Friday, October 11, 2019

House Impeachment Procedures

by Michael C. Dorf

Let's begin with what's clear.

1) Congress has the power to subpoena private citizens and past and present executive branch officials to testify and to produce documents so long as the witnesses and materials sought bear some rational relationship to a legitimate congressional purpose, including impeachment and potential legislation. The Trump administration's withholding of appropriated funds from Ukraine makes the present impeachment inquiry obviously relevant to Congress's power of the purse. So too, Trump's conduct--as indicated by his own statements--makes the inquiry relevant to consideration of impeachment. Absent identification of specific objections on national security, particularized executive privilege, or other pressing grounds, executive branch officials and private parties must comply with congressional subpoenas. A court has rightly rejected Trump's claim to the contrary in litigation over Trump's financial records. Likewise, the White House Counsel letter to Congress asserting the president's right to refuse to "participate" in the impeachment inquiry is "bananas."

2) The key claim in the White House Counsel letter is that the procedures to be used in the House for the impeachment inquiry are unfair and thus unconstitutional. This is a very very bad claim. Article I gives the House "the sole Power of Impeachment" and grants it the power to "determine the Rules of its Proceedings." The letter cites procedures employed in prior presidential impeachments as precedents, but does not provide any reason to conclude that the House at the time thought it was constitutionally obligated to use the procedures it did or was setting a precedent that would be binding in the future. In Nixon v. US, the SCOTUS said that a challenge to the procedures used for a judicial impeachment trial in the Senate presents a non-justiciable political question, relying substantially on the fact that Article I assigns the Senate "the sole Power to try all Impeachments." The parallel language regarding the House means that its procedures as well would not be subject to judicial second-guessing.

So what's unclear? One question (that I'll address very briefly) is remedy. A second question concerns the most prudent course for the House to follow.

The non-justiciability of the question whether the procedures a congressional body uses for impeachment implies that if Trump goes to court, he'll lose. Of course, Trump won't go to court; he'll need to be dragged there. And if he makes a defense there along the lines of the White House counsel letter, he'll lose. The problem is that the election might occur before the courts finally rule in favor of the House. Accordingly, my colleague Josh Chafetz wrote in yesterday's NY Times that the House should consider self-help measures, such as having its sergeant-at-arms arrest Rudy Giuliani (assuming the US Attorney for the SDNY doesn't beat him to it!).

But if the courts are possibly too slow and arresting the likes of Giuliani too risky, another option the House might want to consider is actually adopting procedures more like the ones laid out in the White House Counsel letter. Doing so would not guarantee Trump's cooperation with the inquiry. Trump and his spokespeople would likely argue that the actual procedures are defective in some way, or invent some new excuse, or simply stonewall. But if so, the House could call Trump's bluff in the court of public opinion. And stonewalling could be the basis for drawing an adverse inference: You won't let Gordon Sondland testify? We accordingly conclude that he would say you did use the withheld Ukrainian money for leverage.

Moreover, although the White House Counsel is absolutely wrong in his conclusion that the procedures he describes are constitutionally required, adopting something like them might actually be a good idea. I say adopting something like them rather than the proposed procedures themselves, because there are ways in which the House would want to depart. For example, the right to cross-examine witnesses is considered part of the Sixth Amendment right of confrontation at trial; witnesses rarely testify anonymously. Yet, the House has very good reason to keep the identity of the whistleblower(s) secret--namely, to protect the whistleblower(s) from retaliation and private violence that the president has more or less openly encouraged. Other people whose cooperation is needed may likewise require protection for their identities.

Still, if some of the procedures we associate with a criminal trial are not necessarily appropriate to the impeachment inquiry, most trial-like procedures would increase the reality and perception of fairness and even-handedness. Those are goals worth pursuing for their own sake but also because of the stark political reality that the Senate probably won't vote to remove Trump. Even with public opinion moving towards impeachment, likely voters in Senate Republican primaries are still pretty clearly anti-impeachment and pro-Trump. And Mitch McConnell will have substantial input into how a Senate impeachment trial plays out (though CJ John Roberts would make initial rulings). That means that the main forum for airing Trump's betrayal of his oath of office is the House. It behooves the House to come across well to the public.

Against all of the foregoing, I have heard it said that the House procedures make sense because impeachment is like grand jury indictment, with trial in the Senate like a trial before a petit jury. And during proceedings before a grand jury, the accused has no right to confront adverse witnesses or present his own witnesses.

There's something to the grand jury analogy, but Democrats should stop using it, because it could be politically dangerous. The most likely outcome is still House impeachment followed by Senate non-removal. No matter how House Democrats structure the proceedings, Trump will claim that a vote not to remove him by 34 or more Senate Republicans is "complete and total vindication." The claim will not be credible, but it will be less incredible if Democrats have been to that point portraying the two-step process as closely analogous to indictment-then-trial.

By contrast, conducting hearings that allow some opportunity for Trump to defend himself (but not to impose substantial delays) will make clear to an even larger segment of the public that if Trump escapes removal by the Senate it will have nothing to do with his fitness for office. Indeed, given the nature of the people likely to be called as defense witnesses (such as Giuliani), more opportunities for Trump to defend himself before the House could end up strengthening the case for impeachment.

Finally, the White House Counsel letter also complains about the failure of the full House to authorize an impeachment inquiry. Like the other complaints, this is wrong as a matter of constitutional law. To the extent that it might help the House in obtaining judicial orders, however, it's worth pursuing. I assume that Speaker Pelosi hasn't sought such a kickstarter vote because some swing-district Democrats whose votes are needed would rather not yet go on record. That's a "political" rather than strictly legal calculation, but given the nature of the choice, it's fair to make such a calculation.


Bottom Line: The White House objections are bad as legal objections and made in bad faith. Still, some of the points might be worth pursuing anyway.