The main defense of Republicans in the impeachment inquiry into President Trump has been to attack what they call the secrecy of the impeachment inquiry. Trump’s defenders point to closed-door hearings and the fact that the House has not yet been allowed to vote on whether to conduct the impeachment inquiry itself. There is some truth to the charges against the way the Democrats are conducting the inquiry, but there are also examples of Republican criticisms being off base.
The fact that Speaker Nancy Pelosi has not allowed a House vote on whether to begin an impeachment inquiry has been a major complaint of Republicans. On Sept. 24, Pelosi merely said, “I am announcing the House of Representatives moving forward with an official impeachment inquiry” and the ball started rolling.
Republicans seem to be correct that no other impeachment inquiry has ever been launched without a House vote, but the bottom line is that neither the Constitution nor House rules require a vote to begin an impeachment investigation. As Keith Whittington of Lawfare pointed out, the House leadership chose to use standing committees to investigate Mr. Trump’s alleged abuses of power and were entirely within House rules to do so.
Further, neither the Constitution nor House rules require an impeachment inquiry at all. If the House wanted to bring up an impeachment vote with no investigation at all, it could do so. Such a scenario might happen if a president’s actions were either obvious to the most members of Congress or if the president openly admitted to impeachable acts.
Republicans have also complained about how they are being treated in committee. There have been claims that Republicans were shut out of committee meetings and were not allowed to be present and ask questions at depositions. Intelligence Committee Chairman Adam Schiff explained the need for some secrecy to Roll Call, stressing that the current inquiry is different from the impeachment investigations into Bill Clinton and Richard Nixon where special prosecutors had already investigated the incidents that led to the impeachment.
“In each of those cases, there were either independent counsels or special prosecutors doing the investigation, doing the initial investigative work, and that was all done behind closed doors,” Schiff said.
Schiff explained that if witnesses were aware of what other witnesses had said, they could tailor their own testimony “either to hide the truth or color the truth or know just how much they can give and how much they can conceal.” It is a basic investigative technique to separate witnesses and to get their individual testimony without having it tainted by hearing others.
“Now, I should tell you, notwithstanding those good and sound reasons, at each of these committee interviews and depositions and when we get to open hearings — and we will get to open hearings — the Republicans are completely represented,” Schiff said.
Schiff said that all members of the Intelligence, Oversight and Foreign Affairs committees and their staffs can attend depositions and ask questions. Republicans are provided equal time for questioning with the sides alternating every 45 minutes to an hour.
“They have been largely staff-conducted interviews. They have been very professionally done, although members, too, get to ask questions and we go until the questions are exhausted so they get to ask all the questions they want,” Schiff said.
In one publicized case, Rep. Matt Gaetz was ejected from a meeting of the joint committee investigating impeachment, but Gaetz was not a member of the committees holding the meeting. Gaetz is a member of the Judiciary Committee but it is the Intelligence, Foreign Affairs, and Oversight Committees that are conducting the impeachment hearings. There is no evidence that Republicans who serve on those three committees have been excluded. In fact, Axios pointed out that, when Republicans raided an impeachment hearing this week, 13 of the Republican protesters already had access to the hearing because they were members of the committees holding the hearing.
Republicans such as Jim Jordan (R-Ohio) don’t buy Schiff’s explanations. “We’re talking about impeaching the president of the United States in secret, based on an anonymous whistleblower with no first-hand knowledge, [who] has a bias against the president, has been reported that he worked with Joe Biden, who when he hears about the call, the next day writes a memo using all kinds of descriptors like crazy, scary, but then waits 18 days before he files a complaint,” Jordan complained. “And who does he run up to see in that interim? Adam Schiff’s staff. And now that guy says, ‘Now I’m going to be the special counsel and the independent counsel.’ That is laughable.”
Jordan’s rant actually undercuts another Republican complaint, namely that the whistleblower has not been called to testify. But if, as Jordan concedes, the whistleblower had no direct knowledge of Trump’s actions, he or she has little to add to the testimony of State Department officials who were in the loop and privy to Trump’s decision-making.
The answer is similar for Republican complaints about being denied access to transcripts of witness testimony. Republicans say that only members of applicable committees have access to the transcripts and then only under the watchful eye of Democratic minders. Democrats answer that the transcripts will be made public after the investigative phase is finished. Left unsaid is that they will be released when the possibility of witness tampering is reduced.
House Democratic Caucus Chairman Hakeem Jeffries also pointed to the 1998 House resolution authorizing subpoena power for the Clinton impeachment investigation, noting that Democrats did not have the power to independently subpoena their own witnesses as some Republicans have claimed but had to get approval from either the chairman or the full committee. Jeffries says that the current subpoena rules for the Intelligence Committee are no different.
Many members of the Trump Administration have used their complaints about the impeachment proceedings to justify failing to comply with subpoenas from House committees. Unfortunately, this is a double-edged sword since some Republicans, including Lindsey Graham (R-S.C.), are on record that refusing to comply with congressional subpoenas is itself an impeachable offense.
A further claim by Republicans is that impeachment requires a criminal act. While the Constitution specifies treason, bribery, and “high crimes and misdemeanors” as grounds for impeachment, the original intent of the phrase included acts that were not explicit crimes. A list of impeachments on the House website reveals that, of 19 impeachments from throughout US history, eight were for noncriminal acts including three cases that specifically cited abuse of power.
A charge by Jack Langer, a spokesman for Rep. Devin Nunes (R-Calif.) that, “There are no established rules or parameters at all, the Democrats are just inventing them as they go” seems to be untrue. Democrats argue that all of the normal committee rules protecting minority rights are still in effect for impeachment-related hearings.
In fact, it was only four years ago in 2015 when the chairman of the House Oversight Committee, Trey Gowdy (R-S.C.), personally dismissed Rep Darrell Issa (R-Calif.) from a hearing during the Benghazi investigation. The reason? Issa was not a member of the committee. The Democrats are following the same rules.
Republicans do have a stronger case in their complaints about not being able to call their own witnesses and present exculpatory evidence, but the test as to whether those claims will stand up will only come when the House moves beyond the investigative phase. Democrats say that there will be open sessions and transcripts will be released after the facts have been gathered. Current indications are the impeachment proceedings might move into the open phase as early as mid-November.
“We do anticipate a time when we'll be releasing transcripts, and we do anticipate there will be a time when we will hold back some of these witnesses for open session, and we may call witnesses in open session that we haven't called in closed session. But we will do so giving the GOP members every opportunity to ask questions,” Schiff said. “We want to make sure that we get to the truth, and this is the process, I think, early in an investigation that makes the most sense.”
Democrats seem to be following established congressional guidelines for congressional hearings, even if the decision to use standing committees rather than a select impeachment committee is not how impeachments have traditionally been handled. Before an impeachment vote is taken, critics of the president should make their case to the public. Supporters of the president do deserve a chance to present their side of the story as well. Indications are that the time for public hearings is coming within the next few weeks.
Originally published on The Resurgent