New York Democrat may not impeach president, but his rigorous oversight will be a thorn in his side
Jerrold Nadler remembers when he began to figure out that you’ve got to fight back when life seems unfair.
It was 1957. Nadler was 10. He was at home in Brooklyn watching Disney’s film production of the 1943 novel “Johnny Tremain,” a young apprentice of silversmith Paul Revere on the eve of the American Revolution.
In the movie’s climatic scene, colonial lawyer James Otis delivers a rallying speech to revolutionaries in a cramped wooden attic in Boston.
Otis was the colonial lawyer whose five-hour speech in 1761 decrying British “writs of assistance” would later become the foundation of the Fourth Amendment protecting Americans from unreasonable search and seizure.
At the end of his winding speech, the fictionalized Otis scans the room and leaves his comrades with a parting message: “We fight and die for a simple thing — only that a man can stand.”
“I still remember watching it,” said Nadler, whom aides and confidants claim has a photographic memory.
.. First elected to Congress in 1992, Nadler is poised to become the next chairman of the House Judiciary Committee in January after the Democrat-controlled 116th Congress is sworn in.
Immigration, voting rights, and Justice Department oversight — read: Mueller investigation — are just three of the politically charged issues under the committee’s jurisdiction.
.. Nadler has likewise skirted around such questions, though he said he is eager to conduct oversight hearings on the Trump administration’s policies of
- separating immigrant families at the U.S.-Mexico border,
- increases in anti-Semitic incidents and hate crimes since the president took office, and
- voter suppression, not to mention
- Russia’s interference in the 2016 election.
.. “The question of impeachment is down the road,” Nadler told Roll Call in a wide-ranging interview in which he cast doubts over whether Democrats would ever reach a point where they would seriously pursue impeaching Trump.
“As far as impeachment is concerned, we have to see what Mueller comes up with,” Nadler said. “I certainly wouldn’t predict it.”
.. Though he hails from one of the most liberal districts in the country, New York’s 10th, Nadler’s political demeanor more closely resembles the calculated coolness of party leaders than the pot-stirring of liberal firebrands such as California Rep. Maxine Waters, the presumed next House Financial Services chairwoman
.. Multiple former aides could not identify a single hobby of his that didn’t include reading or debating public policy with his friends.
.. “Hobbies? He doesn’t have any,” said Brett Heimov, Nadler’s former Washington chief of staff. “Reading books — that’s his hobby.”
.. the only yeshiva-educated member of Congress. He does not drink. The most alcohol Nadler will consume is on Jewish holidays: a sip or two of Manischewitz for the Kiddush ritual.
.. He has retained senior staff in Washington and field directors in his district at an astonishingly high rate. Nadler’s Washington director, John Doty, has been with him since the congressman’s first full term. Same with his scheduler, Janice Siegel.
“Twelve years, 20 years, they’ve stuck with him,” said Manhattan Borough President Gale Brewer, a longtime friend. “He’s always had good staff around him.”
.. Just about the only thing that has changed about Nadler since the 1990s is his weight.
In the early 2000s, the congressman peaked at a gargantuan 338 pounds. The butt of countless bodyweight jokes, even among his peers, during the Clinton impeachment trial, Nadler used to take the elevator up to the second floor of the Capitol for votes because he just couldn’t make it up a lone flight of stairs. He underwent a stomach-reduction surgery during Congress’ August recess in 2002 and eventually cut his weight roughly in half.
.. Since arriving in Washington in 1992 after a 15-year stint in the New York state Assembly in Albany representing liberal Manhattan, Nadler has lived out of a suitcase in a series of hotels whenever he’s in town for work. For the first few years, he stayed at the Howard Johnson’s near the George Washington University campus.
.. From the start, Nadler opposed the sweeping 1994 crime bill that originated in the Judiciary Committee over the “three strikes” statute for previously convicted felons.
After the GOP picked up 54 seats and a majority in the Newt Gingrich-led Republican Revolution in the 1994 midterm elections, Nadler confronted Democratic leadership in a head-on clash to chip away at senior members’ monopoly of power at the committee and subcommittee level.
.. After the midterm trouncing, they agitated for a vote on a party rule that would bar Democratic chairs and ranking members from leading subcommittees, too. When Democratic leader Richard A. Gephardt refused, Nadler collected the requisite 50 petition signatures to force a vote.
The caucus voted to adopt the new rule, infuriating some members, including former Energy and Commerce Chairman John D. Dingell of Michigan, who was forced to give up one of his subcommittee posts.
“There were a number of committee chairmen who wouldn’t talk to me for years after that,” Nadler recalled. The clash over the rule, still the party standard, is largely forgotten these days.
Nadler didn’t make waves on the national scene until four years later, though, in 1998 when he emerged as one of Clinton’s most outspoken defenders during the impeachment proceedings.
Nadler relished being a nettle for Republicans as they pursued allegations that Clinton had perjured himself when he told independent counsel Ken Starr in a deposition that he never had a sexual relationship with White House intern Monica Lewinsky.
The New York congressman was a frequent guest on CNN and other TV networks, on which he argued that Clinton may well have perjured himself — but that alone was not grounds for impeachment.
.. “An impeachable offense is an abuse of presidential power designed to or with the effect of undermining the structure or function of government, or undermining constitutional liberties,” he told the crowd of several hundred.
.. “The fact is, impeachment is not a criminal punishment,” Nadler told Roll Call. “There are crimes that you could commit that are not impeachable offenses and there are impeachable offenses that are not crimes. They’re different tests.”
.. During the Clinton impeachment proceedings, Nadler believed a crucial function of the Judiciary Committee was to educate Americans about that distinction between crimes and impeachable offenses.
He pushed for, and secured, a Judiciary hearing in 1998 to answer what constitutes an impeachable offense, even though Democrats were in the minority.
.. “The purpose of the whole impeachment process is to protect the integrity of liberty and of the rule of law and of government, to protect against a person with aggrandized power or who destroys the separation of powers or something like that,” Nadler said.
.. “If you’re serious about removing a president from office, what you’re really doing is overturning the result of the last election,” Nadler said. “You don’t want to have a situation where you tear this country apart and for the next 30 years half the country’s saying ‘We won the election, you stole it.’”
.. And by bipartisan support for impeachment, Nadler does not mean winning over Republican lawmakers.
“I’m talking about the voters, people who voted for Trump,” he said. “Do you think that the case is so stark, that the offenses are so terrible and the proof so clear, that once you’ve laid it all out you will have convinced an appreciable fraction of the people who voted for Trump, who like him, that you had no choice?
.. He has already promised to investigate the circumstances surrounding Sessions’ firing.
.. Part of that probe will focus on “cooperation” between Russians and Americans, including, potentially, some members of Trump’s inner circle
.. Legislatively, one of his top priorities will be to strike a deal with the Republican president and Senate on immigration, an elusive feat for recent administrations.
A road map from the Watergate prosecution shows a potential route for the special counsel to send incriminating evidence directly to Congress.
But a 44-year-old “road map” from the Watergate prosecution shows a potential route for Mr. Mueller to send incriminating evidence directly to Congress. The road map was devised in 1974 by the Watergate special prosecutor, Leon Jaworski, with our assistance. We wrote the road map — actually a report — to be conveyed to Congress; it was called “Report and Recommendation” and served as a guide to a collection of grand jury evidence contained in a single document. That evidence included still-secret presidential tape recordings that had been acquired through grand jury subpoena — but which had been withheld from Congress by President Nixon.
The recent decision by Washington’s Federal District Court chief judge, Beryl Howell, to release the document from the National Archives provides a historic legal precedent that could be a vehicle for Mr. Mueller and the grand jury assisting him to share the fruits of their investigation into possible criminal conduct within the Trump presidential campaign and subsequent administration.
.. In all the discussion about Mr. Mueller’s options when he concludes his investigation, little attention has been paid to the potential role of the grand jury. Chief Judge Howell’s decision unsealing the Watergate road map brings new focus on the role the grand jury might play in the dynamics of the endgame. Although the grand jury is a powerful tool for federal prosecutors, it has historic and independent power and operates under the supervision of the federal judiciary. Following the Oct. 20, 1973, “Saturday Night Massacre” — in which President Nixon forced the Justice Department to fire the original special prosecutor, Archibald Cox — the Watergate grand jury played a critical role in forcing the president to back down, hand over the subpoenaed tapes and appoint a new special prosecutor.
.. Although Mr. Cox had been fired, his staff — duly appointed federal prosecutors — had not. The grand jury, as an arm of the judicial branch, could not be fired by the president. Indeed, Judge John Sirica of the United States District Court immediately summoned the grand juries (there were two) to his courtroom and exhorted them to continue to pursue their investigations and assured them that they could rely on the court to safeguard their rights and preserve the integrity of their proceedings.
.. In the face of Congress’s inability to obtain evidence that the grand jury well knew incriminated the president, we prepared the grand jury report to Judge Sirica and requested that he use his plenary authority to transmit that evidence to the House Judiciary Committee
.. It was carefully written to avoid any interpretations or conclusions about what the evidence showed or what action the committee should take. The report contained a series of spare factual statements annotated with citations to relevant transcripts of tapes and grand jury testimony. Copies of those tapes and transcripts were included as attachments.
.. Much note has been made of the fact that the Justice Department regulations under which Mr. Mueller was appointed actually require him to submit a report to the attorney general. Importantly, nothing in the department regulations prohibits Mr. Mueller’s Department of Justice superior, now Mr. Whitaker, from refusing to release the report.
.. What if Mr. Mueller concludes that the president has committed a crime? The question of whether a sitting president can be indicted remains a subject of vehement debate among scholars. But assuming that Mr. Mueller follows what many regard as “current Justice Department policy” based on several past internal legal opinions that an indictment is inappropriate, then the appropriate place for consideration of evidence that the president has committed crimes rests definitively and exclusively with Congress.
.. If Mr. Mueller has obtained such evidence, his responsibility and the correct operation of our system of government compel the conclusion that he and the grand jury can make that evidence available to Congress through a report transmitted by the court.
.. With the fox now guarding the henhouse, there is sufficient precedent for the grand jury and Special Counsel Mueller to seek the chief judge’s assistance in transmitting a properly fashioned report to Congress.
Babies are seized from their mothers’ arms. Photographs show their anguish. News reports describe their cages. A recording captures their wailing and a U.S. border official’s cold mockery. A defiant President Trump falsely blames others for the misery he created.
And Republican lawmakers respond as they often have: They hold another hearing about Hillary Clinton’s emails.
But they have run this play too many times before.
.. Just 29 seconds into Tuesday’s hearing on the defeated Democratic 2016 presidential nominee and her emails, Rep. Jerrold Nadler (N.Y.), top Democrat on the Judiciary Committee, interrupted to point out that something more important needs attention.
.. “They are children who have been forcibly removed from their parents in our name.”
Republicans on the committee tried to silence Nadler with calls of “order!”
Nadler spoke over them: “The United States should be better than this. We should not put children in cages.”
“Regular order!” called out Rep. Bob Goodlatte (R-Va.), chairman of the Judiciary Committee.
.. Ah, so it’s “regular order” to have the umpteenth hearing about a now-private citizen’s emails, but you’re “pulling” a stunt if you talk about the Trump policy under which border guards are reportedly telling parents they are taking children “for a bath” and the children never return.
No, Republicans, your “regular order” is out of order.
.. As soon as Gowdy had silenced Nadler, two women in the back of the room, with infants in their laps, began to heckle the lawmakers about the inhumanity of Trump’s family separation policy.
Gowdy slammed the gavel to the dais and demanded that the mothers and babies be removed. (At least the Capitol Police had the good sense not to take the babies from the mothers.) “We will be in recess until the Capitol Police restore order!” Gowdy proclaimed.
But “order” remained elusive.
.. Shortly after the moms and babies were evicted from the room, Rep. Elijah E. Cummings (Md.), top Democrat on the Oversight Committee, spoke. “Are we really going to sit here, 70 members of the Congress of the United States of America, in 2018, and have a hearing . . . on Hillary Clinton’s emails?”
.. “We should be able to agree that we will not keep kids in child internment camps indefinitely and hidden away from public view. What country is that? This is the United States of America! We now have reports of parents being deported, but the Trump administration is keeping their children here.”
.. Unhappy that Clinton wasn’t charged in 2016 for mishandling her emails, they had demanded an investigation into the original investigation of Clinton. That investigation, conducted by Justice Department Inspector General Michael Horowitz, last week reported misconduct by some officials but “no evidence that the conclusions by the prosecutors were affected by bias or other improper considerations.”
.. Now Republicans, still unsatisfied, are threatening to investigate the investigation of the investigation of Clinton. Senate Republicans hauled Horowitz in Monday, and House Republicans hauled him in Tuesday, to field questions for seven hours from 70 lawmakers
.. they care more about a scrubbed server than a clean conscience.
When House Republicans impeached Bill Clinton, in 1998, for lying about his affair with the former intern Monica Lewinsky, Nadler emerged as one of Clinton’s most ardent and public defenders, trading his obscurity for a brief moment in the national spotlight. The impeachment, he warned in the House Judiciary Committee, was a spectacular misuse of the power granted to Congress by its founding fathers, a “partisan coup d’état.”
.. The #MeToo movement had just claimed the eighty-eight-year-old congressman John Conyers, of Michigan, who resigned after multiple women came forward to accuse him of harassing and propositioning them.
.. That left a prime opening to succeed Conyers as the top Democrat on the House Judiciary Committee, which would oversee an impeachment of Trump if Democrats were to win control of the House in November’s midterm elections.
.. a leaflet he wrote and handed out to Democratic members said he was “the strongest member to lead a potential impeachment.”
.. Nadler, a stubborn seventy-year-old who spent the better part of two decades battling to stop Trump from rerouting the West Side Highway.
.. if and when it comes to impeachment, he will in no way be a neutral arbiter of the President’s fate but an implacable foe who has already pronounced judgment on Trump’s fitness for office.
.. After Trump fired the F.B.I. director, James Comey, last spring, Nadler said that there was a “very strong case” that it constituted obstruction of justice.
.. saying, “This President presents the greatest threat to constitutional liberty and the functioning of our government in living memory.”
.. he believed that Trump’s refusal to retaliate for the Russian intervention was as serious as if an American Commander-in-Chief had failed to respond to the 1941 Japanese surprise attack on Pearl Harbor.
.. “It’s a fundamental attack on our way of life. It’s a very fundamental attack on the U.S.
.. “What if Roosevelt had said, after Pearl Harbor, ‘We’re not sure who did it. Maybe it was the Chinese. Maybe it was somebody else’? And used that as an excuse not to respond?”
.. A vocal and growing minority of House Democrats is not waiting for the results of Mueller’s investigation to make that judgment on impeaching Trump.
.. a resolution to begin the process of impeachment authored by Congressman Al Green, of Texas, has twice been put to a vote. In early December, it received fifty-eight Democratic votes.
.. forty-one per cent of Americans support impeachment
.. “We started this knowing it’s a marathon and not a sprint,” Steyer told me. “And that it has to do with the information reaching the American people so that people understand this is a deeply unfit and dangerous American President.”
.. But Steyer’s rallying of the Trump-hating party base has put him at odds with Nadler and other Democratic leaders on Capitol Hill, who believe it is both premature and politically damaging to call for impeachment now.
.. Bernie Sanders has publicly pleaded with Steyer and others to avoid “jumping the gun” and pushing for Trump’s removal before it’s possible to achieve it. Other Democrats, especially the campaign strategists who have to advise the Party’s candidates in the midterm elections, fear that impeachment is a political loser with voters, who will cast ballots on more traditional pocketbook issues.
.. “But I would also quote Nelson Mandela: ‘Everything is impossible until it happens.’
.. He considers Steyer’s Need to Impeach campaign “premature at best,” he told me. “I don’t think it’s constructive. We don’t have the evidence now that would be convincing enough to people to justify impeachment.”
.. As a political matter, Nadler added, “I don’t think the election campaign should be fought on the basis of impeachment or no impeachment.
.. In Nadler’s reading of history, Nixon was forced from office because Democrats enlisted enough Republicans in the impeachment case to make Nixon’s presumed conviction in the Senate, by a two-thirds majority, likely; then and only then did Nixon step aside.
.. In the Clinton case, conversely, Democrats stuck together and voted en masse against the House impeachment, and Republicans were unable to secure a conviction on the basis of just their own party’s votes in the Senate.
.. Removing the President is a dramatic move against the popular will; in effect, Nadler said, “you are nullifying the last election,” which is not something to be undertaken “without having buy-in, at least by the end of the process, by an appreciable fraction” of Republicans as well as Democrats.
.. The alternative? “Twenty or thirty years of recriminations. Of almost half the country saying, ‘We won the election; you stole it from us.’ You don’t want to do that. Which means you should not impeach the President unless you really believe that, by the end of the process, you will have not only Democrats agreeing with you but a good fraction of the people who voted for him.”
.. he successfully urged Republicans on the Judiciary Committee to hold hearings on just what would constitute an impeachable offense, an exercise that convinced him that “the real test for an impeachable offense is, is this a threat to the constitutional order, to the protection of liberty, to the checks and balances system that the Constitution sets up?”
.. “The impeachment clause was put into the Constitution as a political tool with which to defend the republic, to defend the constitutional order, to defend against a would-be tyrant.”
.. he expected that Mueller, like previous special counsels before him in the Clinton and Nixon cases, would deliver a report to Congress laying out his evidence related to the President, and he promised it would have to be sufficiently serious and specific.
.. I would certainly have to be convinced if I were going to help lead it—that the President has committed impeachable offenses, and that those impeachable offenses are so serious that the constitutional order is threatened if he is not impeached and removed from office,” Nadler said. “That’s the real test.”