November 30, 2019

So where are we now with the impeachment proceedings against Trump?

I’ve written about impeachment at length on Facebook earlier in this series if you want a deep dive into how this works, but there are a few things to keep in mind. The United States Constitution, the fundamental law on which our nation rests, lays out how impeachment of a president works.

It establishes that the House of Representatives alone has the power of impeachment. It can run the process of impeaching a president however it wishes, no matter how much the president (or anyone else) complains. Generally, the House investigates the offenses of which the president is accused-- it is important to remember that those offenses do not have to be actual criminal offenses (although they usually are). The Constitution lays them out as “Treason, Bribery, or other high Crimes and Misdemeanors,” but it does not define high crimes and misdemeanors. (It would be entirely reasonable to impeach a president who played video games all day and refused to do any work, for example, even though it is not illegal to play video games all day.)

At this investigatory stage, the president does not participate because it is still a matter within the House. Once the investigation is complete, either the House drops the matter (as it has done on a few occasions) or it hands the issue over to a committee—generally the Judiciary Committee—to prepare articles of impeachment. Once the committee has done so, those articles go before the House, which votes on whether or not its members think the president has committed the offenses outlined in the articles. Generally, in the past, some articles have passed and some have not. Then, if and when the House has voted to impeach a president by a simple majority vote, the matter goes to the Senate.

The Senate then holds a trial in which Senators act as a jury to decide whether or not the president has committed the offenses of which the House has accused him. The Chief Justice of the Supreme Court-- in this case, Chief Justice John Roberts, appointed by President George W. Bush-- presides over the trial, generally deciding procedural questions (although his decisions can be overturned by two-thirds of the Senate).

At this point, the president is expected to mount a defense. He has legal counsel and can call and cross-examine witnesses. Both presidents who have been impeached—Andrew Johnson and Bill Clinton—have won at this stage, beating back the accusations against them (although in Johnson’s case there was a lot more going on than just his own behavior). Richard Nixon resigned rather than have his case go to the Senate after senators from his own party warned him that he would be convicted.

Two-thirds of senators must vote to convict. Today, that means 67 senators.

In the case of Donald Trump, we are still close to the beginning of the impeachment process, the part where the House investigates the president’s behavior.

After the Ukraine scandal blew up in September, House Speaker Nancy Pelosi put the House Intelligence Committee in charge of holding hearings to try to figure out what had gone on in the White House and Ukraine in summer 2019, as Trump withheld $400 million Congress had approved to help Ukraine in its war against Russia until Ukraine president Volodymyr Zelensky announced an investigation into Hunter Biden, the son of Joe Biden, who was a leading contender for the Democratic presidential nomination.

Under chairman Adam Schiff, the committee has held hearings, both private and public, and they have turned up damning information. Witnesses have claimed that the president and his personal lawyer, Rudy Giuliani, together with acting White House Chief of Staff Mick Mulvaney, Ukraine envoy Kurt Volker, Ambassador to the European Union Gordon Sondland, and Energy Secretary Rick Perry, ran a shadow foreign policy toward Ukraine with the goal of rigging the 2020 election for Trump.

Throughout the hearings, Trump and his supporters have attacked the Democrats and the impeachment process, rather than defending the president. They insist they are being shut out of the process, and that the impeachment inquiry is therefore illegitimate. In fact, Republicans on the main committees investigating impeachment have had as much access to the hearings and to questioning witnesses as Democrats have, but they often chose not to attend. Nonetheless, a key aspect of their public opposition to impeachment has been their insistence that they are being excluded from it.

The Intelligence Committee is now pulling together a report of its findings, which will give Schiff the opportunity to lay out what he has called "'a months-long effort in which President Trump again sought foreign interference in our elections for his personal and political benefit at the expense of our national interest,'" and to show that Trump has engaged in "an unprecedented campaign of obstruction in an effort to prevent the Committees from obtaining documentary evidence and testimony." They are preparing to give the report to the House Committee on the Judiciary, chaired by Jerrold Nadler (D-NY), which has been itself looking into whether or not Trump had obstructed justice as laid out in the Mueller Report. The committee will hold its own hearings as it starts the process of writing articles of impeachment.

On Friday, November 29, Nadler wrote to Trump in advance of the first committee hearing on Wednesday, December 4. Nadler reminded the president that the House rules for impeachment passed at the end of October allowed for Trump and his counsel to request witnesses, attend committee hearings, and question those testifying. He asked Trump if he and his lawyers plan to participate in the impeachment proceedings and gave him until 5:00 on December 6 to inform Nadler of his decision. “The President has a choice to make,” Nadler said. “He can take this opportunity to be represented in the impeachment hearings, or he can stop complaining about the process. I hope that he chooses to participate in the inquiry, directly or through counsel, as other Presidents have done before him.”

This raises a quandary for Trump. Does he send his lawyers to defend him, or does he continue to insist the whole process is illegitimate? Trump has said in public that he would “love” to have Mulvaney and Secretary of State Mike Pompeo testify, and would “strongly consider” testifying himself (he won’t, by the way-- his lawyers would never let him). And the idea that he is being railroaded will be harder to sell if he has publicly rejected the chance to be part of the process. But it’s hard to see what he will gain by participating, since there seems to be so very little evidence that he did not withhold aid to pressure Zelensky into doing what Trump needed, which is damning. My guess is that he will continue to refuse to participate, and continue to rail against the process, hoping that most people will miss that he is rejecting a chance to participate in it.

Interestingly, Nadler has chosen to start the Judiciary Committee hearings with legal scholars exploring the “Constitutional Grounds for Presidential Impeachment.” As part of their attack on process, Republicans have insisted that impeachment is unconstitutional; it is, they argue, simply a way for Democrats to overrule the 2016 election. Nadler is taking that issue head on, pointing out that impeachment could not be more constitutional. Far from being an illegitimate attempt to nullify an election, impeachment is outlined in the Constitution itself as a remedy for a dangerous president.