump’s natural combative instincts and fits the grievance narrative he has adopted by arguing that the establishment is out to get him. The president seems eager to force the hand of Democrats who are investigating him as if they are conducting an impeachment inquiry without actually calling it that and risking any of the political problems that might come with it.
“If it’s an impeachment proceeding, then somebody should call it that,” said Rudolph W. Giuliani, one of the president’s personal lawyers. “If you don’t call their bluff now, they’ll just keep slithering around for four, five, six months.”
He added, “It’s a valid strategy to test: What are you doing?”
Democrats recognize what’s going on. “Trump is goading us to impeach him,” Speaker Nancy Pelosi said at a Cornell University event in Manhattan this week. So far, they have neither taken the bait nor backed off.
Advisers to Mr. Trump said that there was no overarching White House strategy and that they simply remained on the same war footing they have been on since the day he took office more than two years ago. Embattled is just the natural state of affairs in the Trump White House. And resisting congressional subpoenas is the first reaction of many presidents, even if this one has taken it a step further by declaring that he will refuse any and all of them.
Mr. Trump has been focused in recent days on overseas crises and challenges, holding a hastily called meeting with advisers early Wednesday morning about a reported threat of force by Iran against American forces in the Middle East. He is also said to be absorbed by the developing Democratic primary battle to choose a challenger to him in next year’s election.
An internal poll of 17 states taken by Mr. Trump’s campaign showed one possible opponent, former Vice President Joseph R. Biden Jr., overtaking Mr. Trump in a head-to-head contest, according to people familiar with the numbers. Mr. Trump fared better in a matchup against Senator Bernie Sanders of Vermont, but Mr. Trump’s low approval numbers were dragging him down against the Democrats. It was unclear whether the campaign poll-tested anyone else in the field.
The president’s strategy is being directed by the White House counsel, Pat Cipollone, left, who has strong views about executive power.Doug Mills/The New York Times
Still, that does not mean he is disengaged from the fight underway in the aftermath of the investigation by the special counsel, Robert S. Mueller III. The president expressed anger on Thursday about a subpoena issued by the Senate Intelligence Committee to his eldest son, Donald Trump Jr., and privately complained to advisers about Senate Republicans who have sought his family’s help politically but are now trying to compel his son to testify.
The president’s strategy is being directed by Pat Cipollone, the White House counsel, and senior Justice Department officials. Like Attorney General William P. Barr, Mr. Cipollone has strong views about executive power.
Mr. Trump has been watching Fox News and other coverage of congressional efforts to obtain the parts of Mr. Mueller’s report that were redacted by Mr. Barr, people close to him said. At times, his impulses have contradicted the lawyers’ advice, they said.
He has asked some confidants why they should not just reveal everything in the 448-page Mueller report, the vast majority of which has already been made public. But he has also said he wants everyone to move on so he can concentrate on a presidential agenda, a sentiment he expressed on Twitter throughout last weekend.
As for whether Mr. Mueller should be allowed to testify before the House Judiciary Committee, the president reversed himself on Thursday and said that he would leave the decision to Mr. Barr, who has said he does not object to such an appearance. But in private, Mr. Trump has continued to poll-test advisers about whether the Justice Department should instead seek to block Mr. Mueller from appearing.
Legal scholars disagree about the administration’s chances of prevailing in court on its privilege claim and subpoena fights, but the White House sees little downside in waging the battle. Even if Mr. Trump were to lose, the more that the various investigations of the president look like a partisan food fight, the easier it may be to dismiss them as mere politics.
Yet the president risks actually pushing Democrats into doing what they otherwise might not have. After Mr. Mueller wrapped up his investigation by saying that he had not established a conspiracy between Mr. Trump and Russia and could neither accuse nor exonerate him of obstructing justice, House leaders poured water on the prospect of impeachment. While Democrats could impeach him in the House, there is no sign that they could muster 20 Republican senators needed for the two-thirds vote required for conviction in the Senate.
But the president’s stiff-arm response to congressional requests for testimony and information has angered Democrats and some say increased the chances that they may yet pursue impeachment. Among the actions deemed high crimes in the articles of impeachment brought against President Richard M. Nixon before his resignation in 1974 was refusing to comply with congressional subpoenas.
Three weeks ago, Representative Steny H. Hoyer of Maryland, the Democratic majority leader, said that “impeachment is not worthwhile at this point.” After Mr. Trump asserted executive privilege this week to block the release of the unredacted version of Mr. Mueller’s report, however, Mr. Hoyer sounded more open to impeachment, saying that “if the facts lead us to that objective, so be it.”
Attorney General William P. Barr has said he does not object to lawmakers hearing from the special counsel.Erin Schaff/The New York Times
Moreover, one of the legal arguments raised by Mr. Trump’s allies may encourage rather than discourage an impeachment effort. Defenders of the president’s decision to resist subpoenas for, say, his tax returns maintain that Congress has overreached because it has no legitimate legislative purpose to make the request.
But even they acknowledge that congressional demands for documents and testimony would have a stronger legal justification if there were an active impeachment inquiry, in which case the House would be acting more clearly within its constitutional jurisdiction.
Allies of the White House said the strategy was not about delay, as some have speculated. Instead, Mr. Trump’s White House lawyers have staked out a strong position to defend the executive branch against what they call legislative encroachment.
“This is about defending the core constitutional prerogatives of Article II, the executive,” said David B. Rivkin, an administration lawyer under Presidents Ronald Reagan and George Bush. “The idea that the House has that kind of oversight power is completely distorting the separation of powers and making the president a ward of Congress.”
Michael B. Mukasey, who served as attorney general under President George W. Bush, said the imperative was one familiar to presidents of both parties. “Look, the president has various prerogatives and the one thing he wants to make sure is when he passes this off, he hasn’t given them away in a way that binds his successor and other successors down the line,” he said. “That’s not unique to this administration.”
Mr. Trump has argued that he cooperated with Mr. Mueller’s investigation by permitting aides like his former White House counsel, Donald F. McGahn II, to testify and providing reams of documents, although the president himself refused to be interviewed in person. Mr. Trump would much rather have this fight with Congress now than next year when he will be in the middle of a presidential campaign, Mr. Giuliani said.
“He’s feeling that, except for a couple of these people, that most people are ready to move on,” Mr. Giuliani said, adding that Democrats could lose 30 to 40 seats in the House if they try to impeach Mr. Trump. “Part of the strategy is to flush them out, and part of it is also a calculation that the public really isn’t particularly interested in this anymore and that they’re going to look bad by fighting it.”
While Mr. Trump is pushing Democrats on impeachment, Mr. Giuliani dismissed the idea advanced in some quarters that the president believes it would actually be politically advantageous for Democrats to impeach him without convicting him because it would rally Republicans coming into the presidential election.
“Nobody wants to be impeached,” Mr. Giuliani said. “I think Clinton would say, even though it worked out to his favor, he would have rather not been impeached.”
A Strategy Emerges to Counter House Democrats: Dare Them to Impeach
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