Impeachment circa 2019
Impeachment. It’s on our minds, and I have thoughts about the process and how it’s playing out.
Words matter. So, let’s remember, straightaway, that impeachment represents step one in the process of removing someone from office. That’s it and that’s all!
The Constitution governs our country. And it says, concerning impeachment: The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment. See, U.S. Constitution Article 1, Section 5. There’s more, of course, about the Senate’s role as the trial court. But, for now, we’re only dealing with impeachment.
The United States Code includes no statutes which address the impeachment process. Further, the process belongs to the House of Representatives, not the White House or the courts. And there are no House rules regarding impeachment.
So, when the president’s enablers talk about the need for a formal impeachment resolution, there’s no basis in law or fact to support their position. When they demand due process rights—the right to call witnesses, respond formally to charges, etc.—they, again, make demands which nothing in law or fact supports.
If the House impeaches Donald J. Trump, he’ll get his day(s) in the Senate. He’ll get the due process the Senate gave President Clinton and, more than 150 years ago, President Johnson. And he’ll get an up or down vote on the charges proffered by the House of Representatives in the impeachment articles. (In fact, based on what we can expect from the Senate which like it’s “in the tank,” he might have an acquittal before lunch on Day One.)
The House of Representatives, going forward, must assert its authority to handle the impeachment process. No deals with the White House. No responding to demands for what the impeachment process does not require, and what has never been offered before.
As for documents and witnesses, and with respect for the judicial process, no more lawsuits. The courts don’t play any role in the impeachment process, but for the Chief Justice of the United States presiding over a Senate trial. So, leave the judges alone and let them handle what Article Three of the Constitution puts on their plates.
If Mr. Trump ignores subpoenas, draft an impeachment article which addresses obstruction of justice. If his Treasury Department ignores the law which mandates that the department deliver properly requested tax returns (and also ignores the court decisions upholding that law), add that to the obstruction of justice article and, consider impeaching the Treasury Secretary. Etc.
The courts do battles between Congress and the White House poorly. Exception? U.S. v. Nixon, 418 U.S. 613 (1974), which forced Richard Nixon to turn over the incriminating Oval Office tapes. Now, however, the House has more than enough information to put forward articles of impeachment. And no court—other than the U.S. Senate, at an impeachment trial—has any role in the process. So, stop rushing to the courts. (By the way, and this applies in my much smaller world too, if you ask a court for a decision, you must live with it. Why, then, does a co-equal branch of our government lower itself by taking disputes to the courts?)
The Trump Administration refuses to participate in the process. Good on them! As a lawyer who litigates, I like cases I win by default.
I appreciate the fear about public opinion. It’s real! However, Mr. Trump got taken seriously in 2016 only because too many people, for too many decades, deferred to him. He’s real in that respect, but he’s POTUS because of a fluky Electoral College map and an opponent who ran a bad campaign.
I wrote a piece, a day or so after the Ukraine story broke, advocating for not impeaching Mr. Trump. Too much trouble, to no evident end! Changed my mind, have I. This entire matter involves, in addition to corruption which has Mr. Nixon blushing in his grave, power. Power plain and simple. For decades, power has flowed downhill, from Capitol Hill to the White House. Still, what was a trickle which became a stream has become a flood. Time it is to reassert Congressional power. Directly. Without apologies or hesitation.