California Congressman Adam Schiff is the chairman of the House Intelligence Committee. During Donald Trump’s term, he was the voice of small-r republican principle. That was evident in his performance as lead prosecutor in the former president’s first impeachment trial. He’s one of my favorite House Democrats. This morning he was full of shit.

He appeared on MSNBC’s “Morning Joe” to promote his new book. Laurence Tribe, the famed legal scholar, read Midnight in Washington in advance. (It’s about Russian interference, the Mueller investigation, and more.) “Nothing else out there captures as vividly and brilliantly how close we came to losing our way of life and the peril we still face, but why we need not despair and have every reason for hope,” he said.

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Schiff isn’t telling you everything. He isn’t telling you what happens after the committee votes to hold in contempt Steve Bannon or anyone defying a lawful subpoena. He isn’t telling you who the committee is referring to when it makes referrals for criminal prosecution.

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I’m not convinced. Schiff sits on the House select committee formed expressly to investigate the former president’s attempted coup d’etat. It has subpoenaed an array of Donald Trump’s confederates, including pardoned criminal and former advisor Steve Bannon. Bannon has already vowed to defy the order to testify. In that case, Schiff was asked on “Morning Joe,” what would the select committee do?

“Things are not the same for Steven Bannon,” Schiff said. “Now we have a Justice Department that is independent. Merrick Garland believes in the rule of law, no one is above the law. If witnesses do not show up, we will hold them in criminal contempt, we will vote them in contempt in the House, and we will refer them for prosecution. That will be a sign that our democracy is recovering — that the Justice Department is upholding the principle that no one is above the law.

Sounds tough, right? Super-duper tough! It’s not, though.

Schiff isn’t telling you everything. He isn’t telling you what happens after the committee votes to hold in contempt Bannon or anyone defying a lawful subpoena. He isn’t telling you who the committee is referring to when it makes referrals for criminal prosecution. What he’s really saying when he says tough things is that the committee is prepared to shirk its responsibility to uphold the rule of law and put it on someone else’s shoulders, who may or may not uphold the rule of law. What he’s saying without saying is his panel is prepared to punt.

Here’s what happens. After the committee makes a criminal referral, it then goes to the office of the US attorney of the District of Columbia. The US attorney office then determines whether it will go through the process of prosecuting Trump confederates criminally. Schiff is making it sound like this is going to happen on account of the Department of Justice being run by Democrats. It isn’t a done deal. If anything, the US attorney’s office has incentive to not get involved.

Why is Schiff laying down this bullshit? Fear. That’s the only answer. He, and I presume the other Democrats on the panel, want to make it look as if the prosecution of the former president’s confederates has nothing to do with partisanship and everything to do with principle. But that fear is going to run headlong into the attorney general’s fear of looking partisan, too. The Democrats are prepared to punt, but Merrick Garland really doesn’t want to catch the ball. This is not a sign of democracy recovering. It’s a sign of institutional rot deepening.

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Here’s the tip jar!

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Isn’t Schiff just honoring the separation of powers? The legislative branch makes law. The executive branch enforces it. If that were strictly the case, the Congress would not be the supreme authority, constitutionally speaking. In a democracy, it must be. That’s why the Congress has in the past used its “inherent powers,” which include arrest and detention, to force cooperation. Sam Ervin, chairman of the Senate Watergate Committee, famously threatened to jail Nixon administration officials. He told “Face the Nation”: “I’d recommend to the Senate they send the sergeant at arms of the Senate to arrest a White House aide or any other witness who refuses to appear.”

Adam Schiff and the other Democrats on the House select committee have the same “inherent powers.” They could use their authority to uphold the rule of law on their own for the sake of the people the House of Representatives speaks for. They do not need a bureaucrat’s permission. They should not seek it. Instead, they should charge the sergeant at arms, who is a law enforcement official, with the task of arresting and detaining Steve Bannon until he chooses to cooperate. (He’d be housed in some swank Washington hotel; it won’t be a jail.)   

If the Democrats appear to want to go along to get along, as the Rev. Al Sharpton said today on “Morning Joe,” that’s because they are. Adam Schiff is one of them, evidently. He appears to think partisanship will taint the administration of equal justice. He appears to think the prosecution of the former president’s confederates will increase distrust of democratic institutions. The answer, it seems, is punting.

He can’t be more wrong. He can talk all he wants about the rule of law being sacred, about the Department of Justice being independent, about Merrick Garland being a good man. That’s all true, but when good people fear doing what’s right, anything’s possible, including the rule of law becoming a sick joke applicable to some, not to others. 

Some pundits, and even Democrats, continue to insist the solution to extreme partisanship is bipartisanship. But as Sharpton asked this morning, how is that possible when one side is above the law? The answer is plain to see. It isn’t possible. The proper solution to extreme partisanship is what it’s always been: upholding the rule of law. If that ends up looking like extreme partisanship in the process, so be it.

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