The buzz-phrase of choice in the lengthy and fractious debate among Democrats over what to do now about Trump’s serial misconduct has been “initiating impeachment proceedings.” That’s what many Democrats want to do, and a smaller but more powerful number of Democrats who happen to run the U.S. House of Representative don’t want to do, at least right now.
But as Andrew Prokop lays out in a particularly useful Vox “explainer,” there’s no required procedure for “initiating” impeachment “proceedings.” All the Constitution prescribes are a vote on Articles of Impeachment, which in turn triggers a Senate trial about the contained list of “high crimes and misdemeanors.” Everything else is, well, optional, as the last two impeachment drives illustrated:
The Nixon inquiry was an intensive, lengthy investigative effort that proceeded alongside the special prosecutor’s continuing grand jury investigation into the Watergate break-in and cover-up and a Senate select committee inquiry into the matter. The House Judiciary Committee opened it in October 1973 (after the Saturday Night Massacre), the House voted to back it in February 1974, and it lasted until July 1974. Major new revelations about the scandal kept breaking throughout that period, and eventually, the committee got to review secret information from the grand jury probe.
The Clinton inquiry, meanwhile, was essentially just a decision about whether to impeach the president based on the findings of independent counsel Ken Starr’s report (which alleged Clinton committed perjury and obstruction of justice to try to cover up his affair with Monica Lewinsky). That impeachment inquiry was officially opened in the Judiciary Committee after votes by the committee and then the whole House in October 1998. The committee held a few weeks of hearings and heard witness testimony (including from Starr), but it wasn’t really a new investigation, and it was over by mid-December.
That House Republicans decided to formally “open” a discussion of Clinton’s possible impeachment was a matter of choice. So, too, is how House Democrats do and don’t proceed against Trump. They can just at some point decide the case for impeachment is strong enough to go ahead with it, and do so, with or without the additional preliminaries that Clinton’s tormenters deployed, though no one was in doubt whatsoever where that “inquiry” was destined to conclude.
One implication of that reality is that the timeline most of us have in the back of our minds for an “impeachment inquiry” is, well, kind of made-up and artificial. No formal investigations, hearings or legislative throat-clearing are, strictly speaking, required. So House Democrats could impeach, or at least hold a vote to impeach, Donald Trump whenever they wished without much in the way of preliminaries. That might not be politically prudent, but like the decision to impeach itself, that’s a judgment, not a rule.
As Prokop further explain, some Democrats on the House Judiciary Committee are using this ambiguity to blur the distinction between impeachment “inquries,” and, well, what the Committee is already doing:
[S]ince special counsel Robert Mueller’s congressional testimony in late July, there has been a rhetorical shift from several members of the Judiciary Committee — to try to redefine their existing probe as that much-demanded impeachment inquiry.
For instance, on Friday, July 26, Nadler told reporters that, as part of a lawsuit seeking Mueller investigation records, his committee would tell a judge they’re considering whether to use “a constitutional power of the utmost gravity: recommendation of articles of impeachment….”
At that press conference, his fellow committee members went further. Rep. Mary Gay Scanlon (D-PA) characterized the committee’s probe as “an investigation to see if we should recommend articles of impeachment” — an investigation that started “months ago.”
“A lot of people believe we’ve been in an impeachment inquiry ever since we started looking into high crimes and misdemeanors,” Rep. Jamie Raskin (D-MD) said, while clarifying that his own preferred word choice was “impeachment investigation.”
Raskin also made a point that’s becoming increasingly popular among impeachment-curious Democrats — that “there’s no formal or statutory or House rule for how an impeachment inquiry is to begin.”
This argument, which basically holds that an “inquiry” is an “impeachment inquiry” if it later leads to articles of impeachment, has a convenient ex post facto quality for nervous Dems. It reminds me of C.S. Lewis nifty scenario, in his novel The Great Divorce, wherein souls in hell can ride a bus to heaven whenever they want. If they choose to stay in heaven, then that sojourn in hell was for them purgatory. Where you are is all a matter of where you wind up.
Now there are those (notably the Washington Post’s Greg Sargent) who argue that a formal launching of “impeachment proceedings” would significantly strengthen the House’s legal case in court for commanding obedience to subpoenas, since no one doubts impeachment is a constitutionally sanctioned exercise of legislative powers. But then again, in theory at least, the House could argue in court that any investigation of presidential misconduct is potentially an “impeachment proceeding” or “inquiry,” making its subpoenas a command performance no matter what ultimately happens.
In any event, earlier this week Nadler insisted that impeachment is already on the table – his own table, anyway:
Nadler said his next steps with the probe will be twofold:
In the courts, the committee is hoping for rulings on getting Mueller’s grand jury material and compelling testimony from recalcitrant witnesses by “the end of October” or “shortly thereafter.”
But he’ll also have “hearings in September and October with people not dependent on the court proceedings” — that is, witnesses who will agree to testify. Then, he said, “If we decide to report articles of impeachment, we could get to that in the late fall, perhaps — in the latter part of the year.”
And if he and his boss Nancy Pelosi determine that articles of impeachment are still a bad idea politically, then maybe the House never really walked down that path to begin with.
Now you see it. Now you don’t.