Since taking control of the U.S. House of Representatives in the midterm election of 2018, the Democrats have been exploring how it might be possible to pursue an impeachment inquiry while retaining some plausible deniability about whether they are actually doing so. As President Trump has continued to behave in his usual manner, and as the Democratic caucus has gradually coalesced around the view that an impeachment might be necessary, the process has become more explicit. As the center of gravity in the caucus shifted toward impeachment after the revelation of Trump’s phone call within Ukrainian President Volodymyr Zelensky, Speaker of the House Nancy Pelosi finally announced that the “House of Representatives is moving forward with an official impeachment inquiry.”
But what counts as an “official impeachment inquiry,” and what is required to move forward with one? House Minority Leader Kevin McCarthy sent a letter to Pelosi asking her to “suspend” the impeachment inquiry until “transparent and equitable rules and procedures” could be put in place and a floor vote authorizing an impeachment inquiry could be taken. Pelosi responded that no vote was necessary. Now White House Counsel Pat Cipollone has written to Pelosi informing her that the administration will not cooperate with the House’s “constitutionally invalid” impeachment inquiry, in part because the House had not voted “to authorize such a dramatic constitutional step” or provided the president with “due process protections.”
Is it constitutionally acceptable for the House speaker to initiate an impeachment “by means of nothing more than a press conference”? In short, yes.
The constitutional text on this issue is spare. The Constitution simply says that the House has the sole power of impeachment. Ultimately, if the House wants to impeach someone, it needs to muster a simple majority in support of articles of impeachment that can be presented to the Senate. How the House gets there is entirely up to the chamber itself to determine. There is no constitutional requirement that the House take two successful votes on impeachment, one to authorize some kind of inquiry and one to ratify whatever emerges from that inquiry. An impeachment inquiry is not “invalid” because there has been no vote to formally launch it, and any eventual impeachment would not be “invalid” because the process that led to it did not feature a floor vote authorizing a specific inquiry. (...)
Impeachment has frequently been analogized to a grand jury indictment, and the analogy is informative here. The House is a prosecutorial body in an impeachment context. The House members themselves must decide what steps they think are necessary to satisfy themselves that a particular impeachment is warranted and to prepare a credible case that can be argued in the Senate, where the defense will have an opportunity to poke holes in it. It might be prudent for the House to create a more robust adversarial proceeding in order to help the House members themselves assess the strength of the case, but any such process is for the benefit of informing the House, not protecting the accused from a possible impeachment. A federal officer has no particular right not to be impeached, and the bar for impeachment is consequently set low.
The Senate trial, by contrast, provides an opportunity for an accused officer to mount a robust defense, plead his or her case, and seek total vindication. The procedural bar for a Senate conviction is set high. There, the House can have no expectation of a sympathetic hearing and the defendant can make use of the fact that a bipartisan supermajority in the upper chamber will almost always be necessary to remove him or her from office. It might not be possible to impeach a ham sandwich in the House, but the accused has no expectation of a fair or bipartisan hearing in the lower chamber.
Politically, the Democratic leadership is avoiding a vote to authorize an impeachment inquiry because thus far they seem uncertain whether they could win such a vote. If a vote authorizing an impeachment is seen by some citizens as indistinguishable from a vote to impeach, then House members in purple districts might well prefer to know how strong the case for impeachment actually is before they have to go on record effectively supporting an impeachment. In a perfect world, voters would be able to distinguish support for an impeachment inquiry from support for an impeachment—but in our imperfect world, the House leadership is expected to protect caucus members from unnecessary politically damaging votes. As a matter of institutional design, Congress’s ability to inquire into misconduct should not be held hostage by such electoral calculations. Rather, the system should allow for a process that allows the investigation of allegations of misconduct and uncovering of the facts, and that forces politicians to take responsibility for how they respond to those facts. A system that instead puts a thumb on the scale on the side of hiding potential misconduct is hardly in the public interest, even if it might serve the immediate personal or partisan interests of those who fear that their conduct might come under scrutiny. Americans should be reluctant to build into constitutional practice such a bias toward obstructing investigations. The constitutional framers did not themselves build in that kind of bias.
by Keith E. Whittington, LawFare | Read more:
Image:D. Myles Cullen
But what counts as an “official impeachment inquiry,” and what is required to move forward with one? House Minority Leader Kevin McCarthy sent a letter to Pelosi asking her to “suspend” the impeachment inquiry until “transparent and equitable rules and procedures” could be put in place and a floor vote authorizing an impeachment inquiry could be taken. Pelosi responded that no vote was necessary. Now White House Counsel Pat Cipollone has written to Pelosi informing her that the administration will not cooperate with the House’s “constitutionally invalid” impeachment inquiry, in part because the House had not voted “to authorize such a dramatic constitutional step” or provided the president with “due process protections.”Is it constitutionally acceptable for the House speaker to initiate an impeachment “by means of nothing more than a press conference”? In short, yes.
The constitutional text on this issue is spare. The Constitution simply says that the House has the sole power of impeachment. Ultimately, if the House wants to impeach someone, it needs to muster a simple majority in support of articles of impeachment that can be presented to the Senate. How the House gets there is entirely up to the chamber itself to determine. There is no constitutional requirement that the House take two successful votes on impeachment, one to authorize some kind of inquiry and one to ratify whatever emerges from that inquiry. An impeachment inquiry is not “invalid” because there has been no vote to formally launch it, and any eventual impeachment would not be “invalid” because the process that led to it did not feature a floor vote authorizing a specific inquiry. (...)
Impeachment has frequently been analogized to a grand jury indictment, and the analogy is informative here. The House is a prosecutorial body in an impeachment context. The House members themselves must decide what steps they think are necessary to satisfy themselves that a particular impeachment is warranted and to prepare a credible case that can be argued in the Senate, where the defense will have an opportunity to poke holes in it. It might be prudent for the House to create a more robust adversarial proceeding in order to help the House members themselves assess the strength of the case, but any such process is for the benefit of informing the House, not protecting the accused from a possible impeachment. A federal officer has no particular right not to be impeached, and the bar for impeachment is consequently set low.
The Senate trial, by contrast, provides an opportunity for an accused officer to mount a robust defense, plead his or her case, and seek total vindication. The procedural bar for a Senate conviction is set high. There, the House can have no expectation of a sympathetic hearing and the defendant can make use of the fact that a bipartisan supermajority in the upper chamber will almost always be necessary to remove him or her from office. It might not be possible to impeach a ham sandwich in the House, but the accused has no expectation of a fair or bipartisan hearing in the lower chamber.
Politically, the Democratic leadership is avoiding a vote to authorize an impeachment inquiry because thus far they seem uncertain whether they could win such a vote. If a vote authorizing an impeachment is seen by some citizens as indistinguishable from a vote to impeach, then House members in purple districts might well prefer to know how strong the case for impeachment actually is before they have to go on record effectively supporting an impeachment. In a perfect world, voters would be able to distinguish support for an impeachment inquiry from support for an impeachment—but in our imperfect world, the House leadership is expected to protect caucus members from unnecessary politically damaging votes. As a matter of institutional design, Congress’s ability to inquire into misconduct should not be held hostage by such electoral calculations. Rather, the system should allow for a process that allows the investigation of allegations of misconduct and uncovering of the facts, and that forces politicians to take responsibility for how they respond to those facts. A system that instead puts a thumb on the scale on the side of hiding potential misconduct is hardly in the public interest, even if it might serve the immediate personal or partisan interests of those who fear that their conduct might come under scrutiny. Americans should be reluctant to build into constitutional practice such a bias toward obstructing investigations. The constitutional framers did not themselves build in that kind of bias.
by Keith E. Whittington, LawFare | Read more:
Image:D. Myles Cullen
