Impeachment

The House Impeachment Process

|The Volokh Conspiracy |

Now that the (first?) impeachment of Donald J. Trump has come to its inevitable conclusion, it is worth reflecting on how the House managed the process of putting the president on trial for high crimes and misdemeanors. Over at Lawfare, I picked through the rubble.

How the Senate performed its part of the impeachment drama will likely have long-term consequences as well. It was hardly a perfect trial, and if Susan Collins seriously thought the president would be chastened by how things turned out she has certainly had more opportunities to ponder Trump's essential nature. I still find it hard to believe that Trump liked telling the story of the snake during the 2016 campaign, and that his supporters did not pause to contemplate his punchline: "You knew damn well I was a snake before you took me in." Perhaps it is just me, since the story of the snake reminds me of the similar story of the scorpion and the frog and its even more Trumpian punchline: "I can't help it. It's my character." But Senator Collins can't keep herself from playing the frog.

But before the articles of impeachment ever reached the Senate and before it became evident the lengths the Republican majority would go to sweep the Ukrainian fiasco under the rug, the House made a mess of the impeachment process. Rather than attempting to rise above partisanship, the Democrats at every turn made the impeachment more partisan. Rather than taking care to move through the process of impeaching a president deliberately and cautiously, they stumbled through a chaotic process that gave the White House unearned talking points. Rather than laying out a clear and coherent narrative for the public that justified taking the dramatic step of passing these two articles of impeachment and asking the Senate to remove a sitting president from office, the House struggled to nail down the points it did attempt to make and did not bother to present the public case for others. The internal politics of the Democratic coalition undoubtedly played a role in shaping how the impeachment process was conducted, but the number of unforced errors is striking.

It seems unlikely that even in the aftermath of this impeachment, the House will refrain from going after presidents again. And the House should be willing to impeach a president when events justify doing so, despite the political challenges of moving an impeachment through the House let alone winning a conviction in the Senate. But future congressional leaders should take some lessons from this process and not embark on an impeachment unless they can do a better job of it than the Democrats did this time around.

Here's a taste:

The House sent mixed signals about the need for immediate action against the president. It chose to rush the process of producing articles of impeachment but then ostentatiously refused to deliver the articles to the Senate so as to start the trial. It struggled to identify the strategic goals of the impeachment and, as a result, was left with a mismatch between the facts that could be demonstrated and the cataclysmic rhetoric that was meant to justify the president's immediate removal.

Read the whole thing here.

Advertisement

NEXT: Could President Trump Control the CFPB After He Leaves Office? (Updated)

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. As if having to tolerate the endless hand wringing and gnashing of teeth over the sham political impeachment was not enough, now we are going to have to endure endless post-mortems on the subject.

    The left is going to argue it was the Senate’s fault for not calling witnesses and conducting a “fair” trial. (When has the word “fair” trial ever been used as a talking point for the PROSECUTION to make its case BTW?) And they will throw the Republican Senators under the bus for “not doing their job” while completely ignoring the thin evidence the House built into the record to support its Articles.

    And let’s be honest, if Trump was this huge fascist dictator who was abusing executive power daily, all in the name of white supremacy, how hard of a task would it have been for anyone to make a sane, rational case for his removal? I mean the media paints the guy as literally Hitler every single day. If he was guilt of even 10% of what he is accused of doing then the Democrats should have been able to get bipartisan support of impeachment and more then enough Senators willing to remove him. It wouldn’t even be a close call.

    We will see how history writes this, but I don’t think it is going to end well for the House.

    1. I don’t quite see it that way, while conceding your general point.

      The more poignant issue is that if Trump were really the monster his detractors claim then anything as feeble as the prosecution actually made was not only doomed to fail due to incompetence, but would be ineffective as Trump was (in their view) elected by blatant racists with most of the guns in the US, so he could have safely ignored such a removal attempt, just like the dictators he’s declared to be worse than.

      But I don’t think that’s what people actually think. Just like how the campus rape statistic of 1 in 5 women being raped isn’t believed – because if it were no one would let their daughters attend, nor would the women themselves. If Trump were actually a budding dictator the appropriate action would be to stockpile ammo and learn to use guns effectively, not advocate for giving Trump more power by seizing those same guns. After all, if you were even mildly cognizant of world history and also though Trump were anything like a dictator you’d know that gun bans are only enforced against the opponents of the dictator; their supporters always get to keep theirs, and that disarmament would be all that’s needed to end your liberties.

      1. If Trump were actually a budding dictator the appropriate action would be to stockpile ammo and learn to use guns effectively, not advocate for giving Trump more power by seizing those same guns.

        And I don’t quite see it this way, while conceding YOUR general point. 🙂

        Especially since the President’s opponents are on the left, I don’t think you’d see them clamoring for guns. But what you WOULD see them doing, if they really believed the stuff about how he was a fascist dictator, is protest.

        The left is good at protest. I think even many conservatives would concede that point. When the left has a war that they want to criticize, or police misconduct they want to draw attention to, or women’s rights that they worry are slipping away, they can and do take to the streets. And they get a lot of attention.

        If the left truly believed that we were two steps away from fascism, they would be out on the streets, marching, all the time, just like they were in the 1960’s. The fact that they aren’t shows you they know this is more rhetorical than that.

        1. I don’t think they’re “good” at protest. What they are is “inclined to” protest. The reason I deny that they’re good at it, is that they tend to protest in ways that are really lousy at persuading anybody who isn’t already in their camp.

          This doesn’t really challenge your point, which is that, from ANY perspective, they’re not acting like they think Trump is a rising dictator.

          1. Your implication is that the purpose of protest must be to persuade the undecided. But a lot of lefty protest is not intended to persuade onlookers but to use actual force and coercion against the targets of their protest. Shouting down speakers, physically blocking access to events, jostling, threatening and even assaulting speakers, Andy Ngos etc is not an attempt to persuade onlookers, it’s an attempt to physically prevent the enemy speaking and to deter the enemy from trying to speak. And there are more sophisticated embellishments like organising a demo that provides a compliant university administration to slap a fat “security” fee on the enemy speaker.

            This sort of protest is useless for persuading third parties, but it’s often pretty successful for its actual purpose – which is “No Platform.”

        2. “The left is good at protest.”

          Depends on how you define being good a protest. If you would define it as I would as achieving meaningful reform/change through protest, I don’t the the case that the left is good at protest is all that clear.

          1. It’s not whether the left is or isn’t good at protesting, protesting isn’t a good tool for achieving meaningful reform or change.

    2. The left is going to argue it was the Senate’s fault for not calling witnesses and conducting a “fair” trial.

      I don’t see anyone “on the left” arguing that. More than a few Republicans conceded that the House made their case without added witnesses. And they know that more evidence will be coming out. They don’t want to look foolish, after all.

      No. the left argues that the right argues that Trump is King and can basically do whatever he wants. There is no official action that would harm Trump that McConnell and Barr won’t block. Not just the trial in the Senate. Full stop.

      Don’t worry about it though. When we have a Democratic president I am sure the Republicans will rediscover their oath of office.

    3. Jimmy, pretty sure when history writes it, Trump is going to be found guilty of a good deal more than 100% of what he has been accused of doing—and that will be true even after history acquits him of a thing or two.

      Also, the charge against the Republican Senate is not a charge of no “fair trial,” it is a charge of no trial at all.

      Another also, nobody in the future will have any trouble at all understanding that the second article was rock solid—not at all dependent on “thin evidence.” People who think otherwise are the victims of especially bad misinformation. You can tell that because those folks keep yowling about executive privilege, a claim for which the record offers not a bit of support, even though Trump’s lawyers and Fox News never let up on it. On that one, you have been lied to.

      1. On the second article you are mistaken, Stephen. I take it that you are taking the same position as the House, that resistance to comply with a subpoena is obstruction of congress. It’s not! Any one is entitled to avail themselves of the legal system to resist a subpoena. Note that Obama did so at least nine times.

        Regarding executive privilege, I don’t believe Trump, nor his team, raised this as a defense, even once. I could be wrong. Do you have a citation?

        1. I think this from 3.30 for about a minute covers the point about executive privilege

          https://www.youtube.com/watch?v=AO_X02xEzLk

          the gist being that the President’s team did not assert executive privilege, not because there was no good claim to it, but simply because they asserted other defenses instead

        2. On the second article you are mistaken, Stephen. I take it that you are taking the same position as the House, that resistance to comply with a subpoena is obstruction of congress. It’s not! Any one is entitled to avail themselves of the legal system to resist a subpoena.

          Maybe, but Trump did not do so. In fact, Trump took the position that the legal system was required to stay out of it, that it was a non-justiciable question.

        3. There’s a difference between “your subpoena is overbroad/poorly crafted, so I’m not going to go beyond a limited response” and “I refuse to cooperate with any request or subpoena from you.” Nothing required Congress to wait for Trump to run out the clock on the latter.

          1. Maybe having a specific charge and an actual instigation rather than a fishing expedition to find a charge with no authority authorized by the House.

            1. The House committees had all the authority they needed, sweetheart, and if you’re referring to the “why haven’t you passed an impeachment resolution?” talking point, the White House didn’t start complying when the House passed said resolution. It was never meant to be an actual rationale–just a distraction. It’s adorable that you took it seriously, though.

              1. I’m glad somebody remembers Trump and his administration refusing to cooperate with any impeachment inquiry not formalized with a vote. If you want cooperation, they said, you need a vote.

                The House did, and found everything the White House had said was a lie.

                1. “found everything the White House had said was a lie.”

                  Surprising nobody.

              2. if you’re referring to the “why haven’t you passed an impeachment resolution?” talking point, the White House didn’t start complying when the House passed said resolution

                Just out of interest, as a matter of law (and IANAL) this seems rather unlikely. Stipulating, for the sake of argument, that the President’s lawyers were correct that the subpoenas issued prior to the House resolution were invalid for lack of authority, is it really the case that they would instantly become valid once the resolution was passed ?

                I should have thought it was much more likely that the original subpoenas remained invalid, since when they were issued they were issued without proper authority, and it would have been necessary to issue new ones after the resolution had established the necessary authority.

      2. The last time I looked at a study of partisan ID in university faculty, history departments were running to about 33 Democrats for every Republican, with most of them not having even one Republican.

        So, yes, it’s a given that “history will record” whatever the left wants it to record, regardless of what actually happened.

        1. Brett, I have no idea what junk study you think you are citing. But as someone privileged to study history among outstanding historians, I can tell you that political ideology and the practice of history are antithetical. That means 3 things, at least:

          1. That a great many of the best historians are not political partisans of any camp whatever.

          2. That it is possible at the same time to be both a political partisan and an excellent historian, and it is probably easier than you suppose. Because for a trained historian, those two activities impinge on each other almost not at all. During his long career, the great Eric Hobsbawm was regarded world-wide among the historical profession as the leading historian of industrial capitalism, socialism, and nationalism. Hobsbawm was a lifelong communist, whose historical work was admired and touted by conservatives, along with scholars of other stripes.

          3. If you do think of yourself as a conservative historian, or a liberal historian—meaning that you suppose such political outlooks are integral to your practice of history—then you are without doubt an incompetent historian—with perhaps an exception if your subject matter goes back no more than a few decades. In that latter case, you may be competent now, but with passage of time your output is doomed—like essentially all near-contemporary history—to degrade toward incompetence as changing political norms rob your ideological approach of relevance, and distill it into bias. Bias which later historians will struggle to scrape away, as they labor to get past your ideologically-inspired errors, and get to the truth about the past.

          So pack it up. The historical profession is not rigged against conservatives, any more than the past itself is rigged against conservatives.

          Want to read some great stuff about history (or political philosophy) by someone with a conservative political bent? Get anything by Michael Oakeshott. Want great history by someone whose political tendencies were never much evident? Read anything by Edmund Morgan. Want great history by an extreme left-winger? Read the aforementioned Hobsbawm. Among them, there is no difference in the quality of the work. Within the scope each scholar mastered, it is all the best available.

          1. “1. That a great many of the best historians are not political partisans of any camp whatever.”

            That I believe, and they are fewer all the time, due to people who ARE political partisans of a particular camp having gotten control of hiring and tenure decisions at most institutions. The faculty who aren’t left-wing are aging out.

            “2. That it is possible at the same time to be both a political partisan and an excellent historian,”

            It’s barely possible. What is much easier is to both be a political partisan, and to be thought an excellent historian by your fellow partisans.

            I don’t think you can erase the Bellesiles affair from history. At a time when history faculties were not yet as lopsidedly left-wing as today, a work of utter fraud managed to win a prestigious history award. AFTER people were pointing out its flaws. It did so because the lie it was telling was ideologically comforting.

            Today Bellesiles likely would have kept his award.

        2. Honesty about history from today’s Right might help. Let’s use Professor Whittington as an example of the historically blind, ignorant, and/or dishonest. A quote from the link he supplied :

          “First, the impeachment inquiry, which began after the Ukraine revelations, took place against an established political and rhetorical backdrop that could not have been set aside. For Republicans, the well had already been poisoned. No matter how justified the Ukraine inquiry and an impeachment based on that inquiry might have been, the critics of the Trump presidency had already sacrificed their credibility. From the moment that activists made an unprecedented effort to lobby the presidential electors to overturn the results of the general election and embraced conspiracy theories about Russia “stealing” the election, any subsequent impeachment efforts would have been heavily discounted by Republicans.”

          Does Whittington take this snowflake whining seriously? Which presidents in the last half century haven’t faced investigations at least as burdensome as Trump’s? Those investigations didn’t magically excuse or immunize misdeeds, so why the lesser standard for Trump?

          Would the professor care to apply this “logic” to Trump’s predecessors? Bill Clinton faced years of investigation over a grab-bag full of total nonsense before Starr glommed onto a blow-job-lie. I wonder if Whittington would claim the preexistence of – say – Brett Kavanaugh’s farcical “investigation” of Vince Foster’s suicide invalidates the laws on perjury. If not, why not? There has never been a special counsel “investigation” that showed such utter contempt for the law as Kavanaugh’s.

          By historical standards there was a more than enough cause to warrant investigating the Trump campaign and Russia. After all, we had DJT’s campaign manager giving private briefings to a man U.S. intelligence considered a Russian spy. We had Trump’s son-in-law asking to use Russia’s secure communication lines, not his own country’s. We had Trump’s son responding with glee when told Russia government wanted to secretly help his daddy get elected president. And we had Trump conducting secret negotiations with Kremlin officials on a massive business deal throughout the campaign – and lying to the American people about it over and over….

          In what world would this not justify an inquiry – even without the parallel Russian effort to aid Trump’s election?

      3. To be such an apologist you have to be on the DNC payroll.

      4. “No trial….”

        So what was the proceedings in the Senate exactly? Just a bunch of people getting up and engaging in pure bluster? Those things called “opening arguments” and “closing statements” were really just what then?

        I’m sure you will parade out “can’t have a trial without witnesses”, but you can and it happens all the time in courts. Plenty of cases go before a judge without any witnesses. These are summary judgements or trials on stipulated facts.

        You can try, but won’t be very successful, it forwarding that old tired argument, but be my guest. Just makes your overall case look worse then it really was in the end.

        1. “So what was the proceedings in the Senate exactly? Just a bunch of people getting up and engaging in pure bluster? ”

          Pretty much exactly that, actually.

          You had a bunch of R Senators pretending to take the case against Trump seriously, and a bunch of D Senators pretending that they expected the R Senators to take the case against Trump seriously, even though all 100 knew the outcome would be a party-line vote, no matter what evidence was presented (or suppressed).

          1. This is simply a fanciful take on the impeachment. It assumes that the D’s even had a case against Trump and were not just looking to vote for conviction no matter what. And we all know that was the case. You could have taken the vote before the House even crafted articles of impeachment and ended up with every single D voting to convict for the mere fact they didn’t like Trump. Impeachment was just a means to a presupposed ends.

            Perhaps no R took impeachment seriously because there was nothing to take seriously…

  2. You are perhaps inadvertently making the case for Trumps election, “ they stumbled through a chaotic process that gave the White House unearned talking points.”

    That is exactly why he got elected: a widespread feeling of governmental malicious incompetence – which parts or members of Congress exactly are malicious or incompetent vary from person to person, but the belief is the same.

    That’s also why Sanders is generally doing well in the primaries, and why Biden isn’t – one represents a divergent view (Sanders, Trump), and the others represent the old guard establishmentarians (Biden, Jeb, Romney).

    Even if the old guard is competent they’re seen as institutionally corrupt – in much the same way that individual Congressmen are almost invariably re-elected while Congress as a whole is held in very low regard.

    1. That’s also why Sanders is generally doing well in the primaries,

      There hasn’t been a single primary yet. (Even if you reject my pedantry and include Iowa in the category of “the primaries,” there has been a single primary.)

      1. I’ll see your pedantry, and raise you mine. There’s more ways to “do well” “in primaries” than being the one who has the most votes cast for you when they are counted. You can “do well” in primaries by performing better than expected in public opinion polling taken of likely voters, for example. If you’re expected to finish sixth (when the votes that count are actually counted) but in the poll a week ahead of time you manage to finish third, you can say you’re “doing well” even though you haven’t won a single vote yet.

        1. If you’re expected to finish sixth (when the votes that count are actually counted) but in the poll a week ahead of time you manage to finish third, you can say you’re “doing well” even though you haven’t won a single vote yet.

          You can of course say that, but you’d be wrong.

          Or to be more precise, you could correctly say that you’re doing well in a poll about the primary, but not that you are doing well in in the primary.

  3. Yeah, sure, “chaos.”

    How do you square “chaos” with the fact that the new Democratic majority deliberately and with Lawfare aforethought, changed the House rules, and Committee responsibilities and powers, to enable the new improved Schiff-in-the-cellar impeachment process…..as soon as Nancy Pelosi reacquired the gavel, months before the 25 July phone call ?

    This was a carefully constructed plan, made by oh so clever lawyers. OK, maybe it wasnt a very good plan as it turned out, but it certainly wasn’t just “chaos.”

    1. It appears the Progressive Democrats and their psychophants forgot that there is a complete record of the Clinton impeachment for all to see. So there was always going to be comparisons made between the two; in both the House and Senate.

      The House impeachment looks more like a Hail Mary because the Mueller Report did not hand them impeachable offenses against Trump whereas the Starr Report did hand the House impeachable offenses against Clinton. Yet both Clinton and Trump admins cooperated (within the law) with those independent investigations. Then you have the House choosing to give Schiff dictatorial power over witnesses, questions, even attorney representation. Not to mention refusing to take disagreements to court. Finally, choosing two abstract Articles of Impeachment for Trump unlike 17 (?) Articles of Impeachment for Clinton.

      Then you have the Senate Progressive Democrats trying to claim that using the same method as Clinton impeachment (100-0 approval) was “unfair”. As well as ignoring that witnesses in the Clinton impeachment had already been deposed by both the House and WH during the impeachment inquiry. Unlike the last minute call for witnesses that reminded people of the Kavanaugh hearings with last minute witnesses (via #CPL;) who had nothing to add to the previous lies from the previous witnesses.

      1. FlameCCT continues his track record of being 100% wrong.

        Even ignoring Trump’s attempts to sabotage the Mueller investigation, he only partially cooperated with it. For example, unlike Clinton, Trump refused to be deposed or interviewed under oath.

        Schiff did not have “dictatorial powers.” He had the same powers as the committee chair did in the Clinton impeachment.

        There were 4 articles of impeachment for Clinton, not 17; 2 of those 4 passed the House.

        In the Clinton impeachment, as in every single other impeachment in American history before this one, there were new witnesses testifying at the Senate trial who had not been deposed by the House.

        So, no, the “same method” was not used. Yes, it was unfair to refuse to hear from witnesses who had relevant information.

        1. “In the Clinton impeachment, as in every single other impeachment in American history before this one there were New witnesses testifying at the Senate trial who had not been deposed by the House.”

          A technical distinction, at best. The three witnesses in the Clinton impeachment had testified extensively before grand juries. They were not “new”.

  4. The unavoidable truth here is that Democrats resolved to impeach Trump long before they had any reason for doing so beyond his having had the gall to win the election. (In February of 2017, 58% of Democrats favored impeachment.) And then simply proceeded to grope around for an excuse.

    With the 2020 election approaching, and no good excuses materializing, they finally lowered their standards enough for this lousy case to clear the bar, which was at that point lying on the floor.

    There’s no point in wishing that the Democrats had done better: Their doing it this way was an unavoidable consequence of the combination of an absolute determination that Trump end up impeached, with the utterly unacceptable brute fact that he wasn’t providing them with any legitimate basis for doing so.

    1. You seem to have slept through the months when Pelosi was quashing impeachment attempts. Until the Ukraine revelation forced her hand

      1. “Until {…} AOC forced her hand.” Fixed it for you.

      2. No, not at all. It wasn’t “the Ukraine revelation” that forced her hand. It was the fact that the 2020 election was approaching, with Trump still unimpeached.

        As I pointed out, the very earliest polling on the topic showed a very strong majority of Democrats favoring impeaching Trump, mere weeks after he took office. Not impeaching Trump was politically impossible.

        Pelosi held out as long as she could, because nothing was providing a defensible excuse for impeachment, and she knew that impeaching Trump without a good excuse would be a disaster. But in the end, she had to go ahead without a good excuse, and “the Ukraine revelation” was manufactured to provide an excuse for doing so, just not a very good one.

      3. Correction: Pelosi was quashing impeachment attempts until the Mueller report provided the evidence needed, similar to the Starr report provided evidence against Trump. Unfortunately that failed and she had no choice but to chum the waters to find any excuse that came even close to being impeachable. Not to mention that Ukraine call didn’t even result in an impeachable act so they came up with two Articles with no evidence.

        1. A key point about “the Ukraine revelation”, as captcrisis calls it, is that it was a manufactured “revelation”; The “whistleblower” was working with Schiff’s staff, the whistleblower form being altered to clear the way for him, and then the change back-dated in an apparent effort to conceal that.

          I suspect that there are going to be some very interesting “Ukraine revelation” revelations, in the coming months.

          1. You sure do have a hard-on for conspiracies.

            1. But he’s very close to figuring out where Obama was born.

    2. “The unavoidable truth here is that Democrats resolved to impeach Trump long before they had any reason for doing so”

      Which is why the impeachment vote passed so easily last January.

  5. Your message about process suggests that crossing the t’s…would’ve meant success. Had the process been perfect, I suspect, you’d be giving us a Brad Pitt Oscar polemic.

    Neither makes a difference. The lesson to be learned here is don’t attempt an impeachment that is prima facie partisan unless the wrongdoing is as obvious as the partisanship.

  6. Yes the first impeachment is over but if the democrats keep control of the house there will be an encore then there will be curtain calls after that right up to the time Trump times out of officer. Then I expect political entities such as NYC and maybe others to take Trump to court to try to do there what the democrat house failed to do, destroy Trump for winning the election.

  7. To be accepted by the general public, the articles of impeachment should have been able to point to an actual crime – you know, like on on the books somewhere. The section of the Constitution that allows for impeachment lists ‘treason, bribery, and other high crimes and misdemeanors.’ To the great unwashed and undecided, the simple reading of this sort of demands an actual crime. No actual crime was mentioned.
    Both ‘abuse of power’ and ‘obstruction of congress’ (for referring to the courts, by God) are the sort of crimes that you know when you see them, but can not define in law. It is like impeachment for being ugly or uncouth. But not as well defined as wearing white after Labor Day.
    Even Clinton, who committed perjury and was disbarred, did not meet the public understanding of the article because the crime, while well defined, did not occur by acting as President. ‘Everyone lies about sex’ was what I remember hearing from his supporters.

    1. Disagree, Dinkle. The great mistake was inviting this argument you offer now, by letting the debate get diverted away from strictly constitutional issues, and re-centered somewhere in the thickets of statute law, common law, and legal procedure.

      The right standard for impeachment should be purely constitutional. Impeachable high crimes and misdemeanors ought to be defined as those acts which impair the ability of the sovereign People to maintain their sovereignty, or invite rivals for their sovereignty, or seriously hamper the People in exercising their sovereign prerogative to make the government deliver the kind of government the People prefer.

      The oft-cited standard examples, treason and bribery, do two of those things. So does inviting foreign intervention in a U.S. election. So does defying an impeachment inquiry. None of that is vague. None of it is hard to defend on a purely constitutional basis. The only thing which can make it unclear is resort to legalistic pettifoggery—which explains why there has been so much of that. It is what you are doing now.

      1. “So does inviting foreign intervention in a U.S. election.”

        That has never been established. I take it you’re among the crowd that believes that running for office immunizes you from investigation and indictment.

        “So does defying an impeachment inquiry.”

        So, you’re saying that defending yourself during an impeachment inquiry is an impeachable offense?

        1. That has never been established.

          It absolutely has been established. If you want to argue that Trump had a legitimate reason for doing so, then make that argument. Don’t claim he didn’t do what he and his cronies admitted doing.

          So, you’re saying that defending yourself during an impeachment inquiry is an impeachable offense?

          No. He’s saying that defying the impeachment inquiry is an impeachable offense. Concealing evidence does not fall under the umbrella of “defending yourself.”

          1. Refusal to submit to subpoenas is not concealing evidence. If the House wanted they could have taken him to court for defying the subpoenas. Congress could have sought a civil judgment from a federal court declaring that the individual in question is legally obligated to comply with the congressional subpoena. Instead, they went immediately to impeachment. Yet, in the subpoenas for his business records, they went to court.

            When congress can subpoena anyone for anything, there must be an opportunity to defend oneself against this in court.

            1. The rationale for not complying with subpoenas was “we’re not going to cooperate with you,” not “your subpoenas are overbroad.” There’s a difference between fighting over the extent of the obligation to respond and simply refusing point-blank to cooperate. In the business records case, there’s an actual legal principle at stake: what protections do private entities holding the president’s records have?

              The legal obligations imposed by a subpoena don’t only come into existence when a court says they do. Nothing required Congress to allow Trump to run out the clock on the subpoenas.

              1. The legal obligations imposed by a subpoena don’t only come into existence when a court says they do.

                Especially in the context of impeachment.

                An ordinary subpoena is a judicial document, to be used in a judicial proceeding, so it makes sense that the courts would be the ones to decide when to enforce them. An ordinary congressional subpoena in aid of legislation is a legislative document; the other branches have roles to play in the legislative process at some point.

                But impeachment involves the sole power of the House. It does not share that power with any other body at any point. To say that a court can enforce an impeachment-related subpoena is to say that a court can also refuse to enforce an impeachment-related subpoena. But that would mean that a court was interfering in the impeachment process. And courts have no authority to do that. It’s not a power shared between Congress and the courts; it resides solely in the House.

                1. That’s such bullshit, David. You’re saying that the House’s subpoena power is absolute, and not subject to review. So, the House can declare they are conducting an impeachment investigation, and subpoena anyone for any reason, and it’s not subject to contest or judicial review. Isn’t that what you’re saying? It’s rubbish.

                  1. You’re saying that the House’s subpoena power is absolute, and not subject to review.

                    With respect to impeachment, correct. That’s what sole power means. It is not subject to judicial review.

                    1. You are being deliberately obtuse. Having the sole power of impeachment does not negate the rights of those impeached. Everyone is entitled to due process under the law.

                    2. You are being deliberately obtuse. Having the sole power of impeachment does not negate the rights of those impeached.

                      Judicial review of subpoenas is not a right. (It might or might not be a good idea, but it’s not a right.)

                      Everyone is entitled to due process under the law.

                      An empty statement even to the extent that it’s true. First, it begs the question of what process is due. Second, it does not even address the question we’re discussing here, of who decides.

                    3. This from the Congressional Research Service:
                      “Congress currently employs an ad hoc combination of methods to combat non-compliance with subpoenas. The two
                      predominant methods rely on the authority and participation of another branch of government. First, the criminal contempt
                      statute permits a single house of Congress to certify a contempt citation to the executive branch for the criminal prosecution
                      of an individual who has willfully refused to comply with a committee subpoena. Once the contempt citation is received, any
                      prosecution lies within the control of the executive branch. Second, Congress may try to enforce a subpoena by seeking a
                      civil judgment declaring that the recipient is legally obligated to comply. This process of civil enforcement relies on the help
                      of the courts to enforce congressional demands. ”

                      https://fas.org/sgp/crs/misc/R45653.pdf

                    4. Yes, and that’s all well and good for ordinary congressional subpoenas. But we’re talking about impeachment, which is a separate issue.

                    5. David, I’m starting to think you’re trolling me. I hope you’re having fun. But if you’re not, can you please provide a reference in the constitution, or in the law, or in a court decision, that supports your assertion that Congress can issue a subpoena that’s an “impeachment subpoena,” different than an “ordinary subpoena,” and that failure to comply is a ground for impeachment?

                      (I think this exists only in your fantasy mind.)

                    6. BTW:

                      “While there are no constitutional provisions that explicitly give Congress the authority to investigate the executive branch and issue subpoenas, the Supreme Court has interpreted the Constitution to imply a power to conduct such investigations, according to Kimberly Wehle, a law professor at the University of Baltimore and author of “How to Read the Constitution.”

                      “It’s implied in its power to make laws and its power to impeach,” Wehle said of Congress’ power to investigate. “It has to find facts in order to legislate and decide whether to take impeachment action.” “

                    7. David, I’m starting to think you’re trolling me. I hope you’re having fun. But if you’re not, can you please provide a reference in the constitution, or in the law, or in a court decision, that supports your assertion that Congress can issue a subpoena that’s an “impeachment subpoena,” different than an “ordinary subpoena,” and that failure to comply is a ground for impeachment?

                      He already provided it. And explained it. It is the “sole power” clause. You are simply refusing to believe that it means what it says. Stop with the incredulity, and see what happens if you try on the idea that the “sole power” clause is meant to be taken literally—to mean that except for the House, no other part of government gets a say.

                  2. Publius, the impeachment power, like the election power, belongs not to the government, but to the sovereign People. In both elections and impeachments, the government plays a role in structuring proceedings, but the power exercised in each case belongs solely to the People. Your argument from incredulity, that the People’s power must be constrained, and constrained by government at that, could not be accepted except by standing American constitutionalism on its head.

                    Nieporent is right. You should pay attention.

            2. “Refusal to submit to subpoenas is not concealing evidence.”

              Nope. But telling other people to refuse to submit to subpeonas sure is.

          2. Question-begging. There was no charge of “concealing” evidence; that’s your spin. The obstruction charges were either “denying” or “not cooperating,” with various subpoenas.

            Pat Philbin ( I think that’s his name) obliterated those charges, point by point, on solid constitutional grounds; moreover, he observed that the House ( committees) chose not to litigate those issues, and withdrew the subpoena for Bolton.

            1. Thank you!

              1. No problem. Implying that subpoena resistance based on constitutional grounds is tantamount to concealing information is beyond stupid.

                Also, the ( non-justiciable) issue of house committee impeachment subpoenas being necessarily valid on the basis of “sole-power of impeachment” clause entirely misses the point.

                The primary resistance ( of 23 subpoenas) was based on the fact that the House-proper never authorized the compulsory process. Nancy Pelosi did it by herself at a press conference-and that ain’t sufficient.

                The House itself needs to pass a resolution, which is what ultimately delegates to committees the “sole-power-of-impeachment” and authorizes their subpoena power, etc.

                Since that wasn’t done, the subpoenas were invalid.

                1. No problem. Implying that subpoena resistance based on constitutional grounds is tantamount to concealing information is beyond stupid.

                  Executive immunity is not “constitutional grounds.” It’s something OLC made up. There’s nothing remotely resembling it found in the text of the constitution, and no court has ever found it to exist.

                  The House itself needs to pass a resolution, which is what ultimately delegates to committees the “sole-power-of-impeachment” and authorizes their subpoena power, etc.

                  No. Nothing in the constitution specifies any such procedure. The House decides when it is using its impeachment power. Not the executive branch, not the judicial branch. Just like Obama didn’t get to decide that the senate was in recess if the senate itself didn’t say so, Trump doesn’t get to decide that an impeachment subpoena is “invalid.”

                  In any case, that’s a bad faith argument because the House did pass such a resolution and that didn’t cause the White House to change its stance one iota.

                  1. Appreciate the thoughtful reply.

                    1. No one is referencing immunity. The invalidity of the @23 original subpoenas was based on the committees exceeding their impeachment power(s).
                    2. The constitutional grounding in defying those subpoenas rests specifically on the impeachment clause itself being violated; i.e., the House as a parent body, repeat, parent body, never authorized those particular 23 subpoenas.

                    Yes, the plain language is clear, re: House having sole power, but the text assigns the power not to a committee or individual, but to the House itself-as a body.

                    Ample caselaw, histories of every presidential impeachment, established precedent and prior democratic committee “chairs” ( you can start with Pete Rodino/Nixon) all affirm that any compulsory processes/subpoenas must begin with an expressed House approval or authorization. A vote or resolution facilitates that, and delegation mandates it.

                    Please. That’s a bad faith fact. You know as well as I do that that latent resolution didn’t attempt to redress or ratify the original 23-some invalid subpoenas “one iota.” It was a fig leaf designed to silence critics left and right, politically.

                    Indeed, it came well past a month after Pelosi announced the start of impeachment inquiries at her press conference in Sept. and served as a PR stunt designed to gloss over what everyone knew was a grand assault on procedural due processes.

  8. Remarkable to see such a thoughtful analysis of the difficulties in the House which nevertheless leaves unmentioned the most imposing source of the difficulties noted. At every step of the way, House Democrats were dogged by the certainty that if they opened the process, or even scheduled a fixed process, that would be used by Trump and the Republicans to drag in the irrelevant Bidens, and to out the whistleblower.

    To thus throw selectively to the dogs one of their presidential contenders was what Trump aimed to force, and what the Democrats could not in fairness do. Had Democrats done so, consequences for Joe Biden might not have been any worse than they turned out anyway, but at least the Democrats escaped becoming complicit in that.

    That said, yeah there was a lot else wrong with the way the Democrats ran the House impeachment. Mostly, they should have taken however long the process demanded, and evaluated whatever charges might warrant articles of impeachment. At least some of the obstruction of justice charges from the Mueller Report should have had hearings. All the subpoenas should have been fully enforced, and the witnesses called.

    To those extents, Democrats are to blame. Blame for Republicans, by comparison, is staggeringly greater.

    1. “At every step of the way, House Democrats were dogged by the certainty that if they opened the process, or even scheduled a fixed process, that would be used by Trump and the Republicans to drag in the irrelevant Bidens, and to out the whistleblower. ”

      First off, Schiff himself outed the “whistleblower”, by means of incompetent redaction on some testimony that he released, well before the Senate trial. Thus treating us to months of the bizarre spectacle of the media pretending we didn’t know who he was, and social media installing routines to automatically delete comments referring to his name, even as “the whistleblower is” autocompleted with “Eric Ciaramella” on google searches.

      Second, the prosecution doesn’t get to decide what the defense is allowed to consider relevant. There was nothing irrelevant about the Bidens, there never was. “Irrelevant” doesn’t mean, “Hurts my case, so I insist you not talk about it.”

      1. Brett…The uberlibs never learn. They will learn the hard way in November.

        1. That’s certainly one possibility. Then again, perhaps it will be you who turns out to not have learned.

      2. Second, the prosecution doesn’t get to decide what the defense is allowed to consider relevant.

        The defense can “consider” anything relevant that it wants. It does not, however, get to determine what actually is relevant.

        There was nothing irrelevant about the Bidens, there never was.

        Trump was impeached for two things: abusing the power of his office by extorting Ukraine, and refusing to cooperate with the impeachment process. The Bidens had no information about either of those things (beyond that which they could glean from reading the same newspapers as the rest of us.) Therefore, they were entirely irrelevant.

        1. Except by all evidence he did not extort Ukraine and refusing improper demands is not impeachable, at least not until they are declared proper by the court.

          1. Except by all evidence he did not extort Ukraine

            All evidence other than his own words and the words of his agents, yes. And emails, text messages, etc.

            refusing improper demands is not impeachable,

            Well, it’s half question-begging — nothing about demanding that people who were involved in the matter testify and turn over responsive documents is “improper” — and it’s half empirically wrong, as he was in fact impeached for this.

            And none of that is responsive to the point that the Bidens had no information relating to these things.

          2. by all evidence he did not extort Ukraine

            This is just stunningly out of touch with reality.

  9. Whether we continue to see impeachment used as a political weapon depends on the 2020 voters. If the voters fire the Democrat House, neither party is likely to pursue another crime-free impeachment in the near future. If not, expect a repeat political impeachment if/when Trump is reelected.

    1. If the Democrats lose the House, there may be no more impeachments for a while, but I fully expect that the effort to substitute state level prosecutions will swing into full gear.

      1. Meh. The rules in criminal court a fairly clear. He won’t be convicted in criminal court unless he’s actually guilty, right?

        1. You are familiar with the phrase, “The process IS the punishment”, right?

  10. Two things I know: This entire impeachment imbroglio is a cause for national shame; and, it will not serve our Republic well.

    The House did not fully do their job. They saw a long and torturous path in litigating subpoenas and witnesses, which is what you’re supposed to do – litigate these questions if you cannot agree -, and then made a political decision. This was the mistake, I feel. In the decision between ‘impeachment prematurely’ versus ‘don’t impeach at all’; the default setting should be ‘don’t impeach at all’.

    When we see an offense worthy of removal from office, it will be instantly clear to just about everyone. That is how it was with Nixon. The Senate simply did not see an offense worthy of removing POTUS Trump from office. This was also the case with POTUS Clinton as well.

    The focus now should be limiting the damage done to our Republic.

  11. Why Impeachment Failed

    Many Democrats and their allies in the press were calling for the impeachment of Donald Trump long before the infamous call with the president of Ukraine had even happened. Countless mainstream newspapers and magazines developed elaborate rationales for why the president should be impeached. Most of these, however, did not argue that Trump had committed impeachable offenses. Rather, they assumed as established fact that he had done so, with assertions that were usually supported by nothing other than the adverb “clearly,” as in, “the president has clearly crossed the threshold for impeachment.”

    At that time, let’s assume that half the country agreed that Trump had “clearly” committed impeachable offenses. That judgment rested only on their original character judgment of Trump, and a bunch of conspiracy theories of varying degrees of preposterousness, which they were trying on for size randomly, as if shopping for cowboy boots in a vintage store.

    https://www.nationalreview.com/2020/02/why-impeachment-failed-2/

    1. No need for any deep analysis.

      The Republicans in the Senate, excluding Romney, acted as spineless Trump toadies.

      1. Same reason the Clinton impeachment failed?

        Fun fact. There was a witness vote in the Clinton Impeachment too. And a near party line vote was made on it. Just like the Trump impeachment…

    2. Why Impeachment failed.

      There were less than 67 Democrats in the Senate.

      1. So yes a completely partisan would only work unless you had a super majority of partisans. Duh Captain Obvious

  12. Subpoenas are only as strong as the entity writing the subpoena has the power to enforce. Schiff refused to involve the judiciary. Refused to have the president defend himself. That’s on schiff

    1. Ask Trump’s favorite president Andrew Jackson how much more power the judiciary has than Congress to enforce a subpoena.

  13. Impeachment failed because they were attempting to impeach someone over something they thought about doing. That is with holding aid due to corruption of the receiving party. Which didn’t happen.

    The second article was based on giving the Schiff show anything they asked for no questions asked, i.e no due process need be applied.

    Sorry that is what the courts are for and they didn’t bother with getting a ruling.

    This had zero point zero chance of succeeding, ever so it was just political grandstanding which I guess they thought would help the Ds. LOL , they live in such a bubble that they didn’t realize that the non-Biden story would be dragged out as part of this and basically torpedo Joe’s campaign. That Joe bragging about his Quid Pro Quo wouldn’t matter. Ooops

  14. I wonder what ridiculous thing will be next. Their goal was impeach the moment he got elected so the circus will continue I’m guessing?

Please to post comments

Comments are closed.