Yeomans Work

The Long-Term Consequences of Quick Impeachment

December 11, 2019

The House leadership has announced its intent to move forward this week with two articles of impeachment in the House Judiciary Committee: one charging that Trump abused the power of the presidency and another charging that he obstructed Congress. Further articles can be proposed in committee, but their adoption is unlikely. Rather the House will be content to proceed expeditiously with tightly drawn articles focused on Ukraine and obstruction of Congress. That pace, which is driven largely by the election calendar, will have at least two consequences that are not in the long-term interests of the country.

1. Members and witnesses have stated repeatedly that impeachment is essential to protect the integrity of the 2020 election. Trump poses a severe threat to our electoral system. He invited Russian interference in 2016 and has been caught soliciting help from Ukraine for 2020. We don’t know what other schemes may be under way. Disabling his ability to corrupt the 2020 election must be impeachment’s top priority.

Yet, rushing an impeachment process that will result in his speedy acquittal seems inconsistent with that goal. History tells us that Trump will strike again as soon as the investigation ends. He waited all of one day after Robert Mueller’s poorly received testimony to call Ukrainian President Zelensky to demand a favor. He will feel thoroughly vindicated and untouchable after a Senate acquittal. The House has developed a strong record of thoroughly impeachable conduct. If Republican solidarity had cracked so as to result in Trump’s conviction, then a speedy trial would be in order. But it has not yet done so.

The impeachment process, on the other hand, is powerful medicine. It keeps the spotlight focused on Trump’s electoral misconduct and magnifies the power of congressional oversight. Even still, Rudy Giuliani continues to muck around the swampy fringes of Ukraine corruption in search of evidence against the Bidens and in support of Russian propaganda blaming Ukraine for 2016 election interference. But, he can’t do it in secret and his next misstep may strengthen the case for impeachment, if impeachment remains a possibility.

It would be one thing if the House had exhausted the relevant trove of witnesses and documents. Because of Trump’s obstruction, however, it has barely penetrated Trump’s inner circle or tapped the full complement of public servants with stories to tell. Impeachment should not be kept alive purely for political reasons, but it must be used as effectively as possible to prevent the theft of an election by a corrupt president. The House should not quit too soon.

2. Trump’s blanket obstruction of the impeachment investigation strikes at the core of our constitutional structure. His dismissal of impeachment as unconstitutional and a sham amounts to a declaration that he is above the law and cannot be held accountable by Congress. His instruction to officials in his Administration not to testify or produce documents implements that declaration. If allowed to stand, Trump’s obstruction will become precedent for his future behavior and that of his successors.

Unfortunately, Republicans in the Senate will not stand up for the powers of their institution. For that reason, the House majority has a responsibility to pursue witnesses and documents in court. If Congress alone cannot enforce standards of accountability, it must turn to the third branch to set the guardrails defining presidential authority.

So far, the House’s efforts to pursue witnesses have been half-hearted, at best. Former National Security Advisor John Bolton hasn’t received a subpoena, and the House has appeared to back away from its pursuit of his former deputy, Charles Kupperman. Acting Chief of Staff Mick Mulvaney received a subpoena, but ignored it without consequence. Other obviously relevant witnesses, such as Secretary of State Mike Pompeo, haven’t been pursued.

Admittedly, court enforcement of subpoenas takes time and the process should be much farther along than it is, but it should still happen. Trump’s claims of absolute privilege will not survive in court.  Once they start to fall, the process could accelerate.

It is important to pursue witnesses while Congress is still pursuing impeachment, which elevates its investigative strength to its highest level. Persuading courts to establish legal principles governing the scope of congressional investigative authority will be an essential component in rebuilding the system of checks and balances that the Trump Administration and its congressional supporters have damaged so severely.

By pursuing narrow articles of impeachment with a final vote next week, the House majority runs the risk of appearing less interested in finishing the job than in clearing impeachment off its calendar before election season. That may be a politically wise decision in the short run, but it may not provide the best protection for the 2020 election and it certainly leaves unfinished the work of reasserting the investigative power of Congress.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.