Impeachment, but Without the Moral Clarity

The House Judiciary Committee takes the first step—but also brings a vital constitutional process down to the level of political horse-trading.

Donald Trump
Brian Snyder / Reuters

On Friday, the House Judiciary Committee dropped a bombshell: The committee’s Democrats are beginning an impeachment inquiry against the president of the United States. You could be forgiven if you didn’t notice.

Members of the committee majority, led by Chairman Jerry Nadler, crowded together in front of a lectern to unveil their next steps following the testimony Wednesday of former Special Counsel Robert Mueller. What began as an announcement of high-profile lawsuits building on that testimony quickly devolved into a confused back-and-forth with reporters as Nadler and his colleagues repeatedly insisted they were not beginning impeachment proceedings before admitting that, yes, they were basically doing just that.

“Impeachment isn’t a binary thing,” argued Representative Mary Gay Scanlon, the committee’s vice chair. “What we’ve been saying, what we’ve been doing, is starting a process. We’re engaging in an investigation to see if we should recommend articles of impeachment … We started it some months ago, in some ways.”

“The committee is exercising its authority to investigate all of these scandals and to decide what to do about them, which could include articles of impeachment,” said Nadler—though he also emphasized that this wasn’t the same as an impeachment inquiry: “If an impeachment inquiry is if you’re considering only impeachment, that’s not what we’re doing.”

Then again, Representative Jamie Raskin insisted, “I’d say we are in an impeachment investigation.” And in an opinion piece published in The Atlantic Friday evening, Scanlon and three other members of the Judiciary Committee—David Cicilline, Pramila Jayapal, and Veronica Escobar—declared, “We will move forward with the impeachment process.”

Just days before, the committee’s Democratic majority had questioned Mueller with rigor and clarity, driving home the key message: Donald Trump had committed acts of obstruction of justice, they chorused, and if he had not been the president, he would have been charged with a crime. The force of their arguments was self-evident. During the press conference, though, that clarity evaporated. In shuffling toward impeachment proceedings, the Democrats are starting, however hesitantly, to take up their constitutional responsibilities in the face of what they themselves recognize as the president’s continued abuses of power. But their hesitation strips away the moral clarity in defense of the rule of law that impeachment proceedings might otherwise have offered.

The Democratic leadership in the House of Representatives has test-driven a range of arguments against the initiation of an impeachment inquiry or outright impeachment itself. At first, before the release of the Mueller report, House Speaker Nancy Pelosi insisted that Trump is “just not worth it,” worrying that impeachment would divide the country. The president “wants to be impeached so he can be exonerated by the Senate,” she later suggested. Yet at the same time, she called his actions “villainous to the Constitution.”

The muddled nature of the Democratic position was on full display following Mueller’s testimony. At a press conference after Mueller’s testimony, Pelosi declared that Trump’s actions would have resulted in indictment had he not been president, and accused him of engaging in a “cover-up”—but she did not change her view on impeachment. Standing alongside her was House Intelligence Committee Chairman Adam Schiff, who that day had accused the president of criminal conduct and “disloyalty” to his country—but who, the next morning, suggested that he had not yet reached the point of supporting impeachment, though the president’s defiance of a court order might “push [him] over the edge.”

The basic message is that the movers and shakers among the House Democrats believe the president to be a criminal who is disloyal to his country and abusive of his office, and yet somehow his conduct is not quite bad enough to justify the constitutional remedy designed to address the problem posed by such a leader. Pelosi and Schiff have both argued that impeachment proceedings are too dire a remedy to use in a situation in which the Senate would fail to convict an impeached president. But this is a separate argument, and to some extent one at cross-purposes, from their hints that Trump’s actions so far just don’t rise to a level that warrants impeachment. There may be a clear, forceful line of logic somewhere in here, but the House leadership has instead dabbled in a range of arguments while committing to none.

Friday’s House Judiciary Committee press conference flipped that dynamic on its head. The committee is moving toward impeachment proceedings—or, perhaps, has already begun them—with the same confusion that characterizes Pelosi’s opposition to it.

There is a logic behind Nadler’s approach, clarified by the stated reason for convening the press conference in the first place: The committee announced that it had filed an application for a court to unseal grand-jury material contained in, but redacted from, the Mueller report. Such material is protected by law from release under all but the rarest of circumstances. Because of a quirk in a recent court decision, the committee’s hand may well be strengthened in obtaining that material if it can claim to be engaged in an impeachment inquiry, rather than just in the normal process of congressional oversight. In this sense, a press conference establishing that the committee is considering whether to bring articles of impeachment is a necessary step in beginning this litigation.

Pelosi reportedly signed off on the language used at the committee’s press conference, suggesting that she and the Judiciary Committee may have reached some kind of compromise. Soft-pedaling an impeachment inquiry allows the committee to reap the benefits of beginning proceedings in a forum in which it’s helpful—that is, the courts—while mitigating whatever damage Democratic leadership worries those proceedings would incur in the political space. The speaker has voiced concern that “the I-word,” as Trump reportedly calls it, could backfire in the form of increased political support for the president. By fudging whether an inquiry actually exists or not, the committee might make it more difficult for that inquiry to be turned against the Democrats. Thus have Pelosi and Nadler split the baby.

But all these evasions and half measures on the part of the Judiciary Committee add up to what appears to be an absence of conviction. When Solomon suggested that the proverbial baby be cut in two, the point was that the woman who agreed did not actually care all that much about the fate of the child.

Impeachment can carry great moral force. In 1974, the constitutional scholar Charles Black described the role of Congress in impeachment proceedings as “determining finally some of the weightiest of constitutional questions”—what the Constitution means when it says that a president may be removed for “high crimes and misdemeanors,” and which actions by a president are so vile or unacceptable that the country can no longer move forward under that person’s leadership. The act of beginning an impeachment inquiry is an opportunity to consider what the United States is and what it should be or could be. It is a declaration of constitutional and historical meaning.

If Friday’s press conference was a declaration of anything, it was lost in the confusion. The trouble with bringing urgent moral questions down to the level of political horse-trading is that the urgency dissolves, and with it the sense of moral crisis that House Democrats worked so hard over the course of Mueller’s testimony to build up.

Is moral clarity too much to expect? The process of impeachment is a political judgment, assigned by the Constitution to the branch of government that is both the most politically sensitive and, with its hundreds of members, the most challenged by the problems of collective action. So if the House shuffles awkwardly in the direction of impeachment proceedings, maybe shuffling is the best it can manage. And three months after the release of the Mueller report, any movement toward seriously considering impeachment is both welcome and long overdue.

Then again, the confusion of the press conference stems in part from the sheer strangeness of the prize the Judiciary Committee has invoked impeachment in order to obtain: that is, the grand-jury material. The odds in court are uncertain, and the redacted material makes up a minuscule portion of a report that, as Democrats have emphasized again and again, is profoundly unflattering to the president. It’s hard to imagine what kind of smoking gun could be hidden behind redactions. Anyway, the evidence table is already littered with exhibit after damning exhibit. At best, the grand-jury material is like the Maltese Falcon: the desired object that has no real significance, but moves the plot forward. At worst, it’s another way for the House to kick the can on presidential accountability down the road.

In watching Trump’s rage alongside what looks like Democratic dithering, what comes to mind is an unflattering line from the poet William Butler Yeats: “The best lack all conviction, while the worst / Are full of passionate intensity.” The only hope is that the House will continue to slouch toward impeachment.