Sorry Republicans, the Impeachment Inquiry is Constitutional and in Line With Precedent

“We know what a constitutionally serious impeachment process would [look] like; we saw that happen both with President Nixon and with President Clinton. This is not that. This is not a search for the truth. This is not a situation where you’ve got the majority, the Democrats, who are upholding their constitutional duty and trying to get to the truth.”

— Rep. Liz Cheney (R-Wyo.), speaking to reporters, Oct. 22

The Constitution says very little about Impeachment, but the one thing it is clear about is that the House has the power to impeach. Crucially, nowhere in the Constitution, nor anywhere in the Federalist papers, are the procedures for how the House should conduct an impeachment inquiry laid out. There are of course precedents for impeachment, although the House is not obligated to recognize them. Because there are no clearly defined laws that the House must follow other than possibly these precedents from previous impeachments, which are closer to guidelines and conventions than hard and fast rules or laws, the House has wide leeway to structure the impeachment proceedings in a way they see fit. Of course, the Republicans have called the impeachment investigation unconstitutional, unfair, and out of line with past precedents. But despite what the Republicans claim, the House is exercising its prerogative perfectly in line with its powers as designated by the Constitution and the precedents surrounding impeachment, and their resolution will allow the impeachment proceedings to continue in this proper way. Therefore, the Republicans’ criticisms are invalid.

First, take a look at how little the Constitution actually says about the House and impeachment:

Article 1, section 2, clause 5: The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.

That’s it. The Constitution gives the House of Representatives “the sole Power of Impeachment,” and then makes no further mention of the House’s role in impeachment inquiries. It does not say anything about whether the House should observe the role that due process plays in other trials. It grants the president no right to have himself, his lawyers, or other agents participate in the impeachment proceedings. It especially does not give the president the right to confront his accuser, as the Republicans have complained. These facts should put to rest any complaints that the proceedings are unconstitutional.

With the constitutional question out of the way, let’s move on to the question of precedents. Of course, the Republicans do not think that the proceedings have been in line with precedents up to this point. Their main criticism is that, as Rep. Cheney alleges, the current impeachment proceedings do not follow the same timeline as the Nixon and Clinton impeachments.

Specifically, the question at hand has to do with the period before the House formally begins an “impeachment investigation” when the House, according to precedent, may gather information and research charges in closed-door sessions and out of public view. This is the period that Democrats have considered themselves to be in thus far, and they are calling it the “impeachment inquiry.” Once the inquiry stage is over, and the House has decided that it has enough evidence to warrant an “impeachment investigation,” they will vote to commence the investigation and then all further impeachment proceedings will be conducted by the House Judiciary Committee and be available to the public. This is the period that the Democrats say they are entering next, following today’s vote. All of this is ostensibly in line with precedent.

The Republicans, however, believe that the impeachment inquiry ended when Nancy Pelosi announced that the House would pursue impeachment. They claim that, from that point forward, the House impeachment investigations had begun. This is the basis for their claims that the impeachment proceedings have been unfair and in violation of precedents. So let’s take a look at what Pelosi actually said:

“Therefore today, I'm announcing the House of Representatives moving forward with an official impeachment inquiry. I am directing our six committees to proceed with their investigations under that umbrella of impeachment inquiry.”

She clearly said that the Democrats were entering into the period of “impeachment inquiry”, and not “impeachment investigation” as the Republicans allege. This is entirely in line with precedent, as the Congressional Research Service says, “In the past, House committees, under their general investigatory authority, have sometimes sought information and researched charges against officers prior to the adoption of a resolution to authorize an impeachment investigation.”

This period of inquiry occurred during both the Nixon and Clinton impeachments. The Republicans have no basis for their complaints.

Several additional considerations drive the final nails into the coffin. First, the previous two impeachments followed long periods of investigations by special prosecutors and others. Only after these long investigations did the House begin the inquiry period. The fact that this impeachment proceeding is not supported by such a lengthy investigation prior to the start of the inquiry means that the inquiry period is all the more important. Second, the guidelines of the inquiry were written under a bipartisan panel led by John Boehner, the previous Republican Speaker Of The House, in 2015. Therefore, if the Republicans do not like the current proceedings, they have only themselves to blame. Finally, even if the Republicans wish to still disagree with all of this, the ultimate truth remains: the House can run the proceedings however they see fit, guidelines and precedents or not. The Constitution is clear on this point — even if partisan actors are not.

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