On March 4, 2019, House Judiciary Committee Chairman Jerry Nadler announced an investigation into “the alleged obstruction of justice, public corruption, and other abuses of power by President Trump, his associates, and members of his Administration.”
Since then, there has been a national debate going on about whether the committee’s investigation is enough to examine the wrongdoing of President Donald Trump. Is it an impeachment investigation? Is an impeachment inquiry needed? Is a vote needed to begin a formal impeachment proceeding? While the “I” word was not used on March 4, it does not take much imagination to envision what it could lead to if the House Judiciary Committee concludes that Trump engaged in obstruction of justice and/or abuses of power and/or public corruption. Obstruction of justice and abuse of power were the findings of wrongdoing contained in two of the Articles of Impeachment against President Richard Nixon voted by the House Judiciary Committee in July 1974.
For anyone with questions about what the House Judiciary Committee investigation is, the language in the lawsuits filed by Nadler on July 26 and August 7 to obtain the unredacted Mueller Report and all of the grand jury documents, and to compel testimony from former White House Counsel Don McGahn, made clear that the committee is, and has been, engaged in an impeachment inquiry.
Nadler clarified this even further when he told CNN on August 8, “This is formal impeachment proceedings.”
Nadler also said on August 5, “If we decide to report articles of impeachment, we could get to that late in the fall, in the latter part of the year.”
Further, leading impeachment scholar Michael Gerhardt testified before the House Judiciary Committee on July 12 that there is no requirement for a vote in order to conduct impeachment proceedings, stating:
“There has been no tradition, rising to the level of a constitutional command, that requires impeachment resolutions to be approved by the House to authorize this Committee to initiate an impeachment inquiry – or to proceed in any particular way.”
And Ryan Goodman and John T. Nelson effectively made the case in a Just Security article that when the House operates within the “zone of the exercise of its impeachment authority, as it is doing here, the House is entitled to the additional legal powers that accompany impeachment inquires.
If you trace the path of the Nixon impeachment process in 1973 and 1974, you can get a pretty good idea about where the Trump impeachment inquiry could be heading. Clear parallels in the process emerge.
Parallels with Nixon
On February 7, 1973, the Senate Watergate Committee was established with a mandate to investigate the Watergate break-in, any efforts to cover up criminal activity and “all other illegal, improper, or unethical conduct occurring during the Presidential campaign of 1972, including political espionage and campaign finance practices.”
Today’s parallel: May 17, 2017
That was the day that Robert Mueller was appointed as special counsel to investigate Russian interference in the 2016 presidential election with a mandate that included
“any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump and any matters that arose or may arise directly from the investigation.”
In fulfilling its mandate, the Watergate Committee conducted extensive public hearings and developed a comprehensive record of wrongdoing by Nixon and his associates. Similarly, Mueller’s office built an extensive record of abuses by Russia, Trump and Trump’s associates that culminated in a 448-page report submitted on March 22, 2019 to Attorney General Bill Barr. Unlike the work of the Watergate Committee, however, the special counsel investigation was not carried out in public.
On October 30, 1973, the House Judiciary Committee began consideration of the possible impeachment of Nixon.
Today’s parallel: March 4, 2019.
Nadler began his committee’s investigation into obstruction of justice, public corruption and abuses of power by Trump. It was unnecessary for the Judiciary Committee to vote on Nadler’s subpoena powers because House Republicans had previously extended broad subpoena powers to all committee chairs in 2015. Further, the House voted in June 2019 to give committee chairs the power to enforce subpoenas that had been ignored.
Both the 1973 and 2019 House Judiciary Committees were able to build on the records of earlier investigations – conducted by the Senate Watergate Committee and by the special counsel’s office, respectively. Thus, the House Judiciary Committees then and now did not begin from scratch.
On May 9, 1974, the House Judiciary Committee opened formal impeachment hearings against Nixon.
On August 8, 2019 Judiciary Committee Nadler stated that his Committee was engaged in “formal impeachment proceedings.”
Regardless of whether you call it an “investigation,” an “impeachment inquiry” or a “formal impeachment proceeding,” the matters that the Judiciary Committee has been investigating since March 4, 2019, and the lawsuits brought by the Committee, make clear that Committee is considering whether Trump should be impeached.
On July 27, 29 and 30, 1974, the Committee voted in favor of three Articles of Impeachment against Nixon, two of which were for obstruction of justice and abuse of power.
The question facing the country now is whether the House Judiciary Committee will vote to approve articles of impeachment against Trump, as the same committee did in July 1974 against Nixon.
The Mueller Effect
On July 24, 2019, Mueller reluctantly testified before the House Judiciary and Intelligence Committees.
Much of the Washington establishment and punditry missed the impact of Mueller’s testimony, by focusing instead on his halting and “ineffective performance.” Coverage of the testimony treated it as “short-circuiting” an impeachment effort.
But this take failed to take account of two very important factors.
First, Mueller in his testimony flat out rejected Trump’s lies, including his lies that the Mueller report found no collusion and no obstruction, and “totally exonerated” the president. Mueller also addressed the “sweeping and systemic” interference by Russia in the 2016 presidential election and the dangerous threat Russia and other foreign adversaries pose to our upcoming 2020 election. Trump has completely ignored this threat.
The pundits also missed the fact that while the “performance” problems with Mueller’s testimony would be a one-or-two-day story, the substance of his testimony about the powerful case set forth in his report would have longer-term impact.
Second, this interpretation of his testimony also failed to recognize the August campaign that was being planned, and is now being executed, by a number of organizations with strong grassroots capacities to press members of Congress in their districts to announce support for an impeachment inquiry.
Combined with House Speaker Nancy Pelosi’s signal to House Democrats just before the August recess to chart their own courses on this question, these two factors played a major role in the growing number of House members who, one-by-one, have come out for an impeachment inquiry during the August recess.
Pelosi has taken the position from the beginning that the House needs to fully inform the American people about Trump’s abuses before House Democrats decide how to hold the president accountable.
A Washington Post-ABC News poll released in July showed 59 percent of Americans opposed an impeachment proceeding against Trump, while 37 percent supported it. Moving public opinion is important if House Democrats want to impeach Trump. Chairman Nadler said on August 5, “If the American people don’t support it, then maybe you don’t vote the impeachment. Because you have to have public support.”
Building Support
The task undertaken by the House Judiciary Committee to fully inform the American people about the President’s transgressions has been severely hampered by two problems.
First, the attorney general grossly and irresponsibly misled the public about the findings of the Mueller report in a press conference he held almost a month before finally delivering the actual report to the House and making it available to the public.
This delay provided Trump with the opportunity to build on Barr’s misrepresentations and falsely argue to the public that the report found “no collusion,” “no obstruction,” and provided him “total exoneration.” This was repeated by the president and his supporters for almost a month without Congress or the American people knowing the contents of the Mueller report.
Second, Trump has engaged in an unprecedented stonewalling campaign to thwart congressional oversight of his presidency, his campaign, his associates and his administration. This has included ordering former Trump associates and current and former administration officials to defy subpoenas requiring them to provide testimony and documents to the Judiciary and Intelligence Committees.
This has handcuffed the House Judiciary Committee’s efforts to develop a full public record in its investigation of President Trump’s actions.
The lawsuits recently filed by Nadler to obtain documents and compel McGahn to testify could end Trump’s stonewalling campaign, open the door to compelling other witnesses to testify and result in the full story about Trump abuses being placed before the American people.
According to an Associated Press count, as of August 10, 2019, 119 out of the 235 House Democrats have now called for an impeachment inquiry. But the key number here is 217, not 119. That is the number of Democrats, along with Rep. Justin Amash (I-Mich.), needed to ensure articles of impeachment are adopted by the House. Democrats are still a long way from 217 and that is what makes the ongoing Judiciary Committee’s investigation and its building of a public record to inform the American people so important.
For Trump’s opponents, the highest moral imperative is to see him leave office by no later than January 20, 2021. With regard to this goal, the worst possible result of the current process would be to lose an impeachment vote on the House floor. The second worst result would be for the Committee to report articles of impeachment and not be able to go to the floor because there are not enough votes to pass the articles.
Either of these outcomes would result in Trump claiming that he has been “cleared” by the Democratic House, which would be unhelpful for getting him out of office, as well as for protecting the rule of law in the country.
Pelosi’s step-by-step approach, with off ramps if necessary, and Nadler’s efforts to develop and place the full record of Trump’s wrongdoing before the American people, appears to be the correct way to proceed.
Once the full case against Trump has been developed and placed before Congress and the country, House Democrats can then decide how to hold Trump accountable and whether to move from the current impeachment inquiry to articles of impeachment.