Multiple House investigations are a necessary predicate to impeachment


I want to borrow an idea from Roderick Kefferpütz at Medium last year. Trumping Trump: A Gulliver Strategy: “What seems to be effective in countering Trump is a “Gulliver strategy” — a convergence of many different smaller actors to contain him, as in Jonathan Swift’s novel Gulliver’s Travels.”

This is effectively what the House congressional committees are currently doing with oversight. A raft of subpoenas have gone out over the past two weeks. Committee testimony is already being scheduled in early May. Democrats are doing their due diligence to build an evidentiary record, and more importantly, to educate the public on the impeachable offenses of Donald Trump. It has the look of an impeachment process, it is just not being called that.

For those of you not old enough to have lived through Watergate, televised public hearings of witness testimony were critical to moving public opinion in favor of impeachment. A series of televised pubic hearings in the House and Senate were held in 1973 and 1974. The dribs and drabs of almost daily revelations of scandal moved public opinion in favor of impeachment.

The House Judiciary Committee started impeachment proceedings against Nixon in May 1974. By late July 1974, three articles of impeachment were debated and approved by the House Judiciary Committee against Nixon — obstruction of justice, misuse of power and contempt of Congress. The “smoking gun” Nixon tape transcripts became public on August 5, 1974, and Nixon resigned three days later.

The takeaway lesson: take the time to build an airtight evidentiary record and educate the public on the impeachable offenses of Donald Trump. Then impeachment can occur, and it can happen quickly.

This is where Democrats are today after the release of Attorney General William Barr’s redacted version of the Mueller Report. We are only in the early stages of oversight investigations, not May 1974 in this analogy.

Chris Cillizza at CNN writes, Nancy Pelosi pleads for patience:

[T]he message that Speaker Nancy Pelosi is bringing to her House Democratic colleagues in the wake of the release of the much-anticipated Mueller report: We need to slow our roll, make sure we do our due diligence, dot all the “i’s” and cross all the “t’s.” What we can’t do is try to impeach President Donald Trump right this very second.”

(Additional reporting from the Washington Post)

[She argued in a letter to her colleagues that while Democrats would hold Trump accountable for his actions in the Mueller report, “it is . . . important to know that the facts regarding holding the president accountable can be gained outside of impeachment hearings.”]

[“Whether currently indictable or not, it is clear that the president has, at a minimum, engaged in highly unethical and unscrupulous behavior which does not bring honor to the office he holds,” Pelosi wrote.]

As we proceed to uncover the truth and present additional needed reforms to protect our democracy, we must show the American people we are proceeding free from passion or prejudice, strictly on the presentation of fact,” Pelosi wrote in “Dear Colleague” letter released Monday.

“While our views range from proceeding to investigate the findings of the Mueller report or proceeding directly to impeachment, we all firmly agree that we should proceed down a path of finding the truth.”

The letter came in advance of a conference call among Democratic House members on Monday night that was designed to begin the process of building a strategy on how best to proceed in the wake of Mueller’s report that, while damning for Trump, did not recommend any legal action taken against the President or anyone in his inner circle.

The Point: It’s a very delicate balancing act. Investigate Trump without doing so in an impeachment setting. Pelosi — as she has proven again and again over her career — is one of the deftest politicians operating these days. If anyone can do it, she is likely the one.

Democrats have now held their conference call. House Democratic leaders say no immediate plans to open impeachment proceedings against Trump:

In a rare Monday night conference call, House Speaker Nancy Pelosi stressed that the near-term strategy in the wake of special counsel Robert S. Mueller III’s report is to focus on investigating the president and seeing where the inquiries lead. Members of Pelosi’s leadership team reaffirmed her cautious approach, according to four officials on the call who spoke on the condition of anonymity to discuss private conversations.

“We have to save our democracy. This isn’t about Democrats or Republicans. It’s about saving our democracy,” Pelosi said.

But Pelosi’s message did not go over well with several Democrats, who argued that Congress has a duty to hold Trump to account with impeachment despite the political blowback Pelosi has long feared.

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Despite leadership’s effort to tamp down impeachment talk, they did not rule it out completely. In fact, after some of her members spoke up, Pelosi clarified that “if it is what we need to do to honor our responsibility to the Constitution — if that’s the place the facts take us, that’s the place we have to go.”

“I wish you would just read my letter because it, I think succinctly, presents some of the reasons, I think — whether it’s articles of impeachment or investigations, it’s the same obtaining of facts,” she said to her members. “We don’t have to go to articles of impeachment to obtain the facts, the presentation of facts.”

A good lawyer does not go to trial unprepared. A good lawyer has done discovery, reviewed all of the available evidence and deposed witnesses. A good lawyer has organized all of the probative trial evidence and issued subpoenas for witnesses at trial.

At this point, Democrats have only just begun the discovery phase. They are not nearly ready for the impeachment process. But that date with destiny is coming.

Now, I am aware that Greg Sargent reflects the view of many Democrats, that Democratic equivocation over impeachment is a moral and political disaster. Many Democrats and pundits are arguing for impeachment proceedings right now.

Political scientist Norm Ornstein argues for Pelosi’s approach at The Atlantic. Impeachment Is Not the Answer. At Least Not Yet.

So what should Democrats do? There is ample evidence of behavior on the part of the president that fits any reasonable definition of high crimes and misdemeanors—and most likely there will be a lot more when the Southern District of New York (SDNY) and other jurisdictions of the Justice Department finish their work—at least if Barr does not stymie them. The House has a constitutional responsibility to follow up.

But a formal impeachment inquiry in the House Judiciary Committee would be politically perilous—and while politics cannot override duty, Democrats cannot risk the kind of 2020 backlash that would come if a large share of the voting public came to see the House as Javert-like, abandoning its focus on health care, jobs, and the other issues that dominate most Americans’ lives in a monomaniacal quest to get Trump. A quick move to impeachment would be used by Trump and his acolytes, from the Senate to Fox and talk radio, to incite and outrage the GOP base.

That said, a failure to act, to do anything meaningful to bring this president and his gang of corrupt miscreants to heel, would rightfully enrage most liberal voters. Remember that the rage Republican-primary voters felt at their party establishment in 2016, over broken promises to bring Barack Obama to his knees, led to the nomination of Trump. A parallel rage among Democrats could lead to a deeply divided party and a disastrous presidential nomination.

There is, I believe, a reasonable path forward that, besides being politically palatable, has the added advantage of being the right thing to do. It starts with a coordinated and in-depth examination of the Mueller report by the House [i.e., the“Gulliver strategy.” ]

What we need is for the Judiciary, Intelligence, and Homeland Security Committees to conduct a series of deep dives into the areas of communication and coordination between Trump and his campaign with Russians and their surrogates, such as WikiLeaks; the multiple categories and areas of obstruction of justice that Robert Mueller outlined; the threats to our intelligence operations and our justice system from Trump and his operatives; and the moves by Russia to interfere in and influence our elections used by Trump and unchecked by Republicans. Other committees, such as Ways and Means and Banking, need to be ready to do the same thing as more information emerges from the SDNY and the New York attorney general, among others, about Trump’s financial dealings, including with the Russians, and about Russian money laundering. The witnesses need to include Mueller and Rosenstein, of course, but also the range of figures mentioned in the report, and also a range of experts in areas such as ethics, constitutional violations, intelligence operations, and election administration and security.

Democrats need to stage and coordinate hearings across committees and subcommittees, to make sure they do not overload Americans’ ability to pay attention. Most important, they need to structure the public hearings in a dramatically different way than usual. Each committee needs to use experienced counsel—a good example might be former U.S. Attorney Preet Bharara—and limit, if not abandon, opening statements, except from the chairs. No five-minute rounds of questions going down the line of every committee member, leading to utterly disjointed discourse, making it easy for hostile witnesses to evade, filibuster, or otherwise avoid follow-ups and get through a five minute period, which is then followed by a five-minute breather with an ally on the Republican side, and then another five minutes from the next member of the panel that may have nothing to do with the previous round of questions.

Give the counsel an hour to set the frame and ask in-depth questions. Either follow that with another round for the counsel or have a small group of committee members take 15 or 30 minutes to ask questions in a sustained way, with coordinated themes. This system might cause hard feelings among members who will not get their five minutes in the sun—and would reduce the public role for chairs—but it is better suited to accomplish the larger goal. And that larger goal is to build a compelling record, through vivid testimony, of what Trump and his people, including his children, did and did not do, said and did not say truthfully, that is the core of Mueller’s report.

That kind of forum should be supplemented by another. Committees should do a series of roundtables, discussions with leading experts with deep experience in the Justice Department, including the FBI, in the White House, in the intelligence world, and elsewhere, to discuss in-depth whether the behaviors they have seen in the Trump administration are typical or unusual, acceptable or unacceptable. Many of the people who would be useful to this project are familiar figures on television—Chuck Rosenberg, Mimi Rocah, Asha Rangappa, Ron Klain, John McLaughlin, Mike Hayden, Leon Panetta, John Brennan. There are others, including many who have served in Republican administrations, to add to the list.

All of this is, in my view, a necessary predicate to the formal impeachment inquiry that could then follow.

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Democrats should not jump the gun on impeachment. But it would be a serious dereliction of duty if they did not move now to set the stage for what should happen when the time and setting are right.

The House committees are prepared to investigate fully the Trump crime family, gather all the necessary evidence, and to educate the public about Trump’s impeachable offenses. Burn him to the ground and build public support for impeachment. Then Democrats will be ready for impeachment, and to shame his Republican sycophant enablers in Congress.