It allows for the disclosure of the heretofore secret proceedings, but does not require it.
Some observations
O n Tuesday, House Democrats published the resolution that, once passed, will approve and govern the impeachment inquiry on the question whether President Trump should be impeached. The vote is likely to take place on Thursday.
Some observations about the eight-page resolution.
1) The resolution is flawed, for reasons we’ll get to (the flaws could be major or minor, depending on how the resolution is implemented). By any measure, though, it is a significant improvement over the status quo ante. Once it’s passed, the House as an institution will have endorsed the impeachment inquiry. As we have pointed out, the Constitution commits the impeachment power to the House, not to the Speaker or the majority party in the House. The House acts as institution only by voting. It will finally have done so once this resolution is approved. The president and Republicans will no longer have a valid argument that the inquiry is constitutionally infirm. That has been the White House’s main justification for refusing to cooperate. (This refusal is overstated since a number of executive officials have submitted to closed-door interviews and otherwise participated. This has largely been done, though, despite the discouragement of the White House, which has otherwise declined to cooperate.)
2) Not surprisingly, Democrats are posturing that the passage of the resolution means the president must produce any information directed by the House. This is an overstatement. What the resolution means is that the White House’s position of blanket, indiscriminate non-cooperation will no longer be justifiable. Nevertheless, the president maintains all the legal privileges he enjoyed — including executive privilege and attorney-client privilege — regardless of whether there was a resolution.
3) It is not clear how extensive executive privilege is. In United States v. Nixon, the Supreme Court recognized that the president’s communications with key advisers in carrying out his official duties were presumptively privileged; but it further held that the privilege was not absolute and would have to give way to the needs of a criminal investigation — particularly if the evidence at issue was critical and there was no alternative source for obtaining it. A House impeachment inquiry is not a criminal investigation. It is, however, a core constitutional function, and I believe the courts would find that its needs for information are at least as compelling as those of a criminal investigation.
4) Chances are, however, that the courts will not be given the opportunity to rule on executive privilege. The House has plenty of other witnesses and sources for the information needed to investigate the Ukraine controversy, the details of which are already largely known. Moreover, Democrats are seeking to avoid the delay that would result from protracted court battles. If the president flouts a House demand for information, the House will simply add an article of impeachment for obstructing the investigation. Democrats would obviously prefer that to court challenges they could lose; it gives them incentive to ask for rafts of information.
5) Interestingly, the Resolution takes pains to refer to the Permanent Select Committee on Intelligence as “the Permanent Select Committee,” dropping “on Intelligence” after page two. If they were just trying to be succinct, they would use the usual HPSCI shorthand. Omitting reference to the Intelligence is more likely some recognition of the strangeness of running an impeachment inquiry behind closed doors in the intelligence committee, and a suggestion to the public that this committee has been specially selected for impeachment purposes. Impeachment should be the work of the Judiciary Committee (which will take the help in inquiry’s the next phase). By doing it through the Intelligence Committee, moreover, Democrats dodge Judiciary impeachment precedents that would provide for more due process. (See Thomas Jipping’s post at Bench Memos.)
6) Not surprisingly, the resolution endorses the “ongoing investigation” that Democrats have been conducting. The resolution is pitched as a means of continuing that inquiry, not beginning anew. This is a face-saving measure: Democrats should have passed this resolution at the beginning of the inquiry. They did not do that because, as discussed yesterday, they hoped to move public opinion in their favor with selective leaks to friendly media of their closed-door proceedings — a strategy that, sadly, has worked.
Republicans are right to complain (as, for example, Senate majority leader Mitch McConnell (R., Ky.) has complained) that Democrats are continuing the secret proceedings for now, notwithstanding the promise of imminent open hearings. The closed proceedings are nearly devoid of due process — they do not feature the Republican participation provisions attendant to the open hearings (and the presidential participation provisions envisioned once things more to the Judiciary Committee). Intelligence Committee chairman Adam Schiff (D., Calif.) says they are like a grand jury, but (as I’ve explained) they are not — they are a rubber stamp for Democrats who decided three years ago that Trump should be impeached, and a vehicle for shaping media coverage by selective disclosure.
Ironically, the resolution’s endorsement of the secret hearings is portrayed as part of Democrat’s’ commitment to “open and transparent investigative proceedings.”
7) Whether the proceedings ultimately will be seen as open and transparent will depend in large part on whether the heretofore secret proceedings are disclosed. Significantly, the resolution allows for that, but does not require it. The issue is placed in the discretion of Chairman Schiff. This is part of what I referred to at the start as the resolution’s flaws. Schiff is a notoriously sharp-elbowed partisan, the protégé Speaker Nancy Pelosi (D., Calif.) placed in charge of implementing the unauthorized (by a House vote) inquiry practices of closed hearings and selective leaking. The question of disclosing transcripts will be a good early test of how straight Chairman Schiff is going to play this. The resolution empowers him to decide what should be made public, and to direct “appropriate redactions” for not only any classified information but anything he decides is too “sensitive” to be disclosed.
8) With that as a concrete example of what’s at stake, we should pause to deal with the central procedural issue. Republicans continue validly to complain about the rigged process. Whether it will be rigged going forward, though, depends on how committed Schiff and, ultimately, Judiciary Committee chairman Jerry Nadler (D., N.Y.) are to open proceedings that both are and appear to be fair. It is not frivolous for Republicans to grouse that the future open proceedings with due process are tainted by the month of closed proceedings without due process, which has made impeachment a foregone conclusion. But the procedural argument won’t win the day, and Democrats still have to make their case to the public, no matter how one-sided things have been to this point.
I am not without hope that there will be real due process in the public hearings — not because hardcore partisans Schiff and Nadler will suddenly transform into paragons of fairness, but because it is in their interest to be fair.
The court here is public opinion, and — because the president is highly unlikely to be removed by the Senate — the verdict will come in November 2020. If the House Democrats have an impeachment case against the president, the Democrats have a strong incentive to let the process play out with deferential due process befitting the seriousness of the matter. If the case is thin gruel and the process is manifestly skewed against the president, with disclosure withheld, cross-examination slashed, exculpatory witnesses denied, etc., it will look like a partisan hit job — i.e., Democrats determined to impeach a president they never accepted, not spurred by egregious misconduct.
The public will judge the House impeachment inquiry on the finished product, not the dodgy start. In this vein, Republicans are seizing on the broad discretion and control that the resolution vests in Schiff. This is a sensible strategy: Schiff has conducted himself disreputably, theatrically reading an absurd caricature of the Trump-Zelensky transcript, concealing his staff’s coordination with the so-called whistleblower (and earlier, championing the discredited Steele dossier). A former prosecutor, Schiff is a very able interrogator; he is also hyper-partisan, sneaky, and erratic.
All that said, congressional inquiries are adversarial political proceedings, which means someone has to be in charge of them. Elections have consequences, so the someone is a Democrat. Since we are in a very partisan time, Republicans and Democrats tend to vote in antagonistic lockstep. Where there are disputes, Democrats will win because they have the numbers.That doesn’t mean the process has to be rigged. That will be up to Schiff. If Republicans make reasonable requests, Schiff would be well advised not to turn them into disputes; if he denies them, Democrats will look terrible. If Republicans make outlandish demands that appear designed to delay or derail the proceedings, there will be sympathy for Schiff. A lot rides on how he presides — and how Nadler does in phase-two.
To repeat, the president and his allies are going to need a substantive defense to the charge that, with a purpose to interfere in the 2020 election, he abused his foreign-relations power by encouraging a foreign government to investigate an American citizen for violating foreign law. Making Schiff the bogeyman is only going to get them so far. It will wear thin quickly if Schiff performs well.
9) The resolution outlines a bifurcated inquiry, the first half of which includes the closed-door investigative phase that has been underway for weeks under the direction of Schiff’s Intelligence Committee. That phase will soon go public. The resolution authorizes Schiff to conduct open hearings at which he and the Republican ranking member, Devin Nunes (R., Calif.), may, with equal time, question witnesses for up to 90 minutes — with the assistance of a member of the Committee’s professional staff (there are very experienced investigators and prosecutors on the staff). The Committee would then proceed with the familiar five-minute rounds of questioning by all members. (There are 22 members of the Committee, 13 Democrats and nine Republicans.)
10) In both this hearing phase, and the later Judiciary Committee phase, there is provision for the Republican minority to seek to call their own witnesses and present other evidence, including the ability to issue subpoenas for testimony and tangible evidence. Thomas Jipping’s Bench Memos post (noted above) observes that the minority is not being given the same procedural equal standing it got in the Clinton and Nixon impeachment inquiries. The distinction, however, may be more apparent than real. Underneath the veneer of bipartisan comity in prior impeachment lurked the reality that one side was the majority and would win if any dispute arose. This reality is more patent in the current resolution — for example, Schiff and the Democrats can subpoena whoever they want; Nunes and the Republicans must make a showing of relevance in writing to Schiff’s satisfaction. The brute fact, however, is that a House impeachment inquiry is a majority show, no matter how clearly the enabling resolution articulates it.
11) The resolution directs that the Intelligence Committee (in conjunction with the Foreign Affairs and Oversight Committees, which have also been investigating) file a public report with findings and recommendations, to be submitted to the Judiciary Committee — which would then proceed with impeachment articles.
The report is supposed to include any relevant materials Schiff deems appropriate. I would anticipate, then, that the report stage is when Schiff will release any currently sealed testimony and other evidence; the report will provide him with an opportunity to spin that information as he’d have people construe it, rather than allowing the public to form its own impressions. The Republican minority will be permitted to append dissenting views. The report will outline the Intelligence Committee’s findings and recommendations; presumably, that will be the first iteration of what will become the articles of impeachment.
12) After the report is filed, the proceedings shift to the Judiciary Committee. It is finally, at that stage, that the president and his counsel will have an opportunity to participate. It is the Judiciary Committee that will formally report articles of impeachment to the full House.
We’ll have more to say about the Judiciary Committee proceedings when we get there.