In declaring the initiation of a formal impeachment inquiry against President Donald Trump, Speaker Nancy Pelosi was solemn: “We’re not here to call bluffs. We’re here to find the truth, to uphold the Constitution of the United States. This is not a game for us; this is deadly serious.”
In the weeks since, she has upheld that intention: Three different committees of the House of Representatives, with their Republican and Democratic members in attendance, have called a series of witnesses, who have all confirmed the whistle-blower’s report that Trump had improperly solicited foreign intervention on his behalf in the 2020 presidential election. And now the House has formally approved an impeachment resolution affirming all the steps the Democrats have taken thus far in the investigation and setting out the roadmap for the rest of the inquiry, which will include the additional measure of holding public hearings.
The seriousness and circumspection of this process stands in marked contrast to the president’s attacks on it. He and his defenders have declared the inquiry not just a “sham” but a “coup.” Some Republican commentators called Lieutenant Colonel Alexander Vindman, the National Security Council’s top expert on Ukraine, who testified before the committees in closed-door sessions, guilty of “espionage.” Several members of Congress, who had been attending closed-door hearings investigating Trump’s actions regarding Ukraine, protested publicly against those hearings as “Soviet”-style star chambers. And even though he and Republicans in Congress had repeatedly asked for a formal impeachment authorization, the president greeted the news of the resolution’s passage by declaring, “The Greatest Witch Hunt In American History!” Once again, Republicans have moved the goal posts in their quest to defend the president’s conduct as perfectly legitimate and the current hearings as anything but.
Their argument is not merely wrong but dangerous, and it seems to be gaining traction in the national conversation. I have been working on federal impeachment law for more than two decades—since I published my first book on the topic—and in that time I have been asked numerous questions about impeachment, typically about the scope of impeachable offenses. But I have never heard assertions like those being made today on the president’s behalf, which question the legitimacy of the process itself and the Constitution’s constraints on presidential power.
To appreciate how unusual the claims of the president, his lawyers, and his allies in Congress are, it is helpful to know one thing—that the law of impeachment and the rules of the House are clear and indisputable: The Constitution provides that the House has “the sole power of impeachment,” and Article I provides further that the House and the Senate each have the power to determine their own rules of internal governance.
That is all one needs to know to understand why the impeachment inquiry thus far has been fully legitimate—because the Constitution leaves it to the House alone to determine how to initiate and conduct an impeachment inquiry. These are the same rules that the Republicans put into place when they last commanded a majority in the House. Trey Gowdy, a former Republican member of Congress, has said he agrees “100 percent with” the Democrats’ use of closed-door hearings, with Republican members present, to protect the integrity and credibility of its fact-finding. Gowdy should know, since he followed the exact same rules, including using closed-door hearings, when his committee investigated the 2012 attack in Benghazi. No Republican complained then.
Thus, in their efforts to trash the impeachment inquiry, the president and his defenders are trashing the Constitution along with it. In response to the House’s initial investigations of possible impeachable misconduct, Trump has called the House’s actions “partisan,” “unfounded,” a “Witch Hunt,” “stone cold Crooked,” and “presidential harassment.” His White House counsel, in an astonishing letter addressed to the speaker and the heads of the three committees investigating the president, went even further, denouncing the investigations as “constitutionally illegitimate” and an effort “to overturn the results of the 2016 election.” These attacks no doubt resonate with the party faithful, but they are completely devoid of any credible analysis of either the rules or the Constitution, which could not be clearer in vesting the House alone with the power to conduct impeachments and providing no role whatsoever for the president.
Yet, in the president’s world, the Constitution gives him “the right to do whatever I want as president.” That is not what the Constitution allows. All powers, even those of the president, are limited and subject to checks and balances to ensure their proper and legal exercise. There is no law that requires blindly following a president and assisting in a cover-up (for example, by editing and storing the transcript of a phone call on the nation’s most secret server, which is meant only for the most sensitive national-security data). And there is no privilege that bars any official from disclosing evidence about criminal activities and abuses of power. But there is a Constitution, which the president and all his people swore to uphold, and which places limits on the presidency. There is also a law protecting the identity of whistle-blowers, one that Trump has been charged to follow but instead has been trying to break.
If you add up the nonsense that the president’s defenders have proliferated and his protestation that the Constitution allows him to do whatever he wants, their proposed result is disturbing: an executive who can shut down an impeachment inquiry and protect from disclosure anything done by anyone in the executive branch, and who is immune to criminal investigation and allowed to defy subpoenas.
This is not the president our Constitution established. He would be a king, in spite of the fact that the Founders’ generation rebelled against one. They set out to create a presidency that was accountable to Congress if the occupant abused power and breached the public’s trust. Donald Trump’s efforts to delegitimize the impeachment inquiry destroy their vision.
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