As the Democratic leadership of the House of Representatives guides the debate over articles of impeachment, they must be haunted by the litigator’s truism: when you move to a less favorable forum you greatly increase the difficulties of making your case. The question is whether this realization—and the others outlined below—will be sufficient to give the leadership pause. It should.
The Current Trajectory
Several aspects of the recent round of hearings are now clear. Much of the country was either disengaged or unmoved by the testimony, which is no criticism of the courageous public servants who came forward. Much of the country sees those hearings as a partisan drive by a competitive branch of government determined to press a case, however second-hand the facts are, against the president. These points have not escaped the Republican opponents of impeachment. They now look forward to a brisk trial in the Senate that formally presents a summary of the evidence produced thus far, an acquittal along party lines, and little ultimate change in the divisions that beset our country.
For once the action moves to the Senate, the skill and authority of the majority leader will take over and the rules he will impose—needing only a simple majority vote to adopt and enforce them—will shut off further embarrassments to the White House. The proposal by Senator Chuck Schumer to summon witnesses thus far withheld by the administration is unlikely to survive a confrontation with this reality.
It doesn’t have to be this way.
A Different Path: Pause and Gather Power
The House could immediately vote for subpoenas for testimony, and subpoenas duces tecum for documents, from the Cabinet level officials and former officials who are likeliest to possess first-hand knowledge of the president’s actions and state of mind. That includes the same witnesses Schumer identified in his letter. The refusal of these current and former officials to comply with such demands can be taken to the federal courts in the District of Columbia. That Congress has power to enforce its subpoenas is clear (see the exhaustive treatment in the Cornell Law Review, Congress’s (Limited) Power to Defend Itself in Court by Grove and Devins). A clear federal statute (28 U.S.C. 1361) confers mandamus jurisdiction to compel officials to comply for which Rule 81(b) of the Federal Rules of Civil Procedure supplies procedures.
Even if the district court were to slow walk the proceedings, there is good reason to believe that the DC Circuit Court would entertain an expedited appeal. If the President thinks the conservative majority of the U.S. Supreme Court will protect him and overrule U.S. v. Nixon’s recognition of a sharply qualified privilege of executive immunity, he has been sadly misinformed. Whatever the parameters of executive privilege are after the Nixon case, they do not support absolute immunity from testimony before Congress. Moreover, the constitutional investigative powers of the House are at their zenith in an impeachment inquiry following the adoption of a resolution authorizing such investigations like the one passed in November, and thus Congress’ chances of success in the courts are now at their highest.
Resort to the courts may take many weeks, but there is no reason it would take many months. The ultimate guidance given the parties—as in the Nixon case—can preclude endless re-litigation.
Success in getting a judicial order to produce documents and testimony is the only way to overcome the partisan impasse we currently face. The only possibility left lies in public attention, which will be substantial when Secretaries Pompeo and Perry, chiefs of staff Mulvaney and Kelly, national security adviser Bolton, White House Counsel McGahn and the president’s lawyer Giuliani are compelled to testify under oath. Some of these individuals are known to have had direct conversations with the president about Ukraine; others are knowledgeable about the president’s alleged obstructions that predate the Ukraine matter. Pausing now may afford other pieces of the story to fall into place.
What’s more, action by the courts broadens the legitimacy of the inquiry beyond the acts of one highly partisan body of one branch of the government.
Otherwise the narrative will remain stuck where it is now, with about half the country on either side. Believe me, I understand how damning the testimony we already have is, though it has not been framed in the most constitutionally powerful way in my view (but that’s a subject for another comment). I simply urge that we slow things down, go to the courts, and let the issues develop further. When we have had testimony from the senior officials who have been prevented from public questioning thus far, there will be time to vote on any articles of impeachment that emerge then. For one thing, it will be fairer to the president to have had testimony from his closest associates rather than to have simply heard from others outside his circle. As his supporters have urged, impeachment should not be rushed. And, too, the president’s defenders have criticized the House proceedings on the grounds that the courts have not been allowed to weigh in; that major witnesses have not been heard from and that too much of the evidentiary record is second-hand. The pause and litigation approach can wipe all of those criticisms away.
Some voices in the House have urged that, on the basis of the evidence thus far, the House is compelled to impeach the president now. These members are conscientiously trying to do their duty even while they recognize that the timing is not ideal.
But I wonder if they are aware of the Tyler precedent. John Tyler, a former Democrat from Virginia, was added to the Whig ticket headed by William Henry Harrison in 1839. Nevertheless, it surprised many Whigs when Tyler, having succeeded to the presidency upon the death of Harrison in 1841, vetoed two important groups of Whig legislation on policy grounds (as opposed to constitutional grounds, which had hitherto been the basis for presidential vetoes). On July 12, 1842 an impeachment resolution was introduced in the House and a House select committee was formed, headed by the former president, John Quincy Adams. Though Adams was a harsh critic of Tyler’s and appears to have been persuaded of the basis for removal of the president, he refused to press for the adoption of an impeachment resolution on the grounds that it would have been defeated in the Senate. This is the first example of an impeachment attempt against a president in our constitutional history.
I cite this precedent simply to bolster the conclusion that there is no compulsion to act. I am aware that there are complicated political matters in play and am sorely aware that I am no politician. But I take heart from the Speaker’s unswerving devotion to the proposition that impeachment is a legal rather than a political matter.
And I ask the president’s political opponents: would you rather run against a candidate who is under indictment or one who has been acquitted? Unless there is compelling evidence that has swayed the country and moved a great majority of Senators, the House need not send a bill of impeachment to the Senate. It’s better for the House and for the country to hit pause, and turn now to the courts for resolution.