The House Intelligence Committee brought impeachment onto the public stage over the past two weeks. But now Congress has scattered for Thanksgiving, cable news is picking over the remnants of the hearings in search of content, the president is fuming, and impeachment has moved into a murky new phase, the parameters of which are not entirely clear.
So what happens next?
The public hearings lurched from physical comedy to riveting seriousness to bleak warnings about the corrosive effects of conspiracy theories on American democracy. The hearings provided new information—including the extent to which the Ukrainian government suspected a possible extortion attempt by the United States early on in President Donald Trump’s pressure campaign, along with the phone call between Trump and Ambassador Gordon Sondland in which Trump personally asked whether he was going to get his “investigations.”
But the public proceedings largely dramatized the story that we already knew about Trump’s coercive efforts with respect to Ukraine. Witness after witness made it obvious: The president was attempting to force Ukraine to announce sham investigations that would benefit Trump politically, in exchange for a White House visit and hundreds of millions of dollars of military aid. There were a lot of witnesses. They were credible. And they were, individually and collectively, damning.
There are more key witnesses, those who didn’t show up: former National Security Adviser John Bolton and Acting White House Chief of Staff Mick Mulvaney, for example, both of whom would seem to have a great deal to say about the effort to shake down the Ukrainians but who have so far refused to play ball with House investigators. Mulvaney has defied a House subpoena; Bolton, after some hemming and hawing, seems to have settled on a strategy of coyly hinting at the damaging stories he has to tell while promoting his upcoming book on Twitter. Assuming these witnesses don’t roll out of bed next week and decide to testify after all, we are probably nearly done with the House’s evidence-gathering phase of the impeachment inquiry and moving into a more evaluative phase.
What can we expect that to look like?
The first step is for Intelligence Committee Chairman Adam Schiff to figure out how he wants to refer the impressive quantity of testimony he has amassed to the Judiciary Committee, which is responsible for writing any articles of impeachment.
Under the resolution on impeachment passed by the House of Representatives in late October, the Intelligence Committee takes the lead on the investigative stage of the impeachment proceedings—which is why the hearings so far have taken place under Schiff’s lead. It’s now Schiff’s job to “set … forth [the committee’s] findings and any recommendations and appending any information and materials,” which he must prepare alongside the chairs of the House Committee on Foreign Affairs and the Committee on Oversight and Reform. (These other committees have played a less public role in the inquiry so far, but have participated in the closed depositions of witnesses and the issuing of subpoenas.) That report will then go to the House Judiciary Committee, which has the task of drafting articles of impeachment to submit to the full House for a vote.
The work of producing this report could be as crude as schlepping a pile of transcripts from the office of one committee to that of another, supplementing it with minimal commentary. But Schiff will likely want to do some kind of shaping of the record before putting it in the hands of Judiciary Committee Chairman Jerry Nadler. Just as Independent Counsel Ken Starr crafted the Starr Report, documenting President Bill Clinton’s misconduct, Schiff would be well advised to distill out of the material he has amassed some kind of narrative account of what happened and what it all means.
Controversial though it is, the narrative section of the Starr Report is actually not a bad model; it is both readable and rigorous. While Starr’s report received a great deal of criticism for being salacious and overly detailed, and many people believed the offenses it described did not amount to impeachment-worthy material, nobody has ever made a serious argument that the facts Starr recounted in it were untrue. It’s also a bit of a page-turner. Schiff does not have a lot of time, but creating a compelling referral to the Judiciary Committee that tells the story in a rigorous way is the first key step.
Once the Judiciary Committee has what we might call the Schiff Report, however, it is by no means limited to that material in shaping articles of impeachment. The House resolution specifically provides for the Judiciary Committee to undertake its own investigative work, conducting hearings and issuing subpoenas as needed. So the next big questions will be how much Nadler wants to stick to the Ukraine scandal—which, presumably, Schiff’s production will focus on—and how much he wants to branch out into other areas.
The obvious candidate here is Trump’s conduct as described in Special Counsel Robert Mueller’s report: In fact, House General Counsel Douglas Letter indicated to a federal court just last week that, as part of its impeachment probe, the House is investigating whether Trump lied to Mueller. And a federal district judge has said that she will rule today on whether the Judiciary Committee will be able to compel testimony from former White House Counsel Don McGahn regarding events set out in Mueller’s report.
The challenge for Nadler will be to prevent mission creep. Trump’s behavior over the course of his presidency is such that there is actually no shortage of impeachable offenses from which Nadler can choose. What about Trump’s alleged repeated offers of pardons to border officials in exchange for breaking immigration and asylum law—behavior that, if confirmed, would almost certainly violate the president’s constitutional obligation to “take care that the laws be faithfully executed”? What about the thousands of young children separated from their parents at the border? What about emoluments? What about the illicit payments to the adult-film star Stormy Daniels—which resulted in a guilty plea by Trump’s former lawyer Michael Cohen—and, for that matter, what about the allegations of sexual harassment and rape against the president?
The contours of what fulfills the constitutional definition of “high crimes and misdemeanors” for which a president can be impeached are open to argument. Time also presents a pressing question. How quickly does the Judiciary Committee want to move, and how narrowly does it want to focus in order to keep things speeding forward? How much does it want to expose itself to charges of making impeachable offenses out of policy differences or out of relatively small matters?
Once the articles of impeachment are drafted, it’s time to vote—first in the Judiciary Committee and then on the House floor. These votes may play a key role in the process of winnowing the articles. If Nadler successfully does the winnowing himself and persuades Democrats to keep the articles narrowly focused on the Ukraine matter, perhaps with some material from the Mueller investigation included as well, we could be looking at a small number of party-line votes, in which Democrats pass and Republicans object to just two or three articles of impeachment.
The other possibility is that Nadler could use this process as his means of establishing the limiting principles. During the Clinton impeachment, the House actually voted on four articles, passing only two. Allowing a relatively open article-drafting process has the dual benefits of letting Democrats submit to judgment a wider range of Trump’s misdeeds and also potentially reducing the partisanship of the affair. If some members want to vote on articles of impeachment on payments to Daniels, a few Democrats might team up with the Republicans to kill them, either in committee or on the floor—thereby establishing that the House majority isn’t hell-bent on impeaching Trump for anything and everything.
But this strategy also has a big risk—that of letting impeachment spin out of control. What if Democrats end up finding it hard to vote against articles and thus end up sending a raft of them over to the Senate? The task of the House, which has to present its case against Trump before the senators, becomes substantially more difficult if the articles involve diverse charges, arguable facts, or matters the president’s defenders can reasonably cast as legitimate exercises of the presidency’s broad powers.
Things get even murkier when the articles—whatever they end up including—land in the Senate chamber. The Senate’s rules for impeachment trials are an odd combination of the highly specific and the maddeningly vague. On the one hand, they specify the precise time of day the impeachment trial shall go into session the day after the House members appointed to manage the trial march into the Senate chamber and present the articles the House has passed (1:00 pm, in case you were wondering—unless it’s a Sunday). On the other hand, they don’t specify rules of evidence, leaving almost everything of substance initially to the judgment of Chief Justice John Roberts and ultimately to the judgment of 51 members of the body, the vote required to overrule Roberts on a wide variety of motions.
In other words, the course of the Senate trial will ultimately depend on two variables that are, at this stage, mysterious. The first is how Roberts understands his own role as the trial’s presiding officer. The rules permit the chief justice to be—if he chooses—quite activist in ruling on evidentiary motions and the like, subject to being overturned by a vote of the Senate itself. The rules also permit him to be—if he chooses—quite passive; he’s entitled simply to submit such matters to the vote of the body itself in the first instance. So one key question is what role Roberts himself thinks he should play.
The other question is whether Republicans will be as disciplined in the Senate as they have been in the House in opposing Democratic actions, or whether a small number of defectors will give Democrats the 51 votes they will need to prevail on evidentiary disputes—either if Roberts’s rulings are challenged or if he submits questions to the judgment of the Senate. In other words, if the initial question is the personality and attitudes of the chief justice, the ultimate question is which side has the votes to carry motions.
A lot turns on these issues: Depending on the answers, one can imagine a Senate trial in which Mulvaney and Bolton would have to testify and executive-privilege claims would be unsustainable. One can also imagine a trial that would be short and, for Democrats, deeply frustrating.
Only one question is not clouded by uncertainty: the outcome. Barring some kind of an act of God, enough Republicans will ultimately vote to acquit the president that Trump will survive his trial. If that wasn’t clear before, it became painfully so once Representative Will Hurd, a moderate Republican of the sort who might once have been counted on to recognize a gross abuse of power when he saw it, indicated that he had found no evidence of impeachable offenses in the Ukraine hearings. So the question is just how rigidly partisan the vote to acquit will become in the Senate, or whether a few Republicans—one might look to Mitt Romney, Susan Collins, Lisa Murkowski, and perhaps a few facing tough reelection fights in the fall—will vote against the president. The nation is thus headed toward the odd spectacle of a trial whose result everyone knows in advance, yet whose trajectory remains obscure.
In the absence of any prospect of a sufficient bloc of Republicans voting to remove the president, it’s easy to write off the impeachment process as meaningless. It’s not. Done properly, the House’s amassing of a record and the Senate’s trial of the president will create a vivid account of Trump’s abuses of power and criminality on the national stage. It will force Republicans to shackle themselves to those abuses in support of the president. The stakes of whether a majority of voting Americans will vote for a party that has done so—or at least a majority in the states necessary to swing the Electoral College—are high. But a Senate trial of the president will pose the matter to the electorate with the starkness it deserves.
It will make Senate Republicans cast a vote for the proposition “LOL nothing matters ¯\_(ツ)_/¯”—thereby enabling the 2020 electorate to evaluate nihilism as the governing philosophy of a political movement.
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