What the House Decided This Week

Sean Casten is a Democrat who represents the 6th Congressional District of Illinois. He went on Twitter this week to explain what the House of Representatives did regarding impeachment:

A brief thread is in order on what we decided to do yesterday, as there seems to be some confusion about what is in [House Resolution] 660:

First, please read the bill. Rather than relying on shoddy journalists or self-interested partisans, go to the original source material: congress.gov/bill/116th-con…

On the substance, let’s first state the obvious: we did not vote to impeach the President yesterday, nor did we vote to initiate an impeachment inquiry, nor did we vote on articles of impeachment. We voted to set the rules for the next (open) phase of the process.

The question we were all asked yesterday was not whether we should move forward, but whether we agree to move forward subject to a specific set of rules.

The rules we passed were not only fair, but in some cases more generous to the President than the rules that were passed for the Nixon and Clinton processes.

There is a very important point to be noted in that prior table. The protections afforded by this process are to the President, not his political party. As is appropriate, since he is the subject of our inquiry.

This weird narrative that the minority party deserves greater protection implicitly presumes that the minority party is on trial. No one is making that argument, except perhaps for those who doth protest too much.

So it’s worth asking the question why someone would vote “no” on yesterday’s resolution. There are only three logically possible reasons:

(a) Because you want greater protections to the President in this process than has ever been granted in prior processes

(b) Because you are opposed to majoritarian democracies where the actions of a legislative body require the consent of >50% of the members, or

(c) Because you think the Congress should not inquire as to whether the President should be impeached under any circumstances

That’s the extent of the logical objections. That’s not to say that there can’t be illogical objections of course… so let’s examine some of those.

Some have suggested that the prior phase should have been open. That’s irrelevant to what we do next. History is behind us.

However, the approach taken was fully appropriate given the circumstances.

In the Clinton and Nixon cases, impeachment hearings came AFTER the [Attorney General’s] office had led closed hearings to ensure that witnesses could not coordinate their stories. Barr’s failure to do so, and his efforts to distort the Mueller report forced a different process this time.

Others have suggested that the prior process required a vote of the house. That argument is silly, and unfounded. Every committee in Congress has the right to set their own agenda, subject to the majoritarian opinion of their members.

For example, no one would argue that the Science Committee cannot hold hearings on ocean acidification prior to a full vote of the House.

In the same fashion, it makes no sense to argue that the Intel, Oversight, Judiciary, Ways & Means, Financial Services or Foreign Affairs committees cannot hold hearings subject to their jurisdiction prior to a full vote of the House.

Indeed, if we DID require a full vote of the House to approve the agenda of any committee, the House would never get anything done. Every member of Congress knows that. But some are hoping the public doesn’t. That is irresponsible.

So what happens next? We wrap up closed sessions as soon as we can, and then move into open hearings subject to these rules. We do so with open minds and no pre-determined verdict.

I am sorry – and in many ways, angry – that not a single Republican saw fit to vote in favor of these rules. Their obedience and deference to the Executive branch is an abdication of their responsibilities.

But we – and by we, I mean all of us – cannot allow their obedience to conclude that a partisan vote is bad policy.

With heavy hearts, we move forward. No member of Congress celebrates this moment. But yesterday, I’m glad to at least report that the majority of us voted not to shirk our responsibility.

Unquote. 

I don’t know about the “heavy hearts”. I assume the Congressman means he’d rather not have a president like the Toddler who so clearly deserves to be impeached and removed from office.

I also wonder how many in Congress don’t know how they will vote. There is so much evidence of corruption and abuse of power that having to make up one’s mind now would betray a lack of attention.

There should be several articles of impeachment, not limited to the Ukraine scandal, and each article should include a list of “whereas he did this” and “whereas he did that”. If they can’t come up with 20 pages of “whereas” clauses for each article, they won’t be trying.

Presenting the evidence in detail would make it harder for some of the Toddler’s supporters and some of the nation’s voters to deny the harsh reality of the situation.

A Brief But Powerful Argument For Impeachment

This is from the Twitter account of the historian and journalist Yoni Applebaum:

I want to share one strongly argued case for impeachment, from a leading constitutional scholar, that I stumbled across the other day.

“[The president’s] defenders describe the unthinkable disaster of impeachment. But it should not be unthinkable. The framers of the Constitution did not see impeachment as a doomsday scenario; they thought it necessary to remove bad men from the offices they were subverting.”

“The president’s defenders, experts at changing the subject, prefer to debate whether [he] committed a felony …. [but] ‘high crimes and misdemeanors’ are not limited to actions that are crimes under federal law.”

“It becomes clear that the White House has never before been occupied by such a reckless and narcissistic adventurer. Sociopath is not too strong a word.”

“We are regularly lectured about a constitutional crisis if the House goes forward with hearings and ultimately votes a bill of impeachment for trial in the Senate. Consider the alternative. Perhaps American presidents, by and large, have not been a distinguished lot…”

“….But if we ratify [his] behavior in office, we may expect not just lack lack of distinction in the future but aggressively dishonest, even criminal, conduct. The real calamity will not be that we removed a president from office but that we did not.”

The fire-breathing radical in question? Former U.S. Solicitor General and Supreme Court nominee [and extremely right-wing Republican] Robert Bork, in a glowing review of [neo-fascist] Ann Coulter’s “High Crimes and Misdemeanors,” published in The Wall Street Journal in 1998.

Unquote.

Bork died in 2012, so nobody can ask him if his views on impeachment have “evolved”.

Political Science Says We Should Worry

There is a story in The Washington Post today about more officials in the Toddler’s administration refusing to honor Congressional subpoenas. This isn’t normal behavior. House Democrats could hold these officials in contempt and levy fines. They could even have them arrested, although that’s a power Congress hasn’t used in a long time. So far, the Democrats have asked nicely and sometimes gone to court, but I don’t think a single contested subpoena has been enforced.

Thomas Pepinsky, a professor of government at Cornell, explains why this is a very serious matter:

For decades, Republicans and Democrats fought over the same things: whose values and policies work best for American democracy. But now, those age-old fights are changing. What was once run-of-the-mill partisan competition is being replaced by a disagreement over democracy itself.

This is particularly evident as the president and many of his allies crow about the illegitimacy of the House impeachment inquiry, calling it an attempted coup, and as the White House refuses to comply with multiple congressional subpoenas as part of the probe.

This marks a new phase in American politics. Democrats and Republicans might still disagree about policy, but they are increasingly also at odds over the very foundations of our constitutional order.

Political scientists have a term for what the United States is witnessing right now. It’s called “regime cleavage,” a division within the population marked by conflict about the foundations of the governing system itself—in the American case, our constitutional democracy. In societies facing a regime cleavage, a growing number of citizens and officials believe that norms, institutions and laws may be ignored, subverted or replaced.

And there are serious consequences: An emerging regime cleavage in the United States brought on by [the Toddler] and his defenders could signal that the American public might lose faith in the electoral process altogether or incentivize elected politicians to mount even more direct attacks on the independence of the judiciary and the separation of powers. Regime cleavages emerge only in governing systems in crisis, and our democracy is indeed in crisis.

Just look at the hardening split among the American people on impeachment: The fraction of citizens who oppose the impeachment inquiry is the same as that who approve of the president, signifying that partisan disagreement over policy has turned into a partisan divide over political legitimacy. This cleavage … is clearest in the argument that it would amount to a “coup” to remove the president via conviction in the Senate, and thus that the regular functioning of the legislative branch would be illegitimate. These divisions are over the laws that set out plainly in our Constitution how the president can be subject to sanction.

Regime cleavages are different from other political “cleavages.” Conflict between left and right, for example, over issues such as taxation and redistribution, is healthy. Other cleavages are based on identity, such as racial conflict in South Africa, or religious divides between Hindus and Muslims in India or Protestants and Catholics during the past century in the Netherlands. Identity cleavages can be dangerous, but they are common across the world’s democracies and can be endured, just so long as different groups respect the rule of law and the legitimacy of the electoral process.

Regime cleavages, by contrast, focus the electorate’s attention on the political system as a whole. Instead of seeking office to change the laws to obtain preferred policies, politicians who oppose the democratic order ignore the laws when necessary to achieve their political goals, and their supporters stand by or even endorse those means to their desired ends. Today, when [the Toddler] refuses to comply with the House impeachment inquiry, he makes plain his indifference to the Constitution and to the separation of powers. When Senate Majority Leader Mitch McConnell argues that impeachment overturns an election result, he is doing the same. In the minds of Trump, his allies and, increasingly, his supporters, it’s not just Democrats but American democracy that is the obstacle.

As Harvard political scientists Steven Levitsky and Daniel Ziblatt have argued, democracy can manage political conflict only if citizens and politicians allow the institutions of democracy—elections, representative bodies, the judiciary—to do so. Parties and politicians must not be rewarded for refusing to adhere to laws and institutions. Decades ago, a regime cleavage divided Chileans, with conservatives aligning against the elected government of Salvador Allende and eventually leading to a coup that replaced him with General Augusto Pinochet. The United States has confronted a regime cleavage, too: The last emerged in the 1850s, prior to the Civil War, when many in the slave states began to advocate secession—a clear challenge to the legitimacy of the Union.

Growing fights over executive power can mark an emerging regime cleavage in a democracy like ours….Politics becomes no longer about who delivers the best policy or who best represents voters’ ideals, but rather who can control the executive and how far they can push the limits of the rule of law.

But what distinguishes the current moment … from the normal, albeit worsening, politics of executive-legislative relations in the United States is the politicization of the very notion of executive constraint in the face of an impeachment hearing—this is the source of the regime cleavage.

American politics is not yet fully consumed by this current, emerging regime cleavage. But if it continues without a forceful, bipartisan rebuke, we can expect that politics in the United States will increasingly come to be characterized by the kinds of intractable conflicts … that have characterized presidential democracies in countries like Argentina and, more recently, Taiwan. Our regime cleavage has not yet hardened to the extent that it has in these countries, but if it does, … both sides of the regime cleavage will argue that the other is illegitimate and undemocratic. Voters, understandably, will lose what faith they have left in the value of democracy itself. In the worst-case scenario, presidents and their supporters would be entirely unaccountable to Congress, while their opponents would reject the legitimacy of the presidency altogether.

Even worse: What if [the Toddler] refuses to acknowledge defeat by a Democratic opponent in 2020? What would happen in that case? Might the president’s supporters resort to violence? Might broad segments of the [Republican Party] simply refuse to recognize an elected Democratic executive as well?

Protecting the rule of law, defending the separation of powers and restoring constitutional order to Washington increasingly seem as though they will require the impeachment, conviction and removal from office of the current president. At the very least, Americans of every political persuasion must demand that the administration take part in the impeachment proceedings, even if the Republicans in the Senate ultimately weigh partisanship over evidence in their vote. So long as the executive and legislative branches respect the procedures and powers outlined in the Constitution, we must all respect their legitimacy—regardless of the outcome. If we fail to agree on and abide by our common democratic principles, our emerging regime cleavage will harden, and the future for American democracy will be bleak.

Unquote.

One Step Forward, A Half Step Back?

A few days ago, the leading Democrat in the House of Representatives finally said the word “impeachment”. That was a big step forward. She announced that several committees will decide whether the president has committed “high crimes and misdemeanors” that fall within their jurisdiction. Now, however, it appears that House Democrats want to focus their efforts on the Ukraine scandal, possibly voting whether to impeach the president in a matter of weeks.

Brian Beutler of Crooked Media summarized the situation in two columns this week. Here is some of his commentary:

Donald Trump entered the White House uniquely vulnerable to impeachment, the owner of an opaque web of private companies who obtained the office through criminal and corrupt means. Over the next two and a half years he piled increasingly brazen offenses on to that bill of particulars, emboldened at each juncture by Congresses—one Republican, one Democrat—that were determined for different reasons not to set an impeachment process in motion.

In the days after Special Counsel Robert Mueller produced a report showing Trump encouraged and expected to benefit from a foreign attack on the 2016 election, then abused his powers of office to obstruct the ensuing investigation, one of the few Democrats who recognized that taking impeachment off the table would create an unacceptable level of moral hazard was Sen. Elizabeth Warren (D-MA). She warned, “If Donald Trump can do all that he tried to do to impede an investigation into his own wrongdoing and an attack by a foreign government,” and Congress takes no action, “then it gives license to the next president, and the next president, and the next president to do the same thing.”

The only thing her analysis missed is that Congress’s inaction also gave Donald Trump license to commit the same crimes all over again, this time with the awesome powers of the presidency at his fingertips.

And that is exactly what happened.

Members of the Trump campaign escaped indictment for cooperating with Russia’s attack on the election by the skins of their teeth. Trump himself escaped indictment for obstruction of justice only because the Justice Department prohibits its prosecutors from indicting sitting presidents. In lieu of an indictment, Mueller effectively referred Trump to Congress for impeachment, and in the face of hard evidence that he’d committed grave impeachable offenses, Congress took a pass….

It is probably no coincidence that Trump involved himself directly in the Ukraine extortion scheme the day after Mueller’s valedictory testimony to Congress, when it was clear Democratic leaders remained intractably opposed to impeachment. Had they treated the report with the seriousness it deserved, and unified their caucus behind impeachment, they might have discouraged Trump from inviting another foreign power to interfere in our election….

And it’s not as though Trump’s recent conduct is so different from his past offenses that the case for impeachment has changed dramatically. To the contrary, the arguments now prevailing are the very same ones impeachment supporters have been screaming themselves hoarse about for months—since before Democrats won back the House: That impeachment is the only way for Congress to alert the public to the seriousness of the threat Trump poses, and deny his enablers veto power over accountability; that it’s the only way to force all Republicans to vote on whether they think Trump’s crimes are acceptable; that a president who faces no consequences for law breaking will eventually discover that an election is nothing but a patchwork of laws, and begin to break them.

 

What we know today that we didn’t before hasn’t changed much either…. [The] plot to coerce Ukraine to involve itself in the 2020 election came to light before the summer. The vicissitudes of politics—a whistleblower who decided to take matters into his or her own hands; the existence of a corroborated complaint becoming public; Trump’s effort to cover it up—have made it easier for Democrats to step up now…. But Trump is only incrementally more deserving of impeachment now than he was two weeks ago. What’s changed is that the untenable nature of doing nothing has become impossible to deny. Having pulled their heads out of the sand, Democrats [could] now breathe again.

[However], as the political world processed the gravity of President Trump’s efforts to force Ukraine to interfere in the 2020 election, and to cover it up, House Democrats debated among themselves whether to limit their impeachment inquiry, then less than 24 hours old, to the issue of Ukraine, and even whether they should aim to complete the impeachment process by the end of October….

What we’ve learned should quiet the Democrats’ anxious desire to rush articles of impeachment to the Senate, because the Ukraine scandal turns out to be much larger than it appeared…. Running it all to ground will take time, and may lead us back to the other areas of corruption these Democrats had apparently hoped to sideline….

The Ukraine scandal might thus be a single thread in a web of corruption and criminality that implicates a large number Trump officials and connects back to other impeachable offenses that seem unrelated until you zoom out far enough.

It’s difficult to imagine that Democrats will have plumbed the full depths of this misconduct by late October, and that should serve as a reminder to those Democrats who, for whatever reason, instinctually want to get this all over with as quickly as possible: artificially limiting the probe will place most of Trump’s misconduct beyond the reach of accountability and provide Republicans a road map for weathering the deluge….Shutting avenues of inquiry out of the impeachment process makes no sense….

Democrats must recognize that if they rush articles of impeachment over to the Senate before the fullest-possible accounting of Trump’s corruption is complete, Republicans will likely acquit Trump as quickly as possible, and not only will the impeachment process come to an end but all regular oversight investigations of Trump’s corruption will as well. There will not be a second impeachment process; Democrats had to be browbeaten into launching this one, would be even more reluctant to launch another, and if they did Senate Republicans would shut it down with the simple argument that the House shouldn’t be allowed to commandeer the Senate into putting the president on trial over and over again.

The same House Democrats who were determined to avoid an impeachment process altogether now want to dispose of the one that’s working wonderfully as quickly as possible, and their judgment hasn’t improved much …. since they relented.

It is possible that the Ukraine matter is such a raging fire of corruption that it starves other parts of the inquiry of media oxygen, but those investigations should continue, as forcefully as possible, until they run dry.

In the unlikely event that Republicans signal a willingness to remove Trump from office, it’d be irresponsible of Democrats not to … end this emergency as quickly as possible. But short of that, their lodestar has to be maximizing the political value of the process, which includes both public hearings and a trial. Now is the time for chairs of the relevant committees to accelerate their inquiries, not dial them back, to bombard Trump with subpoenas, and enforce them aggressively, not to let their subpoena power lay fallow. Now, moreover, is the time for officials up and down the government with undisclosed knowledge of impeachable offenses to approach Congress, and for Congress to welcome them, and bring any credible allegations they make too light.

Only when that part of the process is complete should the House force the Senate into a trial. If Republicans intend to protect Trump from the penalty of removal then the only source of accountability available to Democrats is the thorough airing of his abuses—with respect to Ukraine, yes, but also with respect to his obstruction of justice, acceptance of bribes, lies, and attempts to use federal power to punish his enemies….

It’s one big story. But members of the public deserves to know all of it, and we’ll only have one chance to tell it to them.

Unquote. 

Don’t forget that the leading Democrat in the House of Representatives is very easy to email by clicking right here.

A Positive Step

It isn’t making much news, but the House Judiciary Committee finally announced their plan to hold the president accountable. They will vote on Wednesday to institute special procedures designed to investigate and publicize the president’s numerous impeachable offenses. The Washington Post has an analysis of this long-awaited development. Public hearings are supposed to begin next week. The committee chairman says they may be able to vote on articles of impeachment by the end of the year. Any articles approved by the committee will be sent to the full House of Representatives. Nobody knows what will happen after that, but this is a positive step.

Here is most of the press release the committee issued this morning:

Today, House Judiciary Committee Chairman Jerrold Nadler announced the House Judiciary Committee will consider procedures on Thursday for future hearings related to its investigation to determine whether to recommend articles of impeachment with respect to President Donald Trump….

The new procedures provide that:

  • Chairman Nadler will be able to designate full or subcommittee hearings as part of the investigation to determine whether to recommend articles of impeachment.
  • Committee counsel may question witnesses for an additional hour beyond the 5 minutes allotted to each Member of Congress on the Committee. The hour will be equally divided between the majority and the minority; thirty minutes for each side.
  • Evidence may be received in closed executive session.  This allows the Committee to protect the confidentiality of sensitive materials when necessary, such as with grand jury materials.
  • The President’s counsel may respond in writing to evidence and testimony presented to the Committee.

Chairman Nadler released the following statement:

“President Trump went to great lengths to obstruct Special Counsel Mueller’s investigation, including the President’s attempts to remove the Special Counsel and encourage witnesses to lie and to destroy or conceal evidence.  Anyone else who did this would face federal criminal prosecution.

“The Mueller report resulted in 37 criminal indictments, 7 guilty pleas, and revealed 10 possible instances where President Trump obstructed justice. At least five of which we now know to be clearly criminal. Trump’s crimes and corruption extend beyond what is detailed in the Mueller report. The President is in violation of the emoluments clauses of the Constitution as he works to enrich himself, putting the safety and security of our Nation at risk. He has dangled pardons, been involved in campaign finance violations and stonewalled Congress across the board, noting that he will defy all subpoenas.

“No one is above the law. The unprecedented corruption, coverup, and crimes by the President are under investigation by the Committee as we determine whether to recommend articles of impeachment or other Article 1 remedies.  The adoption of these additional procedures is the next step in that process and will help ensure our impeachment hearings are informative to Congress and the public, while providing the President with the ability to respond to evidence presented against him. We will not allow Trump’s continued obstruction to stop us from delivering the truth to the American people.”

It’s Not Everything But It’s Definitely Something

Today, the Judiciary Committee of the House of Representatives, the committee that had Robert Mueller testify this week, asked a federal court to turn over all of the grand jury material related to Mueller’s investigation of the president. From the committee’s petition:

Special Counsel Robert S. Mueller III’s Report on the Investigation Into Russian Interference in the 2016 Presidential Election (the Mueller Report) provided Members of Congress with substantial evidence that the President of the United States repeatedly attempted to undermine and derail a criminal investigation of the utmost importance to the nation. That investigation sought to uncover Russia’s actions to interfere with the integrity of an American presidential election. Russia engaged in these acts in order to benefit then-candidate Donald J. Trump. President Trump repeatedly denied Russia’s actions and fired the director of the Federal Bureau of Investigation (FBI), resulting in the appointment of Mr. Mueller as Special Counsel.

The Mueller Report describes detailed evidence that President Trump then sought to terminate Special Counsel Mueller and to interfere with his investigation. Because Department of Justice policies will not allow prosecution of a sitting President, the United States House of Representatives is the only institution of the Federal Government that can now hold President Trump accountable for these actions. To do so, the House must have access to all the relevant facts and consider whether to exercise its full Article I powers, including a constitutional power of the utmost gravity—approval of articles of impeachment.

Hooray!

Listening to members of the committee at their press conference today, I got the strong impression that the House Democrats are finally, finally, opening an impeachment inquiry. One of them called their actions today an “escalation”. But they denied that their only purpose is to decide whether to impeach the president. They said they might recommend something else (legislation? censure?). For that reason, and because a number of Democrats, including Speaker of the House Nancy Pelosi, are nervous about impeachment (for no good reason), the committee isn’t calling their investigation an “impeachment inquiry”. But that’s what it amounts to.

In fact, attorney Joshua Matz argues in The Washington Post that the Judiciary Committee’s investigation of the president has been an impeachment inquiry all along:

It is settled law that House committees can obtain grand jury materials as part of impeachment investigations. So the legal dispute will probably center on whether such an inquiry is underway.

The Constitution itself does not use phrases like “impeachment investigation” or “impeachment proceedings.” This has led some to mistakenly assume that the House is disregarding its impeachment power because it has not yet held a floor vote … expressly instructing the Judiciary Committee to deliberate on such articles.

But to those who specialize in these matters, that all-or-nothing vision of the impeachment power is mistaken. The Constitution’s text and structure — supported by judicial precedent and prior practice — show that impeachment is a process, not a single vote. And that process virtually always begins with an impeachment investigation in the judiciary committee, which is already occurring….

Mr. Matz then describes several cases in which the Judiciary Committee has already cited their authority to impeach the president. For example, on June 6th, when the Attorney General was charged with contempt of Congress, the committee said it wanted an unredacted Mueller report because it was deciding whether “to approve articles of impeachment with respect to the President or any other Administration official”. Twice more in June, the committee repeated that it required information in order to decide “whether to recommend ‘articles of impeachment'” for the president.

While these events unfolded at the committee level, the House approved H. Res. 430 [on June 11th], a resolution stating that the committee “has any and all necessary authority under Article I of the Constitution” to seek key grand jury material and compel … testimony. Given that Article I enumerates the “legislative Powers,” including the “sole Power of impeachment,” the message wasn’t subtle. And it was bolstered by a report accompanying H. Res. 430, which cites the Judiciary Committee’s contempt referral for [the Attorney General] as an example of using “all necessary authority under Article I” — adding that the committee is investigating “whether to recommend articles of impeachment with respect to the President or any other administration official.”

None of these references to impeachment received much publicity at the time. But Mr. Matz says they show that the Judiciary Committee has been investigating the grounds for impeachment at least since June. He also says there is only one conclusion:

The committee is engaged in impeachment proceedings and is entitled to access the grand jury material that it has requested.

In addition, four members of the committee published a brief article for The Atlantic today that says they will broaden their investigations to include “conflicts of interest and financial misconduct”, of which there is plenty to investigate.

So the I-word is finally out in the open. Does this mean the Judiciary Committee will move ahead forcefully and efficiently and that their investigation into Trump’s malfeasance will receive the appropriate level of media attention? That isn’t clear yet, but the fact that they’re no longer avoiding the term “impeachment” almost makes one giddy. From a year ago: