Now that the House Intelligence Committee led by Rep. Adam Schiff (D-Calif.) has completed “phase 1” of the impeachment inquiry, Schiff has handed the baton to Rep. Jerry Nadler (D-N.Y.) and the House Judiciary Committee, which will handle “phase 2.”
In phase 1, House Democrats attempted to establish a factual basis under which to impeach President Donald Trump. In phase 2, Nadler will attempt to explain the legal basis for impeachment and to convince the Senate and the American public to support the House’s impeachment push.
Given that Schiff’s efforts failed from a substantive perspective, Nadler’s efforts also should be rejected from a legal perspective.
“Under House Resolution 660, the House of Representatives has approved certain privileges for you in the House Judiciary Committee while the Committee considers whether to recommend articles of impeachment to the full House. For your reference, a copy of the resolution and related procedures are attached to this letter. These procedures, and the privileges afforded to you therein, are consistent with those used by the Committee in the Nixon and Clinton impeachments. ...
As Nadler makes clear in his letter, the purpose of the inquiry is to analyze the history and the law behind impeachment and to determine whether the president’s actions warrant impeachment.
While Nadler invited the president and his attorney to participate in the hearing, this invitation came too late. In essence, Nadler is trying to level the playing field after House Democrats engaged in a unilateral and partisan investigation of the president and rejected virtually all requests from House Republicans to question specific witnesses during the public phase of the initial impeachment inquiry.
Impeachment
According to Article 2, Section 4 of the Constitution, a president can be impeached if he or she commits treason, bribery, or other high crimes and misdemeanors.The act of impeachment was initially proposed to provide a legal and nonviolent method to remove a rogue leader. The exact nature of what constituted an impeachable offense went through changes.
“A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases, it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases, there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”According to Hamilton, impeachment was reserved for those offenses “which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”
Interestingly, Hamilton noted that such offenses would seldom fail to agitate the entire community. In other words, an offense that met this threshold would typically upset the community at large, as opposed to one particular political party or group.
“During the Nixon impeachment process, the House Judiciary Committee staff argued that ‘high crimes and misdemeanors’ historically meant offenses like ’misapplication of funds, abuse of official power, neglect of duty, encroachment on Parliament’s prerogatives, corruption, and betrayal of trust.’ They added that in Britain, impeachable offenses ‘had no roots in the ordinary criminal law.’
Trump’s “case” isn’t analogous to Nixon’s, nor should Democrats rely on Nixon’s case as precedent.
Unlike Nixon’s case, there has been no evidence to date that Trump has obstructed justice or unlawfully failed to comply with properly issued subpoenas relative to the Ukraine investigation.
According to Ford, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”
While Ford is correct in a general sense, his statement is somewhat oversimplified. Impeachable conduct isn’t whatever the House says it is; rather, impeachable offenses are specifically enumerated in the Constitution (treason, bribery, or other high crimes and misdemeanors). While House Democrats can decide how to interpret these offenses, they would be wise to consider past precedent. If they do so, they will realize that impeachment isn’t warranted here.
The upcoming hearing in front of the House Judiciary Committee is one last effort (by House Democrats) to generate support for impeachment. Phase 1, led by Schiff, failed to do so.
Without any compelling evidence proving an impeachable offense, the upcoming inquiry really serves three purposes from a Democratic perspective.
First, it gives Democrats another opportunity to garner support for impeachment, which is unlikely. Second, it gives House Democrats more time to decide whether or not to present articles of impeachment, which they shouldn’t do. Finally, and to the extent possible, it allows House Speaker Nancy Pelosi (D-Calif.) and Schiff to “save face” if Democrats decide not to pursue impeachment. Unfortunately for them, this, too, seems unlikely.