Today the House of Representatives formally authorized an impeachment investigation and committed itself to opening up the proceedings to greater public scrutiny. While this is in part a political maneuver designed to muffle Republican criticism, it is also—even if incidentally—a healthy step in the direction of fundamental fairness.
During the Clinton impeachment, I advised several members of Congress and was involved in hearings held by the Constitution Subcommittee, whose jurisdiction at the time, among other things, included matters of constitutional rights and the question of what amounts to impeachable offenses. Those hearings were partisan and sometimes acrimonious. Witnesses for each side were subjected to questioning both friendly and critical, and sometimes openly hostile. But those hearings were open to the public and aired live, much as the bulk of the Watergate hearings were. Both Democrats and Republicans could and did summon witnesses. The senators and representatives with whom I consulted usually seemed genuinely interested in learning about what they could and couldn’t do within the Constitution’s impeachment constraints.
All of these things—then as now—show a sense of commitment to process that hasn’t always been so pronounced. Impeachment may seem a messy process today, but over time it has generally become more deliberative and more fair.
Imagine the following scenario: On a Monday, Congress learns that a high-up government official has offered a quid pro quo to a foreign government, asking it to interfere in domestic politics. The House of Representatives immediately refers the matter to a committee without formally authorizing an impeachment investigation. By Wednesday, the committee recommends impeachment. On Friday, without calling any witnesses, reviewing any additional evidence, or giving the official in question any formal notice or chance for a hearing, the House votes to impeach him. To top it all off, the House has not even begun to draft, much less voted on, any formal charges; in fact, it doesn’t adopt articles of impeachment for another six months.
By modern standards that is a recklessly fast and one-sided process, but it’s exactly what transpired during the very first federal impeachment. The people involved knew the Constitution well—they had helped write and ratify it, and yet what they did in that impeachment didn’t seem to trouble them.
Their target was William Blount, a senator from Tennessee and himself a former delegate to the Philadelphia Convention. Blount had conspired with the British government to raid Spanish possessions from American territory. He and his team of lawyers fought the impeachment vigorously once it moved to the Senate. Before that, during the expulsion proceedings that the Senate held simultaneously with the initial House investigation, they argued that Blount had a right to counsel and a privilege against self-incrimination. But even while making these arguments in the Senate, they ignored the summary impeachment investigation taking place in the chamber next door.
President Donald Trump’s lawyer, Pat Cipollone, has argued that the current House investigation of President Trump is partisan, secretive, deceptive, and unconstitutional, and that to be legitimate, an impeachment inquiry must follow basic rules of fundamental fairness and due process. Many Trump supporters and the president himself have echoed this view. The problem is that—as the Blount and other impeachments show—the House itself hasn’t always acted as if this were true, and even some of the people impeached have tacitly accepted the House’s position.
For one, until the impeachment of federal Judge Charles Swayne, in 1904, the House invariably drafted impeachment articles after voting to impeach, sometimes by months. During the 1800s, the preliminary impeachment investigations were frequently ex parte, without the prospective defendant even being present. When he was in attendance, although he might be able to cross-examine a witness or make a statement, he might not be allowed to offer evidence or witnesses of his own. During Reconstruction, radical Republicans seemed determined to impeach President Andrew Johnson for something—anything—no matter what it took. Ultimately they approved 11 articles of impeachment, nearly all of which hinged on Johnson’s alleged violation of a single statute that was itself likely unconstitutional. In short, for more than half of our history, impeachment investigations varied wildly regarding the rights the House extended to potential impeachment defendants. Often those rights fell far short of traditional due process.
But in the past century, the House has become more solicitous of potential defendants, and it does now have precedents built up over the course of more than a dozen impeachments. Some of the most important of those precedents date from the Watergate inquiry. By the 1900s, the Judiciary Committee had become the main body involved in impeachment inquiries; in addition to conducting investigations, the committee can recommend impeachment, prepare articles of impeachment, or advise that the investigation be discontinued.
But even now, the precedents allow considerable latitude. During Watergate, the committee formally adopted confidentiality measures, requiring members and staff to examine evidence in a secure room when the committee wasn’t holding hearings. On the other hand, the hearings themselves were public. A few months later, the House, motivated by the desire to publicize the Watergate investigation as fully as possible, authorized broadcast of those hearings. On many occasions in modern impeachment history, the ranking minority member has received authority to call witness, subject to being overruled by the chair; thus, any spirit of impartiality remains tempered by at least a degree of partisanship.
Of course, while they may be compelling in their own right, these precedents lack the force of law. A defining characteristic of a legislature is that it may reverse itself any time it wishes, unlike common-law courts, which are supposed to overrule previous decisions reluctantly and only for very good reason. Yet even for legislatures, precedents matter. Adherence to precedent, a famous speaker of the House of Commons once stated, is the only way to protect the minority from majority abuses of power. And at some point, all politicians should remember, the parties will likely, in fact almost inevitably, switch places. In other words, what goes around comes around. Ultimately, however, the only thing preventing the House from ignoring its precedents is its own sense of justice, fair play, and tradition, together with its fear of voter wrath.
The courts have never decided whether a House impeachment inquiry must follow due process, for the simple reason that nobody has ever asked them to, although since 1936, a number of impeached and convicted federal judges have challenged the Senate’s trial procedures in court. One of them, Walter L. Nixon, ultimately took his case as far as the Supreme Court. In all of these cases, the courts ultimately refused to intervene.
Although these cases focused on Senate, not House, procedures, the basis for the courts’ decisions likely applies to the House as well. Such issues are political questions, the Supreme Court has ruled, because the Constitution’s statement that the Senate has the “sole power to try all impeachments” precludes the courts’ involvement. We would probably get the same result if Trump took the House to court, because the House likewise has “the sole power of impeachment.”
In fact, arguments challenging the House’s decisions are even weaker than past attacks on the Senate’s proceedings. The Constitution requires the Senate, when hearing an impeachment, to be “on oath or affirmation,” and it uses judicial words such as judgment and conviction. No such restrictive wording applies to the House. And if we view the House investigation as a grand jury analogue—a comparison commonly made—then the courts are even more likely to let the House run things as it sees fit. Potential defendants enjoy fewer rights before grand juries than defendants receive in criminal trials.
But the courts may have left a door open. A basic part of due process is simply treating similar parties in a similar fashion, and more than once, the courts have remarked on the judicial nature of impeachment and a possible due-process requirement, including a recent statement during the Trump affair: The House Judiciary Committee is currently trying to force the Justice Department to hand over unredacted grand-jury testimony from the Mueller investigation. On October 25, siding with the committee, a federal district court cited several past decisions holding that House impeachment investigations—quite apart from actual Senate impeachment trials—are judicial in nature. And if impeachment investigations are judicial, then the courts might conceivably require that due-process standards apply.
If the president went to court during an impeachment proceeding, or after conviction, claiming that Congress had violated his procedural rights, we might well face a crisis. What if the courts declared an impeachment conviction invalid because Congress had denied the defendant due process? By then, even with an expedited review, the putative new president might have signed bills, made far-reaching diplomatic decisions, or sent troops into combat. Even if the courts upheld the impeachment’s validity, the new president would have been operating under a cloud, influencing his or her policy decisions in unpredictable ways.
The best way to avoid this danger is simple: The House should be scrupulous about extending due process to President Trump, to the point that no reasonable claim could be made that the proceeding was lacking in basic fairness. The process may never be perfected, but a commitment to fairness, to precedent, and to transparency will at the very least be the mark of a society that is trying to get things right. And that, in the end, may be the most we can do.