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House Democrats' Thirst for Impeachment Raises More Process Concerns

09/25/2019

On Tuesday, Speaker Nancy Pelosi (D-Calif.) said that the House of Representatives would launch a formal inquiry into whether grounds exist to impeach President Donald Trump. The short speech lacked substance or any indication as to what the next steps would be in the process or whether anything will change at all.

Earlier on Tuesday, the Washington Post reported that Speaker Pelosi considered the creation of a select committee to handle the impeachment inquiry. Obviously, this would have been a vote of no-confidence from Democratic leadership in Judiciary Committee Chairman Jerrold Nadler (D-N.Y.), who could have seen an already poorly managed investigation taken out of his hands.

In modern history, the House Judiciary Committee has conducted an impeachment inquiry after instructed to do so by the House and would, if necessary report articles of impeachment to the House. Of course, documents and testimony obtained by other committees that are relevant to the inquiry would be given to Judiciary.

One would have to go back to February 1868, when the Select Committee on Reconstruction, reported a resolution to impeach President Andrew Johnson, to find an impeachment resolution that did not come from the Judiciary Committee. The actual articles of impeachment against Johnson were presented about a week after he was impeached.

A select committee would have to be created and have its budget approved by the House. Presumably, the House would also direct this select committee to determine whether impeachable offenses exist and, if necessary, refer articles of impeachment to the House for possible consideration. However, it does not appear that Speaker Pelosi will go in this direction.

In her remarks on Tuesday, Speaker Pelosi indicated that nothing will really change. “[T]oday, I am announcing the House of Representatives is moving forward with an official impeachment inquiry,” said Speaker Pelosi. “I am directing our six Committees to proceed with their investigations under that umbrella of impeachment inquiry.”

Essentially, the six committees, including the Judiciary Committee and the Permanent Select Committee on Intelligence, will continue to investigate as they have been doing since the beginning of the 116th Congress, likely more vigorously. Any documents and witness testimony that is relevant to impeachment will presumably be transferred to the Judiciary Committee. Unless something changes, Speaker Pelosi does not appear ready to bring a resolution to the House floor that would authorize the Judiciary Committee -- or any other committee, for that matter -- to begin a formal impeachment inquiry.

Such authorization is not required under the rules of the House to initiate an impeachment inquiry, but Rule XI, Clause 2(e)(2) would have to be waived by the House to prohibit members who are not on the Judiciary Committee from reviewing documents, witness testimony, or other information that was obtained from a grand jury investigation. That has not happened, and there is no sign that such a resolution will come to the floor in the near future.

Additionally, the procedural rights to review and respond to evidence received by the committee and cross-examine witnesses that were granted to President Richard Nixon and President Bill Clinton have not been extended to President Trump. Instead, the rule change that the Judiciary Committee adopted for its impeachment investigation allows President Trump’s counsel to respond to information and witness testimony received in open session, which everyone has the ability to do.

To say that this nothing has necessarily changed, though, would be inaccurate. Speaker Pelosi’s support of an impeachment inquiry, even if that is not what is happening, is a rather big deal if she throws the weight of her office behind it. But Speaker Pelosi has also jumped the gun here by backing “a formal impeachment inquiry" based on what appears to be largely misleading reporting and the insatiable thirst for impeachment from her caucus.

Impeachment is a legitimate constitutional remedy to address a president's failure to enforce laws or criminal offenses committed while in office; it is not a tool to be used to overturn an election just because Democrats -- or another party in power -- do not like the result of an election. By pushing impeachment, Democrats not only risk further dividing the country but also delegitimizing impeachment as a constitutional tool by using it improperly.