Legal Law

Why Democrats Need to Re-Think Hunter’s Contempt – JONATHAN TURLEY

Below is my column in The Messenger on the vote to hold Hunter Biden in contempt and the need for Democrats to seriously reconsider the costs of voting against the resolution. On Wednesday, the House Oversight Committee voted to hold Hunter in contempt with every Democrat opposing the motion. Once again, the party is short selling an institutional asset that they are likely to need in the near future if they retake the House.

This week, the Republican-controlled House will begin contempt proceedings against Hunter Biden with a vote expected as early as this week. That alone will be an historic moment for Congress to declare that the son of a sitting president may have committed a federal felony. However, the costs may not be borne by Hunter alone. If the Democratic members, as expected, unanimously oppose the contempt sanction, the party could fundamentally undermine its position in future investigations.

The Democratic leadership has made a series of similar decisions in the last decade that have cost the party dearly by opting for immediate political benefits over long-term interests. They are acting as the political version of short sellers who have given away institutional positions, only to find later that the costs were prohibitive.

That was the case when Democrats repeatedly undermined the Senate filibuster. Many of us warned Democratic senators that they would rue the day that they killed the rule. Nevertheless, in 2013, Democrats pushed through a rule change allowing most presidential nominees (but not Supreme Court nominees) to be confirmed by a simple majority vote. Then in 2017, when Republicans controlled the Senate, they extended the simple-majority rule change to justices, too — and when Democrats wanted the filibuster to block the High Court nominations of Neil Gorsuch, Brett Kavanaugh or Amy Coney Barrett during the Trump administration, it was gone.

Likewise, when Democrats first sought to impeach President Donald Trump, they held only one hearing in the House Judiciary Committee and discarded the development of the type of evidentiary record used in past impeachments. I warned that the record guaranteed an easy acquittal in the Senate and undermined the process of impeachment. They ignored such warnings and quickly impeached, then lost the case in the Senate. In a second impeachment, they went even further, using what I called a “snap impeachment” with no hearing of any kind.

Now, after using the first snap impeachment in history, Democrats are implausibly arguing that House Republicans have failed to support impeachment efforts against President Joe Biden and objected to the lack of hearings with particular witnesses.

They also have encouraged President Biden to act unilaterally in a host of areas, including his attempt to give away a half-trillion dollars in student loan debts.

When House Speaker Kevin McCarthy (R-Calif.) was targeted for removal by a handful of GOP members, many people urged Democrats not to support such a dysfunctional move when the nation had serious problems to address. Yet Democrats voted with the rebellious Republicans to oust McCarthy, and the whole effort caused weeks of disruption. It shattered a certain detente in such motions to vacate— and Republicans are very likely to return the favor during any future revolt against a Democratic speaker.

The political culture of short selling is nowhere more evident than in the “ballot-cleansing” efforts of Democratic officials and activists to remove Trump’s name from 2024 ballots as well as to remove primary opponents against Biden. The immediate satisfaction of blocking potential voters ignores the long-term costs of this distinctly anti-democratic measure. When presented with those implications, anti-Trump pundits often express anger. MSNBC host Joe Scarborough, for example, called such concerns “laughable” and told critics to “spare me the anti-democratic lectures.”

Now, Democrats are about to do another short sell. They are expected to unanimously oppose holding Hunter Biden in contempt of Congress despite his flagrant violation of a subpoena to appear for a standard closed deposition. It is the very same demand made by Democrats in prior congresses, before witnesses subsequently appeared for public hearings on controversies like the Jan. 6, 2021, Capitol riot.

Oversight Committee Ranking Member Jamie Raskin (D-Md.) declared this week that there “is no precedent for the U.S. House of Representatives holding a private citizen in contempt of Congress who has offered to testify in public, under oath, and on a day of the committee’s choosing.” Raskin said that Oversight Committee Chairman James Comer (R-Ky.) “repeatedly urged Hunter Biden to appear at a committee hearing, and Hunter Biden agreed” — without mentioning, of course, that Hunter set his own conditions on any appearance.

So House Democrats — all of them — are expected to oppose holding a witness in contempt for openly defying a subpoena and instead holding a defiant press conference outside the Capitol. In doing so, Raskin and his colleagues will establish that in the future, when Democrats are in control, witnesses will be able to unilaterally refuse to appear for depositions with committee staff and to dictate the conditions under which they will appear for testimony.

No impartial judge would support such an absurd claim — but it will become the position of the Democratic Party going forward.

For real short sellers, the idea is to leverage money to buy stock or shares while betting that the stock or shares will decline in value. By selling them and then buying the cheaper securities, the short seller can return the cheaper shares to the lender while pocketing the difference. Of course, the problem is when the value of the things you are selling goes up.

That is precisely what has happened to past Democratic short sells, from Senate filibusters to House impeachments. The institutional rules they sold out proved to be very valuable within a couple years, when Republicans took control — leaving them with little beyond hypocrisy in crying foul.

What is most impressive, however, is the lack of criticism by party members or the media. These were costly mistakes, but the “lenders” seem entirely comfortable with the losses; they are enabling these bad trades for a party of short sellers.

With the Biden contempt vote, Democrats once again will be asked to think beyond the political moment or the next election. At some point, the costs of shielding the Bidens from an alleged corruption scandal will become prohibitively high. And, eventually, the Democratic Party will find itself one short-sell short of political and ethical bankruptcy.

Jonathan Turley, an attorney, constitutional law scholar and legal analyst, is the Shapiro Chair for Public Interest Law at The George Washington University Law School.

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