What are the issues at the heart of the impeachment farce, and, as between the President and the progressives in the House, who has the superior legal argument?
Everything wrong with progressives today is playing out in the Star Chamber that Democrats are running as an “impeachment inquiry” in the House of Representatives. The Democrats’ have dispensed with due process, precedent, and Constitutional limitation to create a juggernaut designed not to reach a just conclusion, but to ensure a vote impeaching the sitting President and bringing this nation half way to overturning the 2016 election. Today’s progressives feel themselves above the law and believe the rest of us, including very much President Donald Trump, are unworthy of its protection. Nowhere is that more apparent at the moment then in this impeachment farce.
The issues are two-fold. First, may the House exercise the power to conduct an impeachment inquiry without formal authorization voted upon by the full House? Second, is Nancy Pelosi constitutionally able to manipulate the House rules of impeachment to deny any due process or procedural protection to President Trump and to the minority members of the House? In other words, is it true that Impeachment is nothing more than a particularly one-sided Grand Jury investigation?
A bit of background first. A formal decision to investigate for impeachment is not a meaningless decision or a mere label. At a minimum, once the House formally decides upon impeachment, the House accrues powers beyond that which it normally possesses. Thus, it is a substantive legal question whether a House impeachment inquiry requires a House vote or whether the Speaker of the House can unilaterally announce the beginning of an impeachment inquiry. I know of no precedent in American or British history supporting Nancy Pelosi’s contention that she can accrue these formal powers of impeachment by simple fiat. More on that below.
The House of Representatives normally only has “legislative” authority. Thus House members are limited to investigating and holding hearings on matters that relate directly to producing legislation. As with so much in our Constitution, this is not a thing of bright line clarity. But as is almost always the case, the fact that there’s no bright line does not mean that there is no line. Perhaps the clearest example of line drawing outside of the impeachment context comes from recent House efforts to use a subpoena to force the IRS to release Trump’s tax returns. When Trump refused to honor the subpoena, his attorneys pointed out that the House, while its members may have a political interest in reviewing Trump’s tax returns, have no legitimate legislative interest.
The House of Representatives accrues an additional power (i.e., “judicial power”) only when conducting an impeachment action. That gives the House the power to overcome many claims of executive privilege for materials; to subpoena materials and testimony on topics beyond the House’s inherent legislative interests; and to access materials to which it otherwise has no legal right, such as grand jury testimony. When the House authorizes an impeachment, the question is no longer whether the House has a legitimate legislative purpose for its subpoenas, but whether the matter is relevant to its exercise of a judicial power on the specific matter before it.
Nancy Pelosi, the House Speaker, claims the unilateral right to assume this judicial power by fiat. Can Nancy Pelosi and House Democrats constitutionally get away with doing so?
The legal argument supporting Nancy Pelosi’s Star Chamber proceeding is set forth in that cutting edge repository of progressive legal analysis, Vox, in an article entitled “The White House argues the impeachment inquiry is “constitutionally invalid.” They’re wrong.” WRONG! WRONG! WRONG! [Picture a child stamping its feet.] Give me a break.
Here is the nub of the Vox argument, which contends that the House is free of any constraints on its ability to initiate and conduct an “impeachment” inquiry in whatever way it pleases, without deference to the Constitution’s language, to historic precedence, or to Due Process rights:
The Constitution makes it clear the House has the “sole” discretion to impeach and the Senate has the “sole” ability to hold a trial.
In other words, impeachment is purely a function of the legislative branch; not the executive, and not the judicial. A 1993 US Supreme Court case around the impeachment of federal Judge Walter Nixon upheld this finding, saying the courts would not weigh in on Congress’s impeachment procedures because it could violate the separation of powers.
“The important thing is constitutionally, the president is making claims not supported by history, or fact, or previous judicial decisions,” Linda Fowler, a congressional and legal expert at Dartmouth College, told Vox. “This [letter] actually says Congress has no prerogative whatsoever with respect to the presidency.”
If your knee jerk reaction is not to believe anything that appears in Vox, you will be right far more often than you are wrong. Let’s pull this apart.
The Constitution, Article I, Sec. II, Clause 5, states that “The House of Representatives . . . shall have the sole Power of Impeachment.” Note that the language on its face establishes unambiguously that the power belongs to the House of Representatives collectively, not to the Speaker of the House and not to a House Committee Chairman. This makes sense because, to the extent impeachment overturns the People’s will, it’s important for the next election cycle that the People’s representatives go on record with their stand on the issue.
True, the Constitution does not set forth the precise procedure the House must follow for impeachment. That said — and I know you will find this surprising — contrary to Vox’s assertions, history does not support initiating a presidential impeachment using anything other than a resolution voted upon by the full House.
In our nation’s history, only three sitting presidents have been subject to impeachment proceedings. The House initiated Andrew Johnson’s impeachment after voting on a Resolution to Impeach, and only after that vote was counted did the House order the Judiciary Committee to meet and draw up articles of impeachment which the House then voted to approve and send to the Senate. Over a century later, the process to impeach Richard Nixon began when the entire House voted on a resolution to send the matter for investigation to the Judiciary Committee. And Bill Clinton’s impeachment likewise began when the full House voted on a resolution to begin the impeachment process. While Vox claims that history does not support the position that only the full House can vote to begin the impeachment process, the reality of Presidential impeachments is exactly the opposite.
Because federal judges are more frequently subject to impeachment, when trying to understand the impeachment process for a sitting president (when safeguards should be at their highest), it’s helpful to look at judicial impeachment proceedings. The following is one of several procedural examples found in the Congressional Research Service Reports for 2011, and it focuses on a situation in which a judge is being impeached upon a third party complaint:
Rarely, a third party will attempt to jumpstart an impeachment investigation against a judge by sending evidence, petitions, memorials, or other communications to the chair of the House Judiciary Committee directly. In the past 100 years, however, this has only happened on five occasions. Only one of these attempts successfully initiated an impeachment investigation against a judge. In this lone successful attempt, the U.S. Attorney General transmitted a report to the House Judiciary Committee in August 1913 to determine whether the House should make an impeachment investigation into the conduct of Judge Emory Speer (Southern District of Georgia). Ten days after the receipt of the Attorney General’s report, Representative Henry Clayton of the House Judiciary Committee brought to the House floor a resolution authorizing the Judiciary Committee to investigate Judge Speer, as well as providing for the creation of a special subcommittee to assist in that investigation, to which the House agreed. [Emphasis added]
And one can go back much further in time than the above example. Indeed, the Founders adopted the impeachment process from Britain’s historical practice, which dates back to the 14th century. For instance, in the 19th century series Precedents of Proceedings in the House of Commons, Vol. IV (Relating to Conference, and Impeachment), the author traces all of the impeachment proceedings in the House of Commons over a period of centuries, none of which, to the extent it can be ascertained, support initiating proceedings by anything other than a full vote of the body.
Next is Vox’s contention that there is a “1993 case” holding that procedural questions are non-justiciable, or as Vox puts it, “courts would not weigh in on Congress’s impeachment procedures because it could violate the separation of powers.” The case is Walter Nixon v. U.S. When the case reached the Supreme Court, Walter Nixon was a federal court judge sitting in jail after having been found guilty of several offenses. The House had formally impeached Judge Nixon, something he did not contest, nor did the Supreme Court consider it. The question before the Supreme Court was whether the Senate, in its role as the trier of an impeachment, had adopted Constitutionally sufficient procedures by which to try Nixon. As Justice Rehnquist recounted in his opinion:
The Senate committee held four days of hearings, during which 10 witnesses, including Nixon, testified. S.Rep. No. 101-164, p. 4 (1989). Pursuant to Rule XI, the committee presented the full Senate with a complete transcript of the proceeding and a report stating the uncontested facts and summarizing the evidence on the contested facts. See id., at 3-4. Nixon and the House impeachment managers submitted extensive final briefs to the full Senate and delivered arguments from the Senate floor during the three hours set aside for oral argument in front of that body. Nixon himself gave a personal appeal, and several Senators posed questions directly to both parties. 135 Cong.Rec. S14493-14517 (Nov. 1, 1989). The Senate voted by more than the constitutionally required two-thirds majority to convict Nixon on the first two articles. Id., at S14635 (Nov. 3, 1989). The presiding officer then entered judgment removing Nixon from his office as United States District Judge.
Nixon thereafter commenced the present suit, arguing that Senate Rule XI violates the constitutional grant of authority to the Senate to “try” all impeachments because it prohibits the whole Senate from taking part in the evidentiary hearings. See Art. I, § 3, cl. 6. Nixon sought a declaratory judgment that his impeachment conviction was void and that his judicial salary and privileges should be reinstated.
In other words, Nixon contended that, once the formally voted-upon impeachment arrived in the Senate from the House, the Senate rules, which tried him before a committee rather than the full Senate, failed to meet constitutional requirements. In announcing his majority opinion, Rehnquist held that, once a legislative branch is re-constituted as a court for impeachment purposes, it has the right to determine procedural matters that the Constitution (i.e., the text) does not address:
In the case before us, there is no separate provision of the Constitution which could be defeated by allowing the Senate final authority to determine the meaning of the word “try” in the Impeachment Trial Clause. We agree with Nixon that courts possess power to review either legislative or executive action that transgresses identifiable textual limits. As we have made clear, “whether the action of either the Legislative or Executive Branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.” Baker v. Carr, supra, 369 U.S., at 211, 82 S.Ct., at 706; accord, Powell, supra, 395 U.S., at 521, 89 S.Ct., at 1963-1964. But we conclude, after exercising that delicate responsibility, that the word “try” in the Impeachment Clause does not provide an identifiable textual limit on the authority which is committed to the Senate. [Emphasis added]
Fortunately, the Constitution, at Art. I, Sec. 2, Cl. 5, does have text explicitly addressing whether certain members of the House (as opposed to the collective House via a vote) may initiate an impeachment proceeding. That language holds that “The House . . . shall have the sole power of impeachment.” The key question, then, is what the Constitution means with the phrase “The House.” Is it the entire body of the House, or can Nancy Pelosi contort the text to hold that “the House” merely means “the Speaker of the House” acting by fiat?
As noted above, to the extent impeachment overrides the voters’ will, there is a good argument to be made that the entire House must go on record via a vote in order that the People, during the next election cycle, can make their pleasure or displeasure known. This, of course, is what Pelosi is avoiding — she knows that she does not speak for a majority. Emotionally, her party members may be all in with impeachment, but as a practical matter, many know that the voters will kick them out of office if they take a formal stand.
But to return to the Vox argument, examining the text in Nixon v. U.S. establishes that, at the very least, that decision does not control — indeed, it never addresses — whether the House of Representatives may validly initiate an impeachment proceeding without a full, on-the-record vote of the House members. Contrary to Vox, a House Speaker announcing without a formal vote that “we’re doing an impeachment investigation,” is a question of first impression. Indeed, there is no court case on point because, before progressives decided to turn the House into a Star Chamber with Trump and his voters below the law, this is an issue so far out of the normal and fair process that no American — nor, for that matter, any British citizen in pre-Revolutionary times — has had to litigate it.
The second question bedeviling Pelosi’s unusual “impeachment inquiry” concerns the deeply unfair and one-sided means by which Pelosi is conducting it. Precedent has always been the case, in both England and America, that the accused may participate in his or her impeachment inquiry and that the minority gets procedural protections. Outside of the old, hated Star Chamber, there is no historical precedent for procedures that hold proceedings in secret while shutting out both the minority party and the accused — yet these are the procedures Nancy Pelosi has adopted for her “impeachment inquiry.” What Pelosi and Schiff (who is effectively putting the Senate’s seal of approval on these proceedings) are doing is a mockery of due process. So, are Pelosi’s bizarre procedures also immune from challenge?
That is a closer question. Under Rehnquist’s sweeping holding in Nixon — to the effect that the Senate, when acting in a judicial capacity can make its own rules — the House rules, one sided as they are, are indeed immune to challenges. However, that’s too facile a conclusion. Unlike the Star Chamber now operating in the House, in the Nixon case, as Rehnquist made clear, even though the proceedings were held before a committee, rather than the entire Senate, Nixon had full due process rights, including a public trial.
The unique facts in Nixon meant that, while several justices agreed with the Court’s ultimate decision, they were troubled with the reasoning and therefore wrote concurrences explaining those concerns. Justice Souter, presciently, wrote in his concurring opinion that a situation could arise in which a Congressional body’s conduct was so devoid of constitutional protections that the Supreme Court could overrule its chosen procedures:
One can, nevertheless, envision different and unusual circumstances that might justify a more searching review of impeachment proceedings. If the Senate were to act in a manner seriously threatening the integrity of its results, convicting, say, upon a coin-toss, or upon a summary determination that an officer of the United States was simply ” ‘a bad guy,’ ” ante, at ____ (WHITE, J., concurring in judgment), judicial interference might well be appropriate. In such circumstances, the Senate’s action might be so far beyond the scope of its constitutional authority, and the consequent impact on the Republic so great, as to merit a judicial response despite the prudential concerns that would ordinarily counsel silence. “The political question doctrine, a tool for maintenance of governmental order, will not be so applied as to promote only disorder.” Baker, supra, at 215, 82 S.Ct., at 709. (Emphasis added.)
Put more simply, the question is not, as Vox would have it, whether the House may adopt its own procedures. The question is whether the House has the right to adopt procedures that promote “disorder” — that is, rules that are so one sided as to wholly “call into question the integrity of its results.” That, it would seem, is going to be something that can and should be litigated to the Supreme Court. And it is beyond irony that the House Democrats, who have created this Constitutional crisis by jettisoning procedural precedents to create this farce of impeachment theater, will certainly argue vociferously that the Supreme Court must honor Nixon’s precedent to find the House’s precedent-breaking acts non-justiciable by the Court. Does anyone else see a problem with that?
Some, in defending the one-sided rules the House adopted in order to manipulate an impeachment of President Trump, liken the House action to a Grand Jury proceeding wherein jurors determine whether the state has mustered a case strong enough to convince a majority of jurors that the matter should proceed to trial. These proceedings are always held in secret and the accused has no right to appear and make a defense. That is a ludicrous comparison to impeachment, where the House, an elected, representative body, is voting upon the very legitimacy of the People’s electoral choice.
Paul Mirengoff, writing at Power Line, addresses the argument that impeachment in the House can or should be treated as a Grand Jury proceeding:
. ., . As far as I can tell, the Democratic House wants to deny President Trump anything resembling due process. It seems to view its role as akin to a grand jury with the Senate acting as a regular jury. A suspected criminal has very few rights before the grand jury. His opportunity for due process is afforded at the trial stage.
This model has very little to recommend it, either by way of precedent or common sense, in the impeachment context. The two modern impeachment proceedings — of Richard Nixon and Bill Clinton — weren’t handled this way. In both instances, the House adopted procedures that afforded the president due process.
The procedures approved by the Judiciary Committee for the Nixon and Clinton impeachments stated “[t]he President’s counsel may question any witness called before the Committee.” President Clinton’s attorney questioned Ken Starr when he appeared before the Judiciary Committee and President Nixon’s attorney questioned each of the nine witnesses that appeared before the Judiciary Committee.
The procedures approved by the Judiciary Committee for the Nixon and Clinton impeachments stated “[t]he President and his counsel shall be invited to attend all hearings, including any held in executive session.” President Clinton’s attorneys were allowed to call and question 14 expert witnesses before the Judiciary Committee.
Finally, it’s my understanding that in every prior presidential impeachment inquiry in American history, the full House voted to authorize the inquiry.
So far, it looks like Nancy Pelosi has rejected each of these precedents.
Common sense tells us that the grand jury model should not apply to the impeachment of a president. . . .
Nothing about this model makes sense in the impeachment context. Congressmen aren’t pulled in randomly off the street. They are the elected representatives of the American people. In an impeachment proceeding, all members of the House should be able to vote on the basis of the fullest, most fairly developed record.
This entails a proceeding in which the president receives due process — one in which his lawyers can attend all hearings, question all witnesses, and call witnesses of their own.
The president, moreover, is not an ordinary criminal defendant. He is the chief executive officer of the U.S. government and commander-in-chief of the U.S. armed forces. He typically, and in this case, was elected president by the American people. He should not be indicted as if he were a ham sandwich.
Impeachment isn’t a trifling matter, it’s a momentous one. It entails a trial that will bring the Senate to a halt. It will divide the nation and suck the oxygen out of all other political and policy discourse. The matter won’t be resolved by a plea bargain or one week trial in some faraway court room.
None of this is an argument against impeaching President Trump. But it does counsel strongly in favor of an impeachment proceeding that is both transparent and fair to the president — one in which he receives due process, including the right to have his lawyers participate fully.
And this is before even raising the argument that the substance of the House’s impeachment claim is not within the original meaning of “a high crime and misdemeanor,” a point made by Alan Dershowitz writing recently at the Wall Street Journal. According to Mr. Dershowitz:
As for the allegations against President Trump, obstruction of justice is plainly a high crime, but a president cannot commit it by exercising his constitutional authority to fire or pardon, regardless of his motive. (It would have been an impeachable offense in Mr. Clinton’s case, but the facts were disputed.) Neither is it a crime to conduct foreign policy for partisan or personal advantage—a common political sin with no limiting principle capable of being applied in a neutral manner.
The Framers, by rejecting open-ended criteria such as “maladministration” and substituting more specific and criminal-like criteria, sent a message to future generations: Impeachment should not be a political measure governed by “the comparative strength of parties.” It should be based on “the real demonstration of innocence or guilt” of “the accused.” It is left to Congress to be reasonable and conscientious in interpreting the words “treason, bribery or other high crimes and misdemeanors”—a tall order in our hyperpartisan age.
To finish, let me add a parting thought: What is happening in the House — this abuse of power to manipulate the process of impeachment and strip the accused of all protections to reach a wholly political end — is rule by tyranny of the majority. Another way to frame that is to frame it as our Founder’s did in the 18th century, “pure democracy,” something that – like socialism and communism – sounds good, but that has been shown unworkable and disastrous in the pages of history.
Our Founders knew the problems of this rule by tyranny of the majority and it is why they designed a Constitution to minimize its impacts everywhere they could foresee it as a problem. As John Adams wrote, democracy unchecked by rules to protect the minority produces naught but “fraud, violence and cruelty.” Alexander Hamilton wrote of it that its “very character” is “tyranny,” its very “figure deformity.” And as Madison wrote, “A pure democracy can admit no cure for the mischiefs of faction. A common passion or interest will be felt by a majority, and there is nothing to check the inducements to sacrifice the weaker party.” Marvin Simkin, writing in the Los Angeles Times in 1992, gave those sentiments a more modern cast:
- Democracy is not freedom. Democracy is two wolves and a lamb voting on what to eat for lunch. Freedom comes from the recognition of certain rights which may not be taken, not even by a 99% vote.
More openly than ever before in our Nation’s history, progressives desire pure democracy — at least so long as they hold a numerical majority by fair means or foul — for this country. We are seeing it at the micro level in this impeachment proceeding, but we are seeing it at the macro level in everything else progressives do. Whenever they achieve a majority, then they want the rules changed to a pure democracy so they can exercise unfettered power. And with those rule changes come such things as Court packing, so that they will tie the hands of non-progressives and always rule over this country, even when out of the majority.
Our system of government is designed to respect the will of the majority while protecting the rights of the minority and the individual. It is why our government is designed as a Republic rather than a democracy. In the legal sense, “due process” exists to insure that the individual does not unfairly become the victim of the passions of someone cloaked in the power of government. In the political sense, “checks and balances” exist to insure that, while the majority will is respected, the rights of the minority party are protected. Are all of those to be tossed out now, sacrificed on the progressive altar of “orange man bad” and the belief that only progressives have an inherent and moral right to rule over the rest of us?