The resolution passed by the House of Representatives on Thursday sets out the process for the House to decide whether or not to bring articles of impeachment against President Donald Trump.
The process will have three phases prior to any impeachment vote by the full House:
(1) The non-public investigations currently taking place in six House committees (Intelligence, Financial Services, Foreign Affairs, Judiciary, Oversight, and Ways and Means) will continue for an unspecified period of time;
(2) In the next phase of the process, the Intelligence Committee will conduct “open and transparent investigative proceedings,” culminating in the issuance of a report to the Judiciary Committee;
(3) The Judiciary Committee will then conduct proceedings and report to the full House “such resolutions, articles of impeachment, or other recommendations as it deems appropriate.”
Each phase of the process is freighted with political and legal significance. Let’s look at them one at a time.
Phase 1: Non-public investigations in House committees continue
This is the piece of the House impeachment inquiry that is driving congressional Republicans crazy, or so they claim in public.
Their heightened level of outrage isn’t warranted by the facts. Gathering evidence in the initial phase of an investigation is rarely done in public. This is true not only in law enforcement, where grand juries gather evidence in strict secrecy, but also in congressional investigations.
Just ask Trey Gowdy, the Republican congressman who led the Benghazi investigation against Hillary Clinton. Gowdy, who branded public hearings as a “circus freak show,” recently confirmed his belief in private hearings on Face The Nation: “I think if you’re going to have private investigations with unlimited time for questioning and cross examining witnesses that’s a good thing,” he said. “I’m a rule follower, I threw a Republican out of a hearing because he was not a member of the committee.”
Is it any wonder that shortly after Gowdy’s name was floated as a possible new member of Trump’s legal team, Gowdy said that he had “no idea” if he would join the team and that the Gowdy trial balloon then floated off into the ether.
On this, Gowdy was right: Non-public does not mean “secret” or “illegal.” Congressional committees hold non-public hearings every day, and there is no statute, court decision, or constitutional prohibition from doing so. Add to that the fact that the evidence has been obtained in hearings that afforded both parties full and equal participation, and the current Republican process argument disappears.
Phase 2: Intelligence Committee conducts open hearings
This is what congressional Republicans have been demanding. And dammit, they ain’t gonna take yes for an answer.
The Republican argument is that it’s too late to conduct open hearings because so much evidence has already been gathered by the Intelligence Committee in non-public proceedings.
The Republican argument borrows heavily from the so-called “fruit of the poisonous tree” legal doctrine. In law, evidence obtained illegally, for instance without a necessary search warrant, can be excluded in a criminal trial. And it’s not only the illegally obtained evidence that can be excluded. So is any further evidence gained from the tainted evidence—the “fruit” of the poisonous tree.
The primary problem (among others) with applying this argument to the ongoing impeachment inquiry is that none of the Intelligence Committee’s evidence was illegally obtained. (See Phase 1, above.)
Still, you should expect congressional Republicans to continue to claim that the entire impeachment process is already fatally tainted.
Because that’s all they have.
They can’t seriously criticize the public phase of the process as unfair, because it’s what they had been demanding all along. And it will be difficult to claim that this phase fails to give the president due process because each side will have equal time to question witnesses. Republicans may request witness testimony and the issuance subpoenas. If the chair of the committee denies any such requests, the GOP ranking member can appeal the decision to the full committee.
And while Republicans can claim that they won’t have an unfettered, unilateral right to call witnesses or issue subpoenas on their own—without the concurrence of the committee’s Democratic chair—that’s precisely the position the Democrats were in during the Clinton impeachment proceedings. According to Lawfare, “during the Clinton impeachment, subpoenas could be issued by the chair and ranking member of the relevant committee acting together—unless either the ranking member or the chair objected, in which case he could refer the matter to a full committee vote.”
So, if Intelligence Committee Chair Adam Schiff abuses his authority to deny Republican requests for witnesses or subpoenas, and if the Committee acts unfairly, Republicans may have something to complain about. But none of that has happened.
Right now, the Republican complaints about the process look more like dissatisfaction that they no longer control the House. There’s nothing unusual about party-line votes in congressional committees. That’s why we have elections. That’s why it matters which party controls the House.
And that’s the advantage that will shift to the GOP if and when articles of impeachment are brought to the Senate, which they control.
Still, expect the GOP members of the Intelligence Committee to try to manufacture a talking point by requesting witnesses that they know Schiff will reject. Maybe they’ll request Ivanka. Or Steve Bannon. Or Sean Hannity. Or Corey Lewandowski. There’s no shortage of potential “witnesses” who have no relevant evidence, and nothing to add to the proceeding other than muddying the waters.
It will be interesting to see how Schiff responds to such requests. If he thinks he can maintain the dignity of the process without getting thrown completely off track, he might just give the Republicans all the rope they want and hope that they hang themselves.
Phase 3: Judiciary Committee Hearings
There’s not a lot to see here, and little for Republicans to complain about.
The resolution calls for “the participation of the President and his counsel.” It gives the Committee’s Republicans the same rights to request witnesses and subpoenas that they will have in the public Intelligence Committee proceedings, including the same appeal rights.
Republicans can—and probably will—complain that the due process provisions of the resolution are “not enough.” But they can’t point to any statute, court decision, House rule, or constitutional language to support such an argument.
Instead, they will have to rely on a political argument that the process somehow isn’t “fair,” which is, of course, in the eye of the beholder.
Of course, impeachment is a political, not a legal, process. So there’s nothing wrong with making a political argument. But it’s important to keep in mind that many arguments that sounds legalistic are, in fact, merely political.
The strength of the Republicans’ current and future political arguments remains to be seen. But Adam Schiff, Jerry Nadler, and congressional Democrats have it within their power to mitigate most of them by bending over backwards to assure that the process is fair in both substance and appearance.
Let’s hope they do.