If you are new to presidential impeachments, or to congressional hearings in general, and you watched the two-week show the House Intelligence Committee held under the stern baton of Adam Schiff this month, you may be wondering if the upcoming Judiciary Committee impeachment hearings presided over by Jerrold Nadler will be different in any material respect.
The short answer is “Nobody knows for sure.” The resolution passed by the House laying out procedures for the impeachment process was quite general and basically dictated the order in which various committees would operate (with Judiciary being the final stop before a likely vote on articles of impeachment against Donald Trump). And the committee’s disclosures of procedures have mainly dwelled on the opportunities being given to (and likely rejected by) the president and/or his counsel to appear at the hearings and call and examine witnesses.
We do know that Judiciary will begin with at least one day of hearings, on December 4, outlining the constitutional grounds for impeachment, which will aim at explaining such terms of art as “high crimes and misdemeanors.” You can expect a parade of constitutional-law professors, with those called by Democrats emphasizing Congress’s latitude in determining the level of presidential misconduct necessary to trigger impeachment, and those called by Republicans stressing the rare and perilous nature of the entire process.
Politico explains how this first hearing is likely to fit into Nadler’s overall plan:
If Nadler follows the model of the Clinton impeachment — which he opposed in 1998 — Judiciary will begin with a public hearing on the definition of an impeachable offense [that’s what’s already been announced].
The second set of hearings would entail Schiff and other chairmen presenting their findings formally to the Judiciary Committee, with the overwhelming bulk of that material coming from the Intelligence panel’s review of the Ukraine scandal. The Intelligence Committee deposed 17 witnesses behind closed-doors and heard dozens of hours of public testimony as they collected evidence that Trump abused his power and pressured a foreign ally to investigate his Democratic rivals.
A third phase could allow the White House and Trump to present exculpatory evidence and call witnesses. And a fourth — and final — phase would be the consideration of articles themselves before the panel sends them to the House floor.
It’s unclear whether that “third phase” will happen. In a letter dated Friday, Nadler asked President Trump to “please provide the Committee notice of whether your counsel intends to participate, specifying which of the privileges your counsel seeks to exercise, no later than 5:00 p.m. on December 6, 2019.” He also wrote to the Judiciary Committee’s top Republican, Doug Collins, setting the same deadline for him to “issue any subpoenas or interrogatories” necessary to the investigation. If the White House maintains its current posture of non-cooperation with an “unconstitutional” and “partisan” impeachment process — an argument that has been central to its efforts to keep current and former administration officials from testifying in the House — it would seem unlikely that Trump will send attorneys to plead his case before the Judiciary Committee. It could certainly let Republicans on the committee carry his water, though taking advantage of Nadler’s offer might significantly expand the amount of time available to Team Trump to badger or call witnesses, present whataboutist counter-scandal arguments like the ones Republicans on the Intelligence Committee spent so much time developing, and rant and rave about impeachment as a “coup” for the benefit of the MAGA base.
Assuming Trump decides not to play, the hearing will follow the usual House procedure of alternating (by party) questioning of witnesses in five-minute intervals to include every member of the committee, after opening statements by the chairman, the ranking member, and each witness. A draft resolution on impeachment procedures released by Nadler in September, before Nancy Pelosi decided on a full House vote on the subject, provided that “Committee staff designated by the chairman and ranking member can ask questions of witnesses for a total of one hour, equally divided across the parties (in addition to the normal questions from members).” So it would appear Nadler is contemplating letting committee counsel for each side get first shot at teasing out key points from witnesses before the committee members weigh in, which was also a prominent feature in Schiff’s hearings.
For consumers of the hearings on television, the key thing to understand is that there are 41 members of the Judiciary Committee, compared with only 23 members of the Intelligence Committee. So the hearings will be longer even if Nadler sticks to one round of questioning per witness.
Another key question is whether the tone of the hearings will improve from what we saw in the Intelligence Committee, given the gravity associated with the proximity of formal articles of impeachment. That’s not likely. No, it won’t be easy for Judiciary Republicans to match Devin Nunes’s hammer-headed invocation of right-wing conspiracy theories or the contempt he showed for Schiff (who reciprocated). But two of the most combative Intelligence Committee Republicans, Jim Jordan and John Ratcliffe, are also on Judiciary and will get to keep up their barrage of insults toward Democrats and their witnesses. For comic relief, Judiciary includes the grand old troglodyte of the far-right fringe, Louis Gohmert. Another especially wild Trump fan, Matt Goetz, will also be present.
Each day of the hearings, then, will be long and exhausting. The overall timetable is reasonably clear: to consider and report articles of impeachment with time enough for the full House to debate and enact them before Christmas. That is a very narrow three-week window, and it’s possible the White House will decide to exercise its prerogatives to participate in the hearings strictly in order to screw up the timing. The limited time available could also help convince Nadler and Pelosi to limit the scope of impeachment to the Ukraine scandal, with perhaps an article or two relating to the obstruction-of-justice incidents so thoroughly laid out in the Mueller report.
Nadler’s personality and style may also affect how the hearings come across, and where they ultimately lead, as Todd Purdum has noted:
If Schiff is a cool television presence, a slim 59-year-old triathlete who speaks in modulated, extemporaneous sound bites, Nadler, 72, is a hotter, blunter personality. His default mode is a wised-up Big Apple belligerence, and he speaks in a nasal New York accent that summons memories of George Costanza.
But Nadler is also a veteran legislator with a very good mind who will likely view these hearings as the capstone of his long career. In the endless drama of the Trump era, he will now have his chance for a star turn.