Before voting to impeach President Trump, the House Judiciary Committee would have to open an impeachment inquiry. Photo / Erin Schaff, The New York Times
Some Democrats say opening an impeachment inquiry could help the House overcome the president's blockade of its investigations. But others say that could backfire politically.
Liberal House Democrats, struggling to combat President Donald Trump's stonewalling of congressional oversight, have come out by the dozen in recent days to endorse a new strategy to secure the information that they say they need: opening an impeachment inquiry.
Supporters of an inquiry argue that they are not necessarily seeking the president's ouster but instead are pursuing a legal strategy — warranted by the stakes — to try to break Trump's blockade of nearly every document and witness that Democrats have requested since the release of the redacted report by special counsel Robert Mueller in April. Opening an investigation, they say, could increase Democratic chances of winning court orders to require compliance with House subpoenas.
But others are wary, saying it would be politically risky; impeachment implies an effort to remove the president from office, and Trump is primed to try to exploit any such effort politically. On Thursday, he called impeachment a "dirty, filthy, disgusting word."
Here's what you need to know about how impeachment inquiries work.
What is impeachment?
The Constitution permits Congress to remove presidents before their terms are up if enough lawmakers vote to say that they committed "treason, bribery, or other high crimes and misdemeanours."
The House can impeach a president — which is like an indictment — by a simple majority vote. After a trial in the Senate, two-thirds of the upper chamber would have to vote to convict to remove the president.
Only three presidents have been subjected to impeachment proceedings. Two were impeached by the House but acquitted by the Senate: Andrew Johnson in 1868 and Bill Clinton in 1998 and 1999. A third, Richard Nixon, resigned in 1974 to avoid being impeached.
What is an impeachment inquiry?
Before the House decides whether to impeach a president, the House Judiciary Committee first can hold hearings to investigate whether that step is warranted. This can include calling witnesses, collecting documents and debating whether the behavior in question constitutes an impeachable offense, which the Constitution only ambiguously defines. The inquiry would culminate in the panel either voting to recommend that the full House approve one or more articles of impeachment, or deciding not to make any such recommendation.
What is the process for opening an inquiry?
The full House voted for resolutions directing the House Judiciary Committee to open the inquiries into Nixon and Clinton. But it is not clear whether that step is strictly necessary, because impeachment proceedings against other officials, like a former US District Court judge in 1989, began at the committee level, congressional aides say.
In 1998, the Clinton resolution granted the House Judiciary Committee certain powers to subpoena for documents and testimony. Since then, however, House rules have been changed to enhance the subpoena powers of Rep. Jerrold Nadler, chairman of the House Judiciary Committee, so that step may be redundant.
The question matters because, at this stage, vulnerable Democrats in swing districts may prefer to avoid taking a public stand on the issue. On the other hand, the committee may not want to test whether it can open a presidential impeachment inquiry without a House vote because that would give Trump's lawyers another argument to make in any court battles over Democratic subpoenas.
Why would an inquiry strengthen the House's hand in getting information out of the Trump administration?
There is broad agreement that an open impeachment inquiry could help the Judiciary Committee argue that it has a right to information otherwise protected by grand jury secrecy rules. That information includes certain portions of the Mueller report that Attorney General William Barr blacked out, as well as underlying evidence like transcripts of witness testimony before a grand jury.
The US Court of Appeals for the District of Columbia recently issued a ruling that put forward a narrow view of when courts may let outsiders, like members of Congress, see grand jury information. The decision's reasoning called into question how it had been legal for the court, back in 1974, to permit the grand jury investigating the Watergate scandal to share its evidence with the House Judiciary Committee. But rather than overruling that precedent, the court decided the sharing of information could be interpreted as falling under an exception in the rules that permits such sharing when it is needed for "judicial" proceedings — and impeachment proceedings are like a judicial process.
Under that logic, if there was an impeachment inquiry opened against Trump, the House Judiciary Committee could invoke the Nixon-era precedent as a legal basis to ask a judge to let it see Mueller's grand jury evidence.
Is there a broader argument that an impeachment inquiry would help?
Yes, but it is less concrete. Some Democrats, such as Nadler, have argued that it would strengthen their case in coming court battles over the subpoenas that Trump has vowed to ignore. They cite two reasons.
"Part of the rationale for that is if you are in court seeking to enforce subpoenas, you have better odds in court if you can say this is part of an impeachment inquiry rather than just part of your general oversight," Nadler said on MSNBC last week.
First, in early jostling over those information requests, the Trump administration and Trump's personal lawyers have put forward a sweeping argument that Congress' information requests are invalid because they have no legitimate "legislative" purpose behind them — that is, the subpoenas lack sufficient connection to potential new laws that Congress may consider enacting. The Trump legal team has accused Congress of just trying to find out whether laws have been broken — a task it says is an executive branch function — and of digging up dirt for political ammunition. Supporters of an inquiry say that having an open impeachment process would strengthen their hand because in court proceedings, they could also tie their requests to their constitutional function of deciding whether to remove a president.
Second, Democrats have expressed fears that the Trump administration might try to use lengthy court battles over congressional subpoenas to run out the clock, thwarting their ability to perform oversight before the 2020 election. However, an impeachment inquiry is so serious that it could help persuade judges at each stage in the appeals process to expedite their rulings.
What is the argument against opening an inquiry?
Two points: it's not necessary, and it could ultimately help Trump.
To date, the first two judges who have encountered the arguments that House subpoenas are invalid because they lack a legitimate legislative purpose have been deeply skeptical of that view — and both have moved quickly to dispose of the case at their level. Speaker Nancy Pelosi has pointed to the rulings as evidence that Democrats are succeeding without impeachment.
Moreover, once Democrats open an inquiry, they could lock themselves into a process that will take on its own momentum. A House vote on any articles of impeachment would put House Democrats in moderate- to conservative-leaning districts, where impeaching Trump is an unpopular idea, in a difficult spot heading into the 2020 election.
Even if the House were to impeach him, it is unlikely that enough Republicans in the Senate would be willing to vote to convict him to result in his removal, just as Clinton was acquitted in 1999. The conventional wisdom is that Clinton was politically strengthened by Republican-led impeachment proceedings, and some Democrats fear that the same would be true here: If they open proceedings but fail to remove him, Trump would claim they overreached and that Congress had exonerated him.
Written by: Charlie Savage and Nicholas Fandos
Photographs by: Erin Schaff, Hilary Swift, Mike Lien and Tom Brenner
© 2019 THE NEW YORK TIMES
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