The Volokh Conspiracy
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Mark Leibovich and Nicholas Fando wrote a behind-the-scenes profile in the Times about the impeachment process. We learn a few useful nuggets.
First, Speaker Nancy Pelosi will have the final say on the precise wording of two to four articles of impeachment:
She is the final decision maker on the wording of an expected two to four articles on presidential abuse of power, obstruction of justice and obstruction of Congress, and an accompanying impeachment report that could stretch to hundreds of pages.
There is no anticipated article based on bribery. Seth Barrett Tillman and I explained why the allegations–trading one public act for another public act–do not meet the specific requirements for bribery. Barbara McQuade sounded a similar point on Lawfare:
But rather than trying to satisfy technical statutory requirements such as "quid pro quo," and allowing Republicans to quibble over legal definitions and factual conclusions as to whether one thing was conditioned on the other, House members would be wise to frame the articles more broadly in terms of abuse of office—which is at the heart of impeachable conduct.
"Abuse of power" is an open-ended concept that can be used to embrace a wide range of activity that may not fall within the specific contours of bribery.
Second, the Judiciary Committee will vote by the end of the week, and the House will hold a floor vote before Christmas:
By the end of the week, the Judiciary Committee is likely to vote on the articles of impeachment, with a final vote on the floor of the House expected shortly before Christmas.
The Senate trial will likely begin in early January.
Why did the Judiciary Committee give the Times this exclusive. Because it would generate a glowing profile that makes everyone involved–especially those named–look fantastic. Generally, people–especially in government–talk to the press to make themselves look good. One of the biggest challenges for journalists who deal with off-the-record interviews is how to separate from the truth from puffery. I struggled with this issue on both Unprecedented and Unraveled. I received a lot of self-adulation that I reluctantly discarded.
Yet, the effort to extoll the hard work of everyone on the committee highlights how scripted this entire process is. Nothing was left to chance. Everything was scripted. Once the decision was made to proceed, the hearings were largely for show. The outcome is foreordained.
Consider a few tidbits from the piece:
This weekend, as in previous weeks, the Democrats are also holding practice hearings inside the grand Ways and Means committee room, which also serves as the backup House chamber and is kept at a perpetual frosty chill. . . .
The latest rehearsals are to prepare for a marathon hearing in the same room beginning on Monday morning. . . .
In a previous practice session before a hearing on Wednesday that featured a witness panel of constitutional scholars, Mr. Nadler, wielding his wooden gavel, spent extra time rehearsing again and again how to swiftly dispatch with parliamentary disruptions from Republicans. Joshua Matz, a lawyer brought in by the Democrats to help with impeachment, and Barry H. Berke, a veteran white-collar defense lawyer in New York who also serves as special oversight counsel for the Judiciary Committee, took seats at the witness table to sit in for the academics who would appear there the next day. . . .
Democratic lawmakers took turns walking through scripts of questions and responses they had drafted with committee aides. Mr. Nadler's chief of staff and others offered feedback: That line did not land. This question needs reworking. The general rule was never ask a question whose answer could not be readily anticipated.
I watched almost all of the hearing. The majority questioning by Norm Eisen followed a precisely crafted script. The three professors invited by the majority were asked a series of carefully planned and sequenced questions. When I testified before Congress, the counsel staff discussed questions I would likely receive in advance of the hearing. I suspect the Democrats had similar interactions.
Eisen posed only one question to the minority witness, Jonathan Turley. When Turley tried to explain his answer, Eisen shot back with "yes or no question." This reaction was likely practiced in advance. I also noticed that after a Republican parliamentary inquiry, Chairman Nadler waited a few seconds before interrupting. This reaction too was likely practiced in advance. The delay made him look more measured.
I did appreciate the fact that the majority and minority each had forty-five minutes of interrupted time to pose questions. The five-minute rule, in which majority and minority members alternate, is vey disruptive. I would hope the Senate Judiciary Committee adopts a similar format for Supreme Court confirmation hearings: let knowledgeable counsel ask questions of the nominee for an extended period of time
On Monday, I will attend oral arguments at the D.C. Circuit in Blumenthal v. Trump, one of three pending Emoluments Clause hearings. I will try to head over to the House to catch some of the hearing, if possible.