An impeachment inquiry: constitutional responsibility? folly? or roll of the dice?
Updated: May 9, 2019
I can almost hear Bob Dylan wheezing into his harmonica and croaking in his Nobel laureate voice, "it may be the president / it may be the veep / it may be the attorney general / you know you're gonna have to / impeach somebody."
Over the past weeks I have read articles and considered arguments that almost persuade me to join the the chorus calling for an impeachment inquiry. I am not yet there. In moments when I am more charitably disposed toward myself, I put this down to reasonable if perhaps excessive caution. An alternative explanation is miserable indecisiveness and reluctance to take the existential leap to accept the consequences if it all blows up, as it well it could. The stakes are high. Our constitutional form of government is on the line. Every option is perilous. We ought not deceive ourselves on these points.
Congresswoman Rashida Tlaib's resolution inquiring whether the House should impeach the president (H.Res. 257) now sits in the House Rules Committee with seven cosponsors.* My congressman, Earl Blumenauer, announced by Tweet on Friday that he has signed on to the resolution. Also on Friday, Indivisible Oregon, a group with which I am somewhat affiliated after my own idiosyncratic fashion, announced its support of an impeachment inquiry. The decision represents the consensus of the group's organizing team after weeks of consideration.
Following release of the redacted Mueller report, Democratic presidential hopefuls Elizabeth Warren, Kamala Harris, and Julián Castro called for the House to "take steps toward impeachment," while House Speaker Nancy Pelosi "urged rank-and-file Democrats to proceed with caution" (Weissert, Tension emerges...).
Blumenauer emphatically rejects the notion that the House should move immediately to a vote for impeachment (press release, May 3). The purpose of an impeachment inquiry is to gather facts and make the case for impeachment. This step is necessary in order for Congress to carry out its responsibility to conduct oversight of the executive branch.
Indivisible Oregon likewise is clear in distinguishing between an impeachment inquiry and a vote on impeachment. The group's goal "is to help Congress embark on a path that will have the power to hold Trump accountable, and make the case for a new Senate and President in 2020." My sense is that the overwhelming sentiment at Indivisible is that an inquiry is the first step to a foreordained impeachment vote. The pressure for the process to continue on to a vote once an inquiry has been initiated will be enormous.
Susan Hennessey and Quinta Jurecic provide good analysis and a convincing argument in their Lawfare article The Mueller Report Demands an Impeachment Inquiry:
"the options for checking a president who abuses his power to the degree that Trump has are functionally impeachment proceedings or nothing...if impeachment is presumptively off the table in the face of facts as extreme as those the Mueller report contains, then it’s reasonable to ask whether impeachment is truly available at all where members of the president’s party in the Senate comprise a sufficient number to block removal."
They dispute the assertion leveled in some quarters that with an election around the corner in 2020, judgement should be left to the voters, and the proper course for Democrats is to devote their energy and effort to the 2020 campaign:
"There is a danger to this mode of thinking, which is that Democrats should tolerate the institutional harms that would come from not initiating a serious impeachment inquiry because what really matters is winning the 2020 election. When you convince yourself that the best way to safeguard the republic is for your side to win, it gets tempting to tolerate all kinds of intolerable things. It is the precise calculus many congressional Republicans have made in supporting Trump despite his degradations of his office."
At this week's Indivisible Tuesday meeting with representatives from the Portland offices of Congressman Blumenauer and Senator Ron Wyden, I heard good and impassioned arguments in favor of an impeachment inquiry. A formal inquiry will focus the press and the public on a single committee investigating presidential misconduct. It will give the committee tools and leverage to compel testimony and production of relevant documents not at the disposal of House committees in the ordinary course of business, and it will force Republicans to go on the record one way or the other.
A faith that deliverance lies just over the horizon runs through it all. For months the mantra was to wait for the Mueller report, with all but certainty that it would produce a smoking gun that even Republicans would be unable to deny, dismiss, or explain away. When the redacted Mueller report failed to change hearts and minds, the faithful looked to the unredacted report, Mueller's testimony, Don McGahn's testimony, and now an impeachment inquiry.
If "the people" do not yet demand presidential accountability, if reports from the campaign trail are accurate and impeachment is not prominent among voters' concerns, that must be because they are not following this stuff as closely as we who are obsessed. They are uninformed. An impeachment inquiry will bring it all front and center under the glare of 24/7 media saturation. Then, at last, the majority of Americans are sure to arrive at the same conclusions about presidential misconduct that we share. Well, maybe.
I keep coming back to what the end game might be. The House Judiciary Committee has forty-one members, twenty-four Democrats and seventeen Republicans. If four Democrats determine that there is not sufficient evidence to warrant a referral of articles of impeachment to the House, if they join a united Republican front for a nay vote, the inquiry dies there. If the committee refers articles of impeachment to the House and enough moderate Democrats, unconvinced that impeachment is warranted (or anything but political suicide in their swing districts), vote with a united Republican caucus, impeachment dies there. Neither result is likely, but each is hypothetically possible.
The more probable outcome is that an impeachment inquiry will lead to a vote by the House to approve at least one article of impeachment that will be sent to the Senate for trial. I cannot envision a scenario where twenty Senate Republicans would vote to remove the president from office. It will take more than a smoking gun to sway them. It would take a mushroom cloud. I cannot imagine what that might be.
Perhaps the process would result in more evidence of "the abuse or violation of some public trust" (Hamilton, Federalist No. 65) that rises to the level of "high Crimes and Misdemeanors." This might even be thought likely, although for many minds, including my own, no more evidence is required. Nonetheless, failure of the process to conclude with removal from office will bring howls of "exoneration!" from Trump and his crowd. Where would the consequences lie? In what sense might accountability be found? The process might, as Charlie Sykes suggests, also result in the erosion of one, or two, or three percent of Trump's support. Given its already low levels, this could be enough to swing the 2020 election. Well, maybe.
My misgivings are magnified by doubts about the Democrats. An impeachment inquiry is a weighty matter. It calls for gravitas. Democrats need to be tough, disciplined, and smart. Some of them are. This is no place for comedians who bring buckets of chicken and silly props to committee hearings or declare that they will impeach the motherfucker. That stuff is fine for Saturday Night Live, the punditocracy, the blogosphere. It plays into the hands of the Trump camp when it comes from congressional Democrats. Some will be unable to resist the temptation to hotdog, grandstand, and campaign for the presidential nomination while on the big stage presented by an impeachment inquiry. Too much talk about impeachment too early in the Trump presidency is already fodder for Republican propagandists eager to paint the whole affair as a partisan exercise by Democrats who refuse to accept that Hillary Clinton lost to Donald Trump in 2016. Our cause is not served by adding to it.
Nancy Pelosi and others speculate that Trump is trying to provoke the Democrats to impeach him in the belief that this will redound to his advantage by shoring up his base. The president makes the case for his own impeachment tweet by tweet. It is anyone's guess whether a coherent strategy is at work or he is simply reacting to events. Trump is shrewd and unscrupulous. He is also impulsive and vindictive.
"Things are in the saddle, / And ride mankind." Emerson said that. Whatever I come to conclude about the advisability of an impeachment inquiry given the infinitesimal chance that twenty Senate Republicans would vote to remove the president from office, I will continue to speak out and take my stand against the Trump regime's misconduct and bad policies in whatever ways are open to me and hope that readers will do the same. What else is one to do?
Indivisible Tuesday with representatives from the Portland offices of Congressman Earl Blumenauer and Senator Ron Wyden
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*H.Res. 257 cosponsors: Al Green (Texas), Ayanna Pressley (Massachusetts), Ilhan Omar (Minnesota), Alexandria Ocasio-Cortez (New York), Jared Huffman (California), Filemon Vela (Texas), Earl Blumenauer (Oregon)
Russell Berman, Kamala Harris Sticks the Landing, The Atlantic, May 1, 2019
Susan Hennessey and Quinta Jurecic, The Mueller Report Demands an Impeachment Inquiry, Lawfare, April 20, 2019
Renato Mariotti, A Constitutional Showdown Between the White House and Congress Just Got Closer, Politico, May 3, 2019
Charlie Sykes, Should Congress Impeach Trump? Definitely Maybe, The Bulwark, April 22, 2019
Kim Wehle, Everything You Need To Know About Congress’s Attempts to Subpoena the Trump Administration, The Bulwark, May 6, 2019
Will Weissert, Tension emerges between Congress, 2020 Dems on impeachment, AP, April 23, 2019
Benjamin Wittes, The Catastrophic Performance of Bill Barr, The Atlantic, May 2, 2019