While there is a strong Constitutional foundation for the power of impeachment and a description of the structure of impeachment proceedings in the Senate, the Constitution says basically nothing about how the House would undertake impeachment proceedings. There are however many precedents that the House will follow. The resolution voted on by the Democratic-led House of Representatives regarding the methods and processes of the impeachment hearing reveals several troubling concessions that could come back to haunt the Democrats in the future. More specifically, the resolution makes one key departure from the precedents of the past that is intended to make the process fairer and more robust. But by installing this new provision using vague language, the Democrats in the House have perhaps been more generous than they needed to be, and even more generous than is prudent given the previous conduct of the House Republicans. After all, give them an inch and they will surely take a mile.
It should be noted that most of the Democrat’s plan for the rest of the impeachment proceedings is completely in line with precedent. The president will receive copies of all evidentiary material. The president and his counsel will be invited to all hearings. The president’s counsel will be permitted to ask questions at the presentation of evidence, submit evidence on the president’s behalf, question witnesses, object to the questioning of witnesses, etc. The rules allowing the minority to call its own witnesses are essentially the same as the rules that were set during the Clinton administration.
Thankfully, the main provision that is new is the addition of the stipulation that, if the president “unlawfully” refuses to make witnesses or evidentiary material available to the investigating committees, “the chair shall have the discretion to impose appropriate remedies, including by denying specific requests by the president or his counsel under these procedures to call or question witnesses.”
That is a fantastic move that is aimed at combatting the obstructionist maneuvering that the administration has engaged in. After all, the process should serve to facilitate transparency and fairness. Allowing the president to defy subpoenas and prevent officials from testifying is neither transparent nor fair, and therefore there must be tangible consequences for engaging in such behavior. It is also important to give the chair broader control over who the president chooses as witnesses and what the minority is able to question witnesses about.
Anyone who watched the farcical hearing of Corey Lewindowski will appreciate these limitations. Mr. Lewindowsky refused to give any meaningful testimony citing some vague notion of executive privilege. He instead used the hearing to make a mockery of the proceedings and plug a possible Senate run. The rest of the House politicians also could not resist the urge to grandstand and simply used their time to make longwinded speeches about topics that were not relevant to a fact-finding mission. If the goal of finding facts crossed any of their minds, no one could tell. That tendency to grandstand and filibuster is exactly what this new house resolution seeks to control. Of course, the most illuminating portion of Lewindowski’s testimony came when the lawyer for the majority, Barry Berke, was allowed to carve up Lewindowski’s story and force him to admit several lies. That is why another provision that allows staff lawyers to ask questions before lawmakers take the stage, a reversal that will hopefully help save time and patience.
The problem with the major new provision, however, is the definition of the words “unlawfully” and “appropriate.” These are two words that are sure to cause a huge amount of controversy over the coming weeks and months. After all, the question of what is lawful, while clearly aimed at the administration’s defiance of congressional subpoenas, is an expansive term. It plays directly into the fear-mongering that the Republicans are engaging in so that they can gin up resentment toward the impeachment proceedings and cast it as unfair. Similarly, what constitutes an appropriate remedy is a matter of subjective judgment and not necessarily clear from the history of impeachment proceedings. Thus, while the Democrats have allotted themselves the required powers they need in order to take revenge on the administration’s attacks on the process, the provision itself is likely to become the focus of Republican ire and cause new problems.
Establishing the fairness and transparency of the proceedings is the correct focus for the resolution to have. That is not in dispute. It may even be clear to legal insiders what is meant by “unlawfully” and “appropriate” in this situation, but the “slipper sloper” fear mongers can use these terms to characterize the impeachment as the beginning of a new Reign of Terror that haunts the nightmares of the rightwing propagandists. Just wait for the references to the French Revolution and the dreaded Committee of Public Safety to pop up in Republican talking points. If these panicked wolf criers are effective enough, and if Trump and his crew can use this language against the House Democrats, the public opinion of the impeachment could eventually turn against the Democrats. That is a foreseeable outcome now that the Democrats have passed the resolution.
If the Democrats are prudent, they will act quickly to define or at least indicate very clearly what they mean by “unlawful” and “appropriate” in order to undercut any coming rightwing messaging about the issue. Clearly, this would mean potentially locking themselves into a specific set of actions and reactions to moves that the Trump administration may or may not make. In fact, the clarification would essentially give the administration a playbook for how to approach the impeachment proceeding with that provision in place. So there are good reasons for keeping these terms vague. But the risk of not at least clarifying how they intend this provision to be used and instead of leaving it to Fox and the rest of the rightwing media to let their imaginations run wild could be ruinous. If the Democrats allow the right to define the public’s understanding of these terms for them, they could lose control of the narrative as soon as they step outside of the public’s expectations.
At the end of the day, the Democrats did the right thing by passing the resolution. Just like the proceedings that followed the release of the Mueller Report, the impeachment inquiry was characterized by non-cooperation on the part of the Trump administration, and the House had no recourse available. Now, they do have recourse. The message to the Trump administration is this: play by the rules or you will be punished. This is only fair. The danger is in allowing the right to decide what punishments are expected by the public. The Democrats must clarify this point before moving forward, or else they risk causing more confusion instead of bringing order to the process.