In the closing days of this election, we’ve seen a consensus building within the Republican Party that, should Hillary Clinton win the presidency but not the Senate, she should be denied Supreme Court appointments—and that perhaps all of her nominations to the federal bench should be rejected.
We’ve seen FBI Director James Comey—seeking perhaps to head off Republican criticism and more-damaging leaks by partisan agents hoping to influence the election—intrude outrageously into the presidential campaign with innuendo about Clinton’s emails that, intentionally or otherwise, created an unwarranted atmosphere of criminality around the Democratic Party’s nominee.
And now, we’re seeing leaks to news outlets from FBI officials that reflect generously on Donald Trump and negatively on Clinton. The New York Times’ FBI sources, for instance, are at pains to insulate Trump from politically damaging evidence that he and Russian intelligence and propaganda outlets are operating symbiotically. And this Wall Street Journal article details an intense appetite, in FBI field offices across the country, for pursuing every possible investigative avenue related to Clinton, no matter how attenuated.
Republicans are citing this laughably tendentious outpouring of FBI leaks and disclosures as pretext for years of investigations of Clinton’s as-yet unsecured and unconstituted administration; and even letting slip that they might move to impeach her for imagined crimes.
Suspected criminal wrongdoing on Clinton’s part has been the one constant, dependable aspect of GOP behavior. It started with the terrorist attack on our diplomatic outpost in Libya four years ago, the subsequent discovery of her non–State Department email address, the further revelation that she ran all non-classified professional email communication across an unsecured, personal email server, and continued with Comey’s Friday comments that the FBI was looking into newly discovered Clinton emails but that the bureau “cannot yet assess whether or not this material may be significant.”
Trump, meanwhile, has been at the center of much less of this kind of public, official scrutiny. Congress has not taken any interest in his apparent foibles. If he is under FBI investigation or IRS audit, agents from those bureaucracies aren’t leaking, and attendantly he hasn’t been subjected over the course of this campaign to immediate suspicion of guilt when selectively disclosed information reflects poorly on him.
There is a through line connecting all of these inconsistent election-season dynamics. It extends all the way back to 2010, when complacent Democrats didn’t show up to vote, handing control of the House to the Republican Party, and makes a stopover in 2014, when many of these same complacent Democrats didn’t show up again, and ceded the Senate to Republicans as well.
The dizzying cascade of late-season outrages this cycle can be interpreted as a consequence of Republican dominance of the legislature, and the expectation that Republicans will maintain that dominance in 2017 and beyond. The only way for Democratic voters to tidy this up, and put safeguards in place to prevent similar outrages going forward, is to vote in overwhelming numbers and retake Congress altogether.
The GOP’s power over the Supreme Court speaks for itself. For the better part of a year, Senate Republicans have shamelessly refused to even consider confirming Merrick Garland—President Barack Obama’s nominee to replace Justice Antonin Scalia—on the basis of a novel and opportunistic theory that presidents should be denied Supreme Court appointments in the final years of their terms. They’ve been holding the seat open, in other words, hoping that Donald Trump will fill it.
In the past several days, though, a growing number of Republican senators has extended the theory to encompass any Democratic president in any year of his or her presidency. They are promising, in other words, to do whatever it takes to prevent Clinton from filling the existing vacancy if she beats Trump as expected. “If Hillary Clinton becomes president, I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court,” North Carolina Senator Richard Burr told volunteers at a private meeting where he also joked about gun owners killing Clinton.
If Democrats reclaim the Senate and Republicans attempt to filibuster Clinton’s first Supreme Court nominee, the remedy will be simple: eliminate the filibuster for Supreme Court nominees. But if Democrats fail to reclaim the Senate, there will be nothing they can do to stop Republicans from provoking a genuine legitimation crisis.
The other oddities cited at the beginning of this article are outgrowths of skewed congressional politics in different ways.
For instance: FBI agents can leak damaging information about Clinton with impunity in part because a Republican Congress is never going to investigate or push back on partisan law-enforcement interventions on their behalf, even if they’re wildly inappropriate. Controlling even one house of Congress would’ve allowed Democrats to place a check on this kind of activity, but they ceded the entire body two years ago.
As a result, Comey understood that there’d be hell to pay on Capitol Hill if he withheld the letter he sent congressional investigators on Friday for any length of time, because Republicans control the oversight apparatus and the subpoena power that comes with it. “It doesn’t surprise me, though, in a way that he did this,” Elijah Cummings, the top Democrat on the House oversight committee told CNN Monday, “because I don’t think the American people have a clue as to how hard the Republicans, particularly on my committee, have been on the FBI.”
Congressional Democrats have requested parallel investigations of Trump and have argued that if the FBI is going to disclose the findings of its Clinton inquiries, then it should do the same vis-a-vis its Trump-related probes, but to no effect. They have the power to write letters and appeal to the media, but they can’t convene their own hearings nor demand the FBI director testify before their committees. If Democrats controlled even one chamber, they could have investigated Russian interference in the election, and compelled Comey to testify, but those hearings never happened because Republicans didn’t want them to.
Iniquities like this will continue if Clinton wins the presidency and the House (and possibly the Senate) remain in Republican hands.
Just as Senate Republicans will use their advice-and-consent powers to reject Clinton’s nominees, House Republicans will use their oversight powers to make the Clinton presidency an endless slog of question-begging investigations based on a fixed assumption of guilt. It was altogether fitting when the House judiciary committee chairman, Bob Goodlatte, referred to Clinton’s “potential impeachment” before correcting himself to note that he was merely advocating for perjury charges to be brought against her, with impeachment the implied remedy.
This is all preventable in theory. But it would require a dedication and awareness on the part of Democratic voters to punish Republicans for their behavior, and, with polls forecasting a narrow Senate Democratic majority at best and the House floating out of reach, that doesn’t appear to be in the offing.