Now that the House Judiciary Committee’s first public hearing into the possible impeachment of Donald Trump has concluded and Speaker of the House Nancy Pelosi has announced Democrats will proceed with articles of impeachment, two questions come to mind. What exactly was the purpose of Wednesday’s hearing? And who did House Democrats hope to convince by having liberal law professors echo the same arguments made by the leaders of the impeachment project?
The fact that this was Judiciary’s only public involvement in this effort so far is strange on its own. Under normal circumstances and historical precedent, impeachment proceedings would have originated with Judiciary. However, this House majority made a decision to invest the investigatory authority of the Ukraine affair with the Intelligence Committee and Adam Schiff, a decision made more for the politics and optics than for jurisdictional purposes. This unusual choice only amplified the partisan bickering that began during the Russia-collusion scandal and sapped the credibility out of the preceding hearings.
Choosing Schiff, especially with his habit of making hyperbolic and occasionally unsupported public allegations about Trump, was always an odd choice. Unlike the Robert Mueller investigation, very little if any of this case had anything to do with the U.S. intelligence communities that Schiff’s panel oversees. Given that almost all of the testimony came from State Department personnel and involved diplomatic policy, it would seem the House Foreign Affairs Committee headed by Rep. Eliot Engel (D-N.Y.) would have been a more logical alternative if Judiciary wasn’t desirable for some reason. Not only are the committee members far more familiar with the personnel and issues involved in the dispute over Donald Trump’s handling of Ukraine, the committee had previously not featured in any other impeachment efforts and could have gone into the probe with less animosity coloring the results. At the very least, Engel and ranking member Rep. Michael McCaul (R-Texas) would have started with a relatively clean slate and a functional working relationship.
Instead, Congress put the long-simmering feud between Schiff and Intelligence Committee ranking member Devin Nunes on center stage, in pursuit of a case that ended up eluding most Americans. Despite several weeks of public hearings and declarations that they had a case against Trump for abuse of power, obstruction, and arguably even bribery and treason, polling barely budged — and what little movement there was went in the wrong direction.
The day before Judiciary’s hearing, The Washington Post called the aggregated polling “stable” on impeachment and removal, but House Democrats needed much more than stable. They needed a major shift toward a consensus for removal, especially among Republican voters. Not only did that not materialize, the Post notes, but a clear majority of voters from swing states still oppose impeachment, despite Schiff’s insistence that House Democrats had made an open and shut case for removal.
Thus we come to the real reason for Wednesday’s hearing which heard testimony from four constitutional law experts, only one of whom was called by Republicans, according to Nadler’s rules for the event. Rather than attempt to shore up the case with direct evidence and first-hand testimony, House Democrats wanted to spend a day arguing that they’d already made their case.
So who was the target audience? It seems very doubtful that voters — especially those who don’t already have their minds made up — would tune in to mull over the finer points of the Federalist Papers and the origins of impeachment in English common law. This spectacle seemed much more designed to reinforce Schifff’s claim for some members of the House Democratic caucus who might have gotten cold feet.
Even on that basis, the hearings likely didn’t move the needle. The House Democrats’ experts gamely argued that they had enough on the record to support impeachment, but fell victim to the general hyperbole we’ve heard many times before. One of the witnesses, Noah Feldman, declared that a failure to impeach Trump meant that “we no longer live in a democracy,” while another, Pamela Karlan, had to apologize after her mention of Barron Trump’s name in making a point about Trump’s supposed monarchical impulses backfired. None of the three witnesses called by Democrats extended or expanded the case against the president, although they certainly seemed eager to affirm it.
Meanwhile, the Republicans’ witness, Jonathan Turley, not only forcefully contradicted the other witnesses, he effectively warned that House Democrats might end up abusing their power in a similar manner in which they have accused Trump of doing. His opening statement covering the history and purpose of impeachment ran 53 pages — two and half times longer than the opening statements of the other three experts combined — laid out in grueling detail how this impeachment has significantly departed from both the original intent of the framers and every precedent of impeachment in the past.
Furthermore, Turley warned, a late plan to add an obstruction article over Trump’s refusal to comply with document and witness demands ran a higher risk of constitutional erosion than the case Schiff had made against Trump regarding Ukraine. House Democrats could easily have taken Trump to court to enforce the subpoenas, Turley pointed out, but chose instead to accelerate the process to get an impeachment vote concluded by the end of the year. Had Trump defied a Supreme Court order to comply, that would certainly have been an obstructive act, but seeking a legal recourse to judicial review for a dispute between the branches cannot qualify. “If you make a high crime and misdemeanor out of going to the courts,” Turley warned, “it is an abuse of power. It’s your abuse of power.”
In the end, both House Democrats and voters finished the hearing in the same place they began. Partisans on both sides breathed fire, while the case itself hasn’t changed at all. Nancy Pelosi and her colleagues have no choice but to plow ahead, but do they even believe in what they’re about to vote for?
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The Week · by Edward Morrissey · December 5, 2019