The Atlantic's legal and constitutional expert, former law clerk in the US Court of Appeals for the 3rd Circuit Jane Chong, looks at the impeachment and trial of the *ILK *Impeached (*But Not Removed) Lyin' King and provides a way forward in matters of presidential maladministration. If this is a (fair & balanced) judicial review, so be it.
[x The Atlantic]
Impeachment Will Never Be The Same Again
By Jane Chong
TagCrowd Cloud provides a visual summary of the blog post below
It took 230 years for a US president to be impeached and tried by a divided Congress, with one party controlling the House and another the Senate. The country has now witnessed why that matters. Baseline cooperation between the chambers may not guarantee a particular outcome—but in every prior impeachment it has secured a reasonable amount of process.
Donald Trump’s breakneck acquittal marks the breakdown of that process and a turning point in how Congress, and the country, understands the purpose of impeachment. More specifically, Trump’s show trial in the Senate suggests the forced evolution of impeachment in instances where the House portion serves as the only meaningful phase of the proceedings. Impeachment is shifting from a mechanism deployed to remove a misbehaving president to an exercise in pure investigatory oversight—consisting of a full fact-finding mission and an eye toward serving up a complete set of evidence and conclusions on a platter to a hostile Senate. In other words: The re-impeachment of President Trump—and the impeachment of any future president whose party controls the Senate—wouldn’t look at all like what just went down in the House.
As the House Judiciary Committee recognized in its impeachment report [PDF], this was “the first time in modern history” that House committees served as “original factfinders” in a presidential impeachment. As part of that unprecedented fact-finding mission, the House issued three dozen formal requests for testimony or documents from various White House, State Department, and intelligence officials believed to have information about Trump’s dealings with Ukraine (including John Bolton, Trump’s former national security adviser, who refused to appear). The House issued even more congressional subpoenas compelling cooperation. But when many of those efforts went ignored by would-be witnesses per the White House’s instructions, the House avoided taking what may have then seemed like nuclear options. That is, the House did not pursue enforcement through the courts.
This was, according to the House report, a pragmatic choice, one that prevented the impeachment inquiry from potentially dragging on for months, or even years. The House also did not seek to enforce its subpoenas through its own statutory or “inherent” contempt powers—the latter a tool that Congress hasn’t actually deployed in almost a century, but that would avoid the awkwardness of relying on the Justice Department to prosecute a witness resisting the subpoena on the White House’s orders. On the strength of the evidence unveiled during a month of public and closed-door hearings, the House instead voted to impeach.
The apparent hope was that the trial in the Senate would serve as the threshing floor; additional documents and witnesses would be brought in to break down the charges and defenses; the truth would be winnowed from the lies. But in retrospect, at least, there was no reason to expect that. The Senate phase unfolded exactly as portended from the start, when House Speaker Nancy Pelosi unsuccessfully attempted to condition transmittal of the articles of impeachment on the Senate leadership’s commitment to a fair trial.
The House process was undisciplined and pockmarked with indecision and seeming improvisation. But the House leadership’s approach was hardly the “botched” “rush job” that Senate Majority Leader Mitch McConnell claimed it was. As a technical matter, from start to finish the impeachment inquiry wasn’t short; it ran just a little under three months—about a week longer than Bill Clinton’s and two months longer than Andrew Johnson’s (who was impeached in two weeks). The difference is that Clinton’s impeachment was preceded by a sprawling four-year investigation by Ken Starr (more recently appearing as a member of Trump’s defense team), the independent counsel appointed under a now-expired statute. Here, foreclosing anything similar and teeing up an entirely in-House impeachment without any investigatory outsourcing, the Justice Department declined to appoint a special counsel to look into the whistle-blower complaint about Trump's July 25 call with Ukrainian President Volodymyr Zelensky.
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.”
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.
The point is that an impeachment inquiry doesn’t have to be a proceeding wholly different in kind from the House’s other oversight activities. Taking this idea to its logical extreme, in practice an impeachment need not even be a discrete event unto itself: The House could blur the lines by engaging in post-acquittal investigations of matters deemed insufficiently investigated during the impeachment proceedings, a course of action that would raise complicated questions about what it really means for an impeachment trial to conclude. That approach seems to be gaining traction now. Before the acquittal vote, House Judiciary Committee Chairman Jerry Nadler, a Democrat from New York, said the House would “likely” subpoena Bolton, though a decision has yet to be made. Redoing portions of an impeachment inquiry through a probe directed at the very same issues that formed the basis for impeachment is an uncomfortable prospect that only reifies the importance of the House getting it right the first time around—namely, without any expectation that the Senate will even try. ###
[Jane Chong is the former deputy managing editor at the Lawfare Institute. She received both a BA summa cum laude (English and philosophy) and BS (economics) as a Duke University Scholar at Duke University (NC) and a JD from the Law School of Yale University (CT). While at Yale, she was a senior editor of the Yale Law Journal and a recipient of the Israel H. Peres Prize for the best student note or comment in the Yale Law Journal, as well as the Thurman Arnold Prize for best oralist and the Potter Stewart Prize for best team overall oral and written advocacy in the Morris Tyler Moot Court of Appeals competition. After law school, Chong clerked for Judge Cheryl A. Krause of the United States Court of Appeals for the Third Circuit. Currently, she is an associate at Williams & Connolly, LLP in Washington, DC.]
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