A way forward to an impeachment inquiry

There are two schools of thought on impeachment, one transactional, the other a call to duty under the Constitution.

The transactional argument that many pundits and House Speaker Nancy Pelosi make is that impeachment is politically divisive, it will only increase Republican tribalism, and lawless Republicans in the Senate who are the co-conspirators and accessories aiding and abetting Trump’s obstruction of Congress and obstruction of justice will never vote to remove him from office, thus his “acquittal” (by jury nullification) will establish a dangerous precedent that will legitimize and embolden Trump’s lawbreaking and further destruction of democratic norms and institutions. This is not an unreasonable argument.

But a dangerous precedent that will legitimize and embolden Trump’s lawbreaking and further destruction of democratic norms and institutions will also result if Congress does not impeach Trump. Silence implies consent: Qui tacet consentire videtur, ubi loqui debuit ac potuit (He who is silent, when he ought to have spoken and was able to, is taken to agree) — a Latin proverb.

The impeachment process is actually an investigation. The House becomes sort of a grand jury (but not quite) to hear evidence into whether or not crimes have been committed. It does not necessarily result in an “indictment,” an impeachment referral from the full House to the Senate, but can be a verdict of the House. There should not be a rush to an impeachment trial in the Senate as rabid Republicans mistakenly did with President Bill Clinton.

Former Senate majority leader Harry M. Reid (D-Nev.) is urging House Democrats to open an impeachment inquiry into President Trump — although they should not necessarily impeach him. “It’s not the right thing to do nothing,” Reid said in an interview with USA Today published Tuesday. “It’s [also] not the right thing to jump into impeachment without doing an inquiry.”

Senator Reid’s former aid Adam Jentleson explains at GQ Magazine, The Political Costs of Not Impeaching Trump (excerpts):

There are two lessons here for House Democrats as they debate whether to open an impeachment inquiry into President Trump.

First, polling can change.

I don’t know how else to say this: getting impeached is bad. It is not something you want to happen to you, especially if you’re president. You do not want to go down as one of only four presidents in history to be impeached. This is a bad thing. Only Democrats, bless our hearts, could convince ourselves that it is good for a president to be impeached.

Richard Nixon’s approval rating was at 65 percent when his impeachment process began and only 19 percent of the public supported his impeachment. By the end, the numbers had flipped: his approval was 24 percent and support for impeachment was 57 percent. Former president Bill Clinton survived because he was popular and the man pursuing him, Independent Counsel Ken Starr, was not. The public rightly thought Starr was on a fishing expedition. By contrast, Special Counsel Robert Mueller is popular and the public thinks he is fair, while Trump is historically unpopular. Even though Clinton survived, his heir apparent lost the next election—which he had been heavily favored to win—while Republicans gained seats in Congress.

The second lesson from the [Mitch McConnell’s blockade of Judge Merrick Garland] experience is that like nature, power abhors a vacuum. The decision not to impeach is not a decision to focus on other things, it is a decision to cede power, control, and legitimacy to Trump. Trump is not a master chess player, he just bluffs his opponents into forfeiting their moves—and that is exactly what he is doing to House Democrats.

For their part, House Democrats have argued that by foregoing impeachment they can shift the conversation to topics their consultants tell them are safer ground, like health care. That’s not going to happen. Reporters cover news, and only events that drive news can shift the message. House Democrats are understandably proud of having run and won on health care in the 2018 midterms. But their campaign messages were buoyed by a constant flood of major health care news coming out of Washington, DC, driven by the very real threat that Republicans would repeal or replace the Affordable Care Act. But since Democrats took back the House, that’s not going to happen. This is a good thing, but it severely limits Democrats’ ability to drive news on health care. Passing bills in the House that are guaranteed to go nowhere in McConnell’s Senate, as House Democrats recently did with bills to strengthen Obamacare and lower drug prices, will not drive a message.

The void that House Democrats are ceding to Trump is the space between now and election day. Filling that space with easy messages like health care is not a viable option. And a good rule of thumb of politics is that if you have the power to do something that hurts your opponent, you should do it.

Impeachment is a long process that will highlight Trump’s crimes, which according to (literally) one thousand former federal prosecutors, include “multiple felony charges for obstruction of justice.” Imagine the Michael Cohen, James Comey, or William Barr hearings but on steroids, for many weeks. Anything can happen and hearings can go haywire, but the odds of making a convincing public case against Trump are stacked strongly in Democrats’ favor. Trump’s crimes are serious and laid out in meticulous detail by an unimpeachable source. The public already believes he committed serious crimes by a margin of two to one. There is already a loud chorus decrying Trump’s crimes and arguing that he should be impeached, ranging from Kellyanne Conway’s husband to a sitting Republican Congressman. In this case, the impeachment process is like one of those meals where all the ingredients come in a box: you have to boil some water and maybe crack an egg, but it’s basically idiot-proof.

If and when the House votes to impeach, the ball goes to the Senate. The Senate can ignore it, which means the House’s impeachment is the last word. That would be fine. But McConnell would be under enormous pressure from Trump and the entire right-wing echosphere to call a Kangaroo court into session for the purpose of letting Trump off. If the Senate conducts a trial, Senate Republicans up for reelection in 2020—like Maine’s Susan Collins and Colorado’s Cory Gardner—will have to decide whether to vote to remove from office a President who has been shown to have committed serious crimes, or protect him. They will likely vote to protect Trump and it will cost them: they will have to explain which of Trump’s many crimes they think are no big deal, why they disagree with the many voices from their own party saying his crimes make him unfit, and why a criminal president should be allowed to continue in office.

More importantly, if the public believes Trump is guilty but the Senate lets him off anyway, he won’t ever be truly exonerated—he’ll be O.J. Simpson, assumed guilty but sprung by allies and circumstance. Some Democrats have argued that we should skip impeachment and vote Trump out instead. But if the House impeaches Trump and Senate Republicans fall in line to protect him, the argument that the ballot is the only way to remove him will be supercharged.

As I have argued, in any impeachment trial in the Senate, Democrats must put not just Donald Trump but also his Republican co-conspirators and accessories who are aiding and abetting his obstruction of Congress and obstruction of justice on trial. Corrupt Republicans may “acquit” Trump in an impeachment trial through jury nullification, but the Senate is not the final arbiter of justice — the American people are. Demonstrate to the American people that the Republican Party has become a criminal enterprise under the control of crime boss Donald Trump and that all of them are legally culpable and must be removed from office in 2020.

By contrast, declining to impeach Trump validates his [false] claim that Mueller exonerated him. At a Grand Rapids town hall held by Michigan’s Justin Amash, the lone Republican Congressman who has come out for impeachment, an attendee was confused by Amash’s position until hearing him lay out the case for an inquiry. “I was surprised to hear there was anything negative in the Mueller report at all about President Trump. I hadn’t heard that before,” she told NBC. “I’ve mainly listened to conservative news and I hadn’t heard anything negative about that report and President Trump has been exonerated.” People will not know what Trump did wrong if Democrats don’t tell them.

Even more ominously, Trump’s weaponized Department of Justice under Barr, who has shown himself to be Trump’s eager and obedient partner in abusing the power of the state to advance the president’s political interests, will inevitably invent a pretext for investigating the Democratic nominee. Democrats should consider whether they’d rather engage that fight against a president who has been impeached for serious crimes, or against a president strengthened by the de facto exoneration bestowed when his opponents declined to pursue the evidence against him.

It is a long way from June 2019 to November 2020. And as they say in Boston, you can’t get there from here. Hoping everything turns out well while giving Trump free space to wield his power is unlikely to end well.

The fight will be hard for House Democrats and the appeal of dodging it is strong. But like the monsters in “It Follows,” this fight will find you. It already has.

There is no way over, under, or around impeachment—only through.

Harvard Law Professor Laurence Tribe makes a similar argument, and offers a way forward. Impeach Trump. But don’t necessarily try him in the Senate.

It is possible to argue that impeaching President Trump and removing him from office before the 2020 election would be unwise, even if he did cheat his way into office, and even if he is abusing the powers of that office to enrich himself, cover up his crimes and leave our national security vulnerable to repeated foreign attacks. Those who make this argument rest their case either on the proposition that impeachment would be dangerously divisive in a nation as politically broken as ours, or on the notion that it would be undemocratic to get rid of a president whose flaws were obvious before he was elected.

Rightly or wrongly — I think rightly — much of the House Democratic caucus, at least one Republican member of that chamber (Rep. Justin Amash of Michigan) and more than a third of the nation’s voters disagree. They treat the impeachment power as a vital constitutional safeguard against a potentially dangerous and fundamentally tyrannical president and view it as a power that would be all but ripped out of the Constitution if it were deemed unavailable against even this president.

That is my view, as well.

Still, there exists concern that impeachment accomplishes nothing concrete, especially if the Senate is poised to quickly kill whatever articles of impeachment the House presents. This apprehension is built on an assumption that impeachment by the House and trial in the Senate are analogous to indictment by a grand jury and trial by a petit jury: Just as a prosecutor might hesitate to ask a grand jury to indict even an obviously guilty defendant if it appeared that no jury is likely to convict, so, it is said, the House of Representatives might properly decline to impeach even an obviously guilty president — and would be wise to do so — if it appeared the Senate was dead-set against convicting him.

But to think of the House of Representatives as akin to a prosecutor or grand jury is misguided. The Constitution’s design suggests a quite different allocation of functions: The Senate, unlike any petit (or trial) jury, is legally free to engage in politics in arriving at its verdict. And the House, unlike any grand jury, can conduct an impeachment inquiry that ends with a verdict and not just a referral to the Senate for trial — an inquiry in which the target is afforded an opportunity to participate and mount a full defense.

Take, for instance, the 1974 investigation of President Richard M. Nixon when the House gave the president the opportunity to refute the charges against him either personally or through counsel and with additional fact witnesses. (Nixon chose to appear only through his attorney, James D. St. Clair.) Following its impeachment proceedings, the House Judiciary Committee drafted particularized findings less in the nature of accusations to be assessed by the Senate — which of course never weighed in, given Nixon’s resignation — than in the nature of determinations of fact and law and verdicts of guilt to be delivered by the House itself, expressly stating that the president was indeed guilty as charged.

It seems fair to surmise, then, that an impeachment inquiry conducted with ample opportunity for the accused to defend himself before a vote by the full House would be at least substantially protected, even if not entirely bullet-proofed, against a Senate whitewash.

The House, assuming an impeachment inquiry leads to a conclusion of Trump’s guilt, could choose between presenting articles of impeachment even to a Senate pre-committed to burying them and dispensing with impeachment as such while embodying its conclusions of criminality or other grave wrongdoing in a condemnatory “Sense of the House” resolution far stronger than a mere censure. The resolution, expressly and formally proclaiming the president impeachable but declining to play the Senate’s corrupt game, is one that even a president accustomed to treating everything as a victory would be hard-pressed to characterize as a vindication. (A House resolution finding the president “impeachable” but imposing no actual legal penalty would avoid the Constitution’s ban on Bills of Attainder, despite its deliberately stigmatizing character as a “Scarlet ‘I’ ” that Trump would have to take with him into his reelection campaign.)

The point would not be to take old-school House impeachment leading to possible Senate removal off the table at the outset. Instead, the idea would be to build into the very design of this particular inquiry an offramp that would make bypassing the Senate an option while also nourishing the hope that a public fully educated about what this president did would make even a Senate beholden to this president and manifestly lacking in political courage willing to bite the bullet and remove him.

By resolving now to pursue such a path, always keeping open the possibility that its inquiry would unexpectedly lead to the president’s exoneration, the House would be doing the right thing as a constitutional matter. It would be acting consistent with its overriding obligation to establish that no president is above the law, all the while keeping an eye on the balance of political considerations without setting the dangerous precedent that there are no limits to what a corrupt president can get away with as long as he has a compliant Senate to back him. And pursuing this course would preserve for all time the tale of this uniquely troubled presidency.

The time to begin this impeachment inquiry is now. No more delays or accommodations to a White House engaged in criminality and bad faith. Donald Trump must be branded with the scarlet letter “I” for all history.