Rudy Giuliani: “You should be happy for your country that I uncovered this”

Donald Trump himself has said, “Nancy Pelosi, as far as I’m concerned, unfortunately, she’s no longer the Speaker of the House.” He has accused Schiff of treason because Schiff criticized him; on Tuesday night, he called the impeachment inquiry “a COUP.”

This rhetoric harks back to the Alien and Sedition Acts crisis of 1798, when the ruling Federalist Party outlawed criticism of the president or Congress, and jailed opposition figures (including members of the House itself) for the “crime” of opposing the administration. The idea was that any opposition to the government is a betrayal of the state—that there is no such thing as a “loyal opposition.”

As I wrote on Tuesday, the beginning of a formal impeachment inquiry should strengthen Congress’s hand as it seeks court enforcement of its demands for information. But should Congress even pursue such requests? Laurence Tribe, a professor at Harvard Law School, (whose recent book, To End a Presidency, co-written with Joshua Matz, explores many political and legal aspects of impeachment) told me in an email:

The expectation that the evidence thereby made available will be explosive makes the impeachment process more difficult in circumstances like this, where the publicly known facts already justify a conclusion that the president committed high crimes and misdemeanors. That creates something of a paradox. The way in which a formal impeachment inquiry makes potentially incriminating evidence much more readily available tends to raise expectations and indirectly raises the bar for what it takes to impeach a president who abuses his powers for personal gain.

Read more from 1867: The causes for which a president can be impeached

In other words, what the public already knows is sufficient grounds for impeachment, and trying for more might backfire. If doing so creates an expectation—similar to Mueller fever before the special counsel’s report was issued in April—compliance could produce an anticlimactic result that would lead to impeachment fatigue and claims by Trump that he has been “totally exonerated.” In addition, many of the requests pending in court now have nothing to do with Ukraine—and while they are impeachment-related, that blurring of the focus may be a problem.

The Ukraine narrative is simple and clean: The executive branch’s own account of the phone call shows him attempting to enlist foreign interference in an election. That is a high crime and misdemeanor. And perhaps less is more: To adopt other articles of impeachment might simply confuse the issue. Congress already has enough to go forward. In this analysis, the remedy for administration stonewalling is a new article of impeachment—like the one adopted by the House Judiciary Committee in 1974 after Richard Nixon rejected its request for the key White House tapes.