Thursday, May 30, 2019

An FAQ: Why the House should move forward with the impeachment of Donald J. Trump

My mind is made up. I think that the U.S. House of Representatives should move forward with the impeachment of President Donald J. Trump. Instead of writing a long argument which no one will read, I thought I would cast my position as a long and thinly-disguised FAQ. So here goes.

Q: Isn’t impeaching Trump by the House, absent the chance of conviction on the Senate, just playing into his hands? Won’t he use a failed impeachment to mobilize his base even more in 2020?

This kind of idle speculation is brought to you by the same folks who like to get Democrats to agonize over the “electability” of their competing presidential candidates. These are the very same pundits who opined in 2015 that Jeb Bush had a lock on the Republican presidential nomination and declared that nominating Trump in 2016 would lead to the GOP’s imminent downfall as well as their embarrassing rout in the general election.

The fact of the matter is that no one knows how impeachment of Trump by the House will play out. A lot depends on how the impeachment proceedings unfold and what the related investigations reveal. To make confident predictions about this process is an act of intellectual hubris. Also, I think it’s downright silly to imagine that Trump’s base could get anymore mobilized. They are full-time, Fox-News-fueled, nut-job mobilized as it is.

In addition, few commentators appear to be considering just how mobilized the Democrats might become as a result of Trump's impeachment. Sure, they're pretty pumped up coming off a very effective mobilization that led them to victory in last year’s midterm elections, but I don’t think they are anywhere near peaking. Besides, with two dozen candidates vying for the top of the Democratic ticket in 2020, the moral clarity that could result from a thorough investigation of the high crimes and misdemeanors of Donald Trump, may just what will be needed to unite a fractured party on the run-up to the general election.

There is one other component to my political analysis that recommends pursuing impeachment. And that is it will upset DJT to no end, day in and day out, for the better part of the next year. And, lest you think that I am motivated solely by wanting to see Trump suffer as some compensense for what he has put us all through these last couple of years, I point out that a fuming Trump has turned out to be a fumbling Trump.

Yes, what has gotten us to this critical point in this sad tale of presidential misdeeds, was not the original charter of the Robert Mueller’s Russia investigation itself, it was the way that original charter resulted in Donald Trump’s becoming so unhinged that he committed serial acts of obstruction of justice. (In sports parlance, I believe that these are called “forced errors.”) If you think Robert Mueller's investigation sent Donald Trump off the deep end, imagine what a months-long, 24/7 impeachment inquiry will do. Besides, if recent experience is any guide, Trump is likely to commit new crimes that can serve as more impeachment fodder should he somehow be reelected next year.

Q: Isn’t the sole purpose of impeachment by the House the real prospect of removing the president from office as a result of conviction in the Senate? Does it make any sense to forward articles of impeachment to the Senate when it's pretty much given, at least with the information we have in hand now, that Trump will be acquitted there?

Although impeachment by the House was viewed by the framers of the constitution as the first step in a two-step process of removing a corrupt president from office, there is nothing that speaks to that being its sole purpose. The House’s job isn’t to determine whether an impeachment will succeed, its job is to act as a guardian of the American democratic system of government by uncovering and documenting crimes and misdemeanors committed by the highest office holders in the land and forwarding those determinations to the Senate for their consideration in full public view.

My last qualification, in full public view, emphasizes a central purpose of the impeachment process. The House, using investigative powers granted only to it, lays out a case that the president has committed inexcusable wrongs. Its responsibility is to make that case convincingly, not only to clarify the situation to contemporary audiences, but also to set the historical record straight. Only the House can do this.

And, although it is the case with impeachment that the House proposes and the Senate disposes, I can think of no better way of documenting the moral and political failure of a craven Republican Senate than by having them dismiss the weight of the evidence brought before them by their colleagues in the lower chamber. Another way of saying this is that House is bound to proceed with a stillborn impeachment, if only to underscore the cowardice the Senate has demonstrated the last two years.

Q: Well, even if further congressional investigations of Donald Trump are a good idea, why do they have to be conducted under the rubric of impeachment? Isn’t it sufficient to have the various House committee investigations (e.g. Intelligence Committee, Oversight Committee) move forward? Won’t they eventually have the same effect as an impeachment investigation without all the hullabaloo?

In a more perfect world - one where the executive branch was responsive to congressional requests for information and complied with congressional subpoenas - the answers to these questions would be “yes.” But we don’t live in such a world. Far from it, we live in a world whether the President of the United States has vowed to refuse to cooperate with all investigations initiated by the U.S. House of Representatives.

And how these disputes between the legislative and executive branches are worked out in the federal courts will ultimately tell the tale of this corrupt administration. Depending on whether those investigations originate in, say, the House Ways and Means Committee which is seeking Donald Trump’s tax returns from the Department of the Treasury or from a committee tasked with investigating Donald Trump’s impeachment makes all the difference.

The reason behind this difference has to do with the authority that Congress relies on in pursuing its investigations. When committees like the Ways and Means Committee undertake an investigation it has to be done in order to make laws, in other words it has to have a legislative purpose. This is the legislative authority granted to the Congress by Article I, Section I of the constitution.

Not surprisingly, objections to such committee-initiated investigations often emanate from claims that the requested information serves no legislative purpose. This is exactly what has happened with the request by Ways and Means for Trump’s tax returns. Secretary of the Treasury Mnuchin contends that the request - even though it conforms with the letter of the law - is intended only to harass the president and has no legislative value. Although the committee has responded with identifiable legislative objectives associated with its request, the case will have to work its way through an appeals process which could take months or years to resolve. The same is true of other committee subpoenas, although they may thwarted by other legal claims, notably exemption due to executive privilege.

But things change qualitatively when the House investigation is being conducted as an impeachment inquiry. According to Article I, Section 2, Clause 5 of the Constitution:

“The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.”

This power of impeachment exists outside of any legislative authority granted to the House in Article I, Section I and is so not subject to legislative-purpose scrutiny. The operative word in Clause 5 is “sole,” which indicates that the power of impeachment - and, by extension, necessary impeachment investigations - are exercised at the discretion of the House alone. Although this does not circumvent all federal court challenges raised by the executive branch to subpoenas issued as a result of an impeachment inquiry, it should expedite the consideration of any cases that arise as a result.

All said, the investigative power of a House impeachment inquiry, unlike that of legislative committee counterparts, is largely unconstrained. When you recall that the House is tasked with the impeachment of corrupt officials, the very people who would avoid investigation, this makes a lot of sense.

So here’s it is in a nutshell, my argument for the House moving forward with impeachment:

(1) Determining the political consequences of a failed impeachment of Donald Trump is a pundit's guessing game; the only thing I can say with any certainty is that the process will keep Trump rattled and making political mistakes for the foreseeable future, which I take to be a good thing.

(2) Even a stillborn impeachment will have the desired effect of launching an investigation which further documents the crimes of this president and of his administration for historical purposes; this record can be used to help lawmakers determine how to protect our democracy from such abuses in the future.

(3) Investigations by standing House committees are subject to challenges concerning the validity of their legislative purposes; a House impeachment inquiry, once constituted, will have much freer rein in subpoenaing essential information thus expediting a legal process that could otherwise take months or years.

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