There’s a reason Republicans have been making a great fuss about the process of the impeachment inquiry over the past few days. Unwilling, or more likely unable, to mount any substantive defenses of President Donald Trump’s behavior with regard to Ukraine, members have instead assailed the way Democrats are conducting the inquiry.
You may doubt the sincerity of these complaints—more on that in a moment—but they have grabbed attention because they are intuitively persuasive. Thus far, the inquiry has taken place behind closed doors, with only opening statements and secondhand accounts of interviews reaching the public. It would be both a miscarriage of justice and political malpractice for Democrats to vote to impeach without public proceedings. The trick is that Democrats have said all along that they intend to have a public process.
On Wednesday, GOP House members staged an odd maneuver in which they occupied the room—the Sensitive Compartmented Information Facility, or SCIF, in acronym-obsessed D.C. jargon— where Deputy Assistant Secretary of Defense Laura Cooper was to be interviewed under subpoena as part of the inquiry, delaying (though not preventing) her testimony. On Thursday, Senator Lindsey Graham of South Carolina, a steadfast Trump shield, announced that he would introduce a statement criticizing the House Democratic process.
The SCIF storm was a good stunt, and it won the president’s endorsement. But it doesn’t withstand much scrutiny. The protesters claimed that as Republicans they were being squeezed out of the process, but as BuzzFeed noted, 12 of them were already authorized to participate in the process, because they’re members of committees involved in the depositions. Republicans have not been allowed to call witnesses, and it’s easy to understand why they’d feel slighted by that, but they are allowed to participate in questioning of witnesses—and have been doing so, according to The Washington Post.
Republicans complain that Democrats are offering selective leaks from the hearings, and insist that the testimony, if heard in full, would exonerate Trump. But it’s difficult to believe that, if there were exculpatory evidence being aired, Republicans wouldn’t leak it to both the public and the White House.
Democrats now say they intend to start holding public hearings as part of the impeachment inquiry in November. The public ought to be able to see the evidence they’re amassing behind closed doors, too. But they have a valid case for keeping these initial interviews private.
While there are signal differences between an impeachment and a criminal trial, the analogy is useful for understanding the process. An impeachment is like an indictment, and the House serves as a sort of grand jury. The Senate then holds a trial; senators are like jurors. (The chief justice of the United States presides over that trial.) In this analogy, the current closed-door depositions are a little like police interviews with witnesses. These aren’t held publicly, and a suspect’s lawyer doesn’t get to sit in on them. There are some good reasons for that, too: You don’t want witnesses to coordinate their stories in order to throw off investigators.
Trump’s defenders are angry that these hearings are not public and say that he should be allowed to defend himself in the process, but it’s a similar situation. In fact, Democratic members even charge that some witnesses are coordinating their accounts to avoid conflicts.
Another useful analogy is the most recent impeachment in U.S. history, that of President Bill Clinton in 1998 and 1999. House Republicans began the process after receiving a lengthy report from Independent Counsel Ken Starr. They didn’t feel they needed to conduct the preliminary interviews that are going on now, because Starr had already conducted them—in private. Republicans also complain that Democrats have not held a vote on an impeachment inquiry, and they are right that the process was different in 1998. After receiving the Starr Report, the House Judiciary Committee voted for an impeachment inquiry, followed by a full House vote. This time, the House has not carried out a full vote.
Even so, Clinton’s first chance to respond didn’t come for nearly a month, when the House sent a written questionnaire to the president. Clinton’s lawyers didn’t get to argue in person until roughly a month after that. Once the attorneys had argued, the Judiciary Committee voted on articles of impeachment, and then the full House voted on them after a public floor debate.
Speaker Nancy Pelosi continues to resist a full floor vote on the inquiry, which may (or may not) be a political liability, but is legally irrelevant. The question is whether there will be public hearings, a chance for Trump to defend himself, and a full floor vote. The last question is straightforward enough: To pass articles of impeachment, the full House has to vote.
The others are less legally clear-cut. If the president doesn’t get a chance to defend himself, that would be patently unfair. If the public doesn’t get a chance to see the debate and the evidence, that would likely be politically disastrous for Democrats; members of the caucus might very well rebel against such a process. In any case, Pelosi and her deputies have given no indication that this is what they intend—indeed, they insist otherwise.
The pious cries about precedent and due process are hypocritical coming from a White House that promised (and then failed) to fully obstruct the impeachment process. Nonetheless, Trump should get his day to defend himself—and when that day comes, he’ll have to offer something more substantive than process complaints.
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