The other impeachment inquiry that could serve as a basis for comparison is that of Richard Nixon, whose conduct raised fundamental questions of fact that were investigated by the House for a full six months before his resignation on August 8, 1974. Crucially, those efforts, too, were shaped heavily by an outside investigator—a special prosecutor whose position was specifically created by Nixon’s attorney general Elliot Richardson as a condition of Richardson’s Senate confirmation.
Eliding how good-faith cooperation from the Justice Department and Senate have historically served as keystones for a robust House inquiry, after voting down the call for more witnesses and documents, McConnell claimed that the House had defied historical practice by rushing its impeachment. The Senate, he said, had no interest in creating a “new precedent” of pursuing witnesses “whom the House expressly chose not to pursue.”
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The logic here is telling. Conventionally, the House’s impeachment has been likened to an indictment in a criminal case—and of course, evidence not used to support an indictment can still be introduced at trial. McConnell’s claim, a conservative refrain, shows that he is operationalizing a different metaphor. As Benjamin Wittes observed recently at Lawfare, this line of argument imagines the House as a trial court and the Senate as a court of appeals. Any arguments and supporting evidence that the House fails to pursue at trial it forfeits on appeal to the Senate.
The Senate’s willingness to make good on this (re)vision of the responsibilities of and relationship between the chambers changes the game for the House going forward. That’s the thing about the impeachment playbook: It’s short, so each entry gets enormous playback. The Constitution itself says very little about how the House and Senate must conduct their proceedings, so the norms and rules set by the chambers themselves in a given impeachment are dissected for decades and become the baseline from which future impeachments are judged and future plays strategized. For this reason, even the extreme partisan rancor that suffused these proceedings probably could not have fully prepared the House, or the country, for the Senate’s decision to see no evidence and hear no witnesses.
Now everyone knows the play for a House impeachment followed by a trial in a defiant Senate. The expectation that the Senate will claim the limitations of an appellate body and not only acquit but also decline to investigate a president of its own party generates a new set of defaults for future impeachments of constitutional conscience. Where the president’s party controls the Senate, the House must be willing to go the whole nine yards and take its case to completion.
Here, that would have meant a very different proceeding than the sprint the country saw in the fall. It would mean many more months of investigation and evidentiary wrangling. It would mean fewer requests and a lot more subpoenas, followed up by contempt citations. Where the White House prevents officials from cooperating, it would mean protracted battles in the courts over the scope of executive privilege. In short, the full force of the House’s oversight tools will be brought to bear on the process in the future—and where the House is alone in its quest to unveil presidential misconduct, these tools won’t be perceived as nuclear but necessary.