Democrats have tried to defend pursuing their impeachment inquiry behind closed doors by comparing it to a grand-jury inquest. I’ve given a bunch of reasons why this analogy is ill-conceived. There is one way, though, in which it is apt: With the grand jury as with politics, complaints that an investigative process has been flawed virtually always fail.
It is a lesson the White House and congressional Republicans had better internalize quickly.
Prosecutorial misconduct in grand-jury proceedings is almost never a basis to dismiss an indictment or throw out a conviction. The reason is straightforward: Even serious missteps by the investigators do not excuse or erase the serious misconduct that is under investigation. Consequently, if an accused ultimately receives a fair trial with sufficient due-process protections, a court will not throw out the case based on violations at the grand-jury stage.
That doctrine surely applies to impeachment. It is political, not legal, in nature. Unlike a criminal defendant, the president does not have an array of constitutionally mandated due-process protections. Our law vests the House with the whole of impeachment power. No court may tell the House how to conduct impeachment, and the House need only afford the president whatever minimal protections lawmakers think the public wants him to have if the proceedings are to be accepted as legitimate.
Moral of the story: Better get about the business of figuring out the best substantive defense to the charges that House Democrats are preparing to lodge. The president and his allies are not going to win this on process grounds.
On Monday, Speaker Nancy Pelosi announced that the House would finally hold a vote to endorse the impeachment inquiry that Democrat-controlled committees have been conducting by fiat for the past month. The speaker indicated that the measure will go to the floor this week, probably Thursday. It will outline the impeachment procedures going forward. Presumably, this will include granting the president and the Republican minority rights to cross-examine witnesses and present their own evidence, in hearings that will go public by mid November.
Republicans could not be blamed for gloating over this apparent cave-in by the Democratic majority. The latter had insisted that no House vote was necessary to legitimize the impeachment inquiry. Pelosi did not want a vote because she is trying to protect Democrats who hold seats in Trump-friendly districts — seats on which the party’s majority depends. So forcing those lawmakers to be politically accountable is a victory.
Still, the president and his allies should not get carried away. Democrats always planned to go public with impeachment hearings when they reached a certain mature point in their inquiry. And in divining what “mature” means, they have had their eye on the polls. The national polls are trending in their direction. Not only does the country strongly favor an impeachment inquiry (51 percent to 42 percent in the latest RCP average); independents now slightly favor the president’s removal from office (+ 2.5 percent).
Now, that is not the kind of strong consensus that would cause Senate Republicans to abandon the president in droves when we reach the seemingly inevitable impeachment trial. Nor does it reflect sentiment in pro-Trump districts, where impeachment is much less popular. But let’s face it: The Democrats’ strategy of secret witness interviews and selective leaking to allies in the anti-Trump media has been very effective. That’s not an endorsement; it’s a reluctant acknowledgement of reality.
Kevin McCarthy, the leader of the GOP minority in the House, reacted to Speaker Pelosi’s reversal on conducting a vote to endorse the inquiry by arguing that it shows awareness that the impeachment gambit has always been illegitimate. As National Review’s Mairead McArdle notes, McCarthy says the process was “botched from the start.”
Maybe . . . but a week or two from now, that’s not going to matter.
Once we have both public hearings and public disclosure of transcripts from the prior, secret interviews, Americans are simply not going to care about the irregularities in the inquiry up to this point. Again, even without more transparency, the polls have been moving in the Democrats’ favor. That is, the attack on the process mounted by the president’s allies is already losing traction; soon it will become irrelevant. The public will not be moved by process arguments as long as the Democrats afford the president and the minority a decent opportunity to refute allegations and oppose articles of impeachment.
The president is not going to win this by ranting that he has been subjected to Star Chamber tactics. He is going to have to win it on the merits.
Over the weekend, I contended that this means arguing that the flaws in the president’s negotiations with Ukraine are worthy of criticism, but they do not rise to the level of an impeachable offense under the circumstances. I went through the various considerations in some detail — the facts that Ukraine and U.S. national interests were not harmed by the delay in transferring aid; that the Ukrainian government, in the end, was not forced to investigate the Bidens; that the Ukraine facts pale in comparison to the Obama administration’s 2016 collusion with foreign powers and exploitation of intelligence and law-enforcement powers in the investigation of Trump’s campaign; and so on.
You can agree or disagree with my assessment of the case. Here’s what I don’t think you can disagree with: The president needs a defense to the case. He needs to take on the allegations and rebut them. Saying the process reeks is not going to cut it.
The secret hearings and strategic leaking have been bad. But the complaints about it have exhausted their usefulness. The warm-up is over. It’s game time.