November 12, 2019
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Sifting through the impeachment hyperbole

J. Scott Applewhite | AP
J. Scott Applewhite | AP
The Capitol is seen in Washington, early Friday, Nov. 8, 2019, as House Democrats continue to probe whether President Donald Trump violated his oath of office by coercing Ukraine to investigate political rival Joe Biden and his family.

President Donald Trump and other Republicans have framed the ongoing House impeachment inquiry as a “witch hunt” and a “sham,” while House Speaker Nancy Pelosi has called its rules “fairer than anything that have gone before in terms of an impeachment proceeding.” Neither argument is accurate, though the Republicans are generally being much more hyperbolic.

The gap in perception and rhetoric is enough to wonder if party leaders are even assessing the same process and underlying facts. There was always sure to be political posturing and strong disagreement in this impeachment discussion, but the spin on display regarding the procedures involved has been truly dizzying.

Not unironically, Republicans are now criticizing Democrats for doing (at least partially) what many on the right have for weeks been pushing for: holding a vote that forces members to take a side on formalizing the impeachment process, making it more transparent and providing more power to the Republican minority.

The resolution passed last Thursday did all those things, but make no mistake, Democrats are checking some of those boxes in ways convenient to them and not always in exact accordance with past impeachment proceedings.

Many Republicans had been highly critical of the closed-door hearings that Democartic committee leaders have been holding for several weeks, which have been limited to the Republicans and Democrats who serve on those committees. A group of Republican House members, frustrated with the process, attempted to storm into one of those closed sessions, violating security rules supposedly in the name of order and the rule of law. It was not a good look.

Democrats have compared the hearing process to grand jury proceedings and argued that the closed-door hearings were necessary in order to prevent witnesses from potentially coordinating testimony. But many testimonies have been leaked, likely for political reasons, which undercuts that argument and is all the more reason to move to fully open hearings that allow everyone to process the same information at the same time.

Republican disdain for closed-door hearings, we should note, appears to have materialized recently. They were fine with such proceedings during the House Benghazi investigation several years ago, when they were in power and calling the shots. And while impeachment and that investigation are not the same, this shift is telling.

Trump and his supporters have also alleged that the House proceedings do not afford him due process or give House Republicans meaningful and equal subpoena power, while Democratic leadership insists the process is fair.

First, the Constitution says little about impeachment procedure in the House, except that the body has “sole power of impeachment.” While it would be better for Democrats to give Trump the ability to be represented by a lawyer at hearings in each of the committees involved in impeachment, there’s nothing requiring them to do so. Providing that opportunity only in the Judiciary Committee is a mistake, but it also isn’t robbing Trump of due process as he claims.

The issue of co-equal subpoena power is similarly nuanced. Democrats have given the minority the ability to subpoena witnesses, but only if the Democratic chairman of a committee signs off or the full committee votes to overrule the chair’s denial. This does not empower the minority as much as the Clinton impeachment process, when the House Judiciary Chairman and Ranking Member both could subpoena witnesses with the agreement of the other, and each was able to object and force a full committee.

As mentioned in a 1998 report from the Judiciary Committee and pointed out in an analysis earlier this year on the site Lawfare, the joint subpoena approach used in the Clinton impeachment process rightly sought to balance “ maximum flexibility and bipartisanship.” It was another mistake for Democrats not to employ that approach in the current process.

The Democrats deserve no praise for the way this process has evolved. We’re still wondering why the word impeachment needed to be attached to the investigation before the formal vote, and why, if House Democrats were going to pursue impeachment at all, they didn’t start with Trump’s 10 instances of potential obstruction of justice identified in the report by special counsel Robert Mueller.

Impeachment is a political process with very little guidance or precedent. So there was always going to be something for the opposition to criticize. Democrats don’t get a free pass for the procedural mistakes they’ve made so far, but Republicans also should not be rewarded for their hyperbole.

As the House moves to open hearings next week, all of Congress and the American people must stay focused on the facts of the investigation, wherever they lead. Rabidly partisan arguments should not distract from the real questions: whether or not President Trump used his office and the weight of U.S. foreign policy for his own political gain, and whether or not such an action rises to the level of impeachment.



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