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The U. S. House of Representatives is moving towards the impeachment of President Donald Trump because that seems the only way to obtain verbal and written testimony needed by the House to examine the actions of the President. The Democrats are the majority party in the House and they know full well that having passed articles of impeachment that conviction in the Republican Senate is impossible. Having failed to convict in the senate, the Democratic House fears that Trump would declare victory and use a failed impeachment to bolster his re-election chances in 2020.

Rather than risk such an outcome, could the House simply pass articles of impeachment after lengthy and thorough hearings and then sit on the adopted articles rather than sending them on to the Senate?

  • I've shortened your question slightly and made the title more in line with what you're wondering. The question needs to be re-opened before anyone can answer. – Denis de Bernardy May 8 at 8:11
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    @DenisdeBernardy But now the question is just silly. Why would the House pass and then sit on the impeachment? That was explained in the section that you deleted (this poster believes it would give them a greater ability to subpoena). I find that legally questionable, but that's the claim. But you removed that. So now there is no reason for the House to sit on the impeachment. The question is now less clear than it was originally. – Brythan May 8 at 8:32
  • @Brythan: I wasn't under the impression it added much, but seem how you feel about it I've edited it back in. To me, the question reads like: would it be legal for the House to sit on a passed bill (so as to claim victory, I presume, though IMO that would be a tough sale given how the other side would mock them for posturing) and stall sending it to Senate. – Denis de Bernardy May 8 at 9:11
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    @JimClay It seems that the Mueller report has made it clear that unambiguous evidence of at least 5 separate felony charges of obstruction is indeed not sufficient evidence for 20 Republicans in the Senate to convict, at least based on the public response to the report by Republicans in the Senate. Some may have different views in private. – Bryan Krause May 8 at 16:13
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    @JimClay I doubt Mueller's report says that the evidence does not exist; he's too careful to say anything like that. More precisely, he may have said that the investigation did not uncover such evidence. But the question comes from the position that the impeachment hearings or trial would (or at least could) bring new evidence to light, in which case we can consider that such evidence could in theory indicate such egregious misconduct that conviction by the Republican-majority senate would be within the realm of possibility. – phoog May 8 at 16:41
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The U. S. House of Representatives is moving towards the impeachment of President Donald Trump because that seems the only way to obtain verbal and written testimony needed by the House to examine the actions of the President.

This particular premise is false; impeachment proceedings do not unlock magical powers for the House of Representatives that it does not otherwise already possess. The House can already compel testimony through subpoenas and whether or not there is an impeachment does not alter that in any way.

Impeachment is merely a formal way of making an allegation, which is then tried by the Senate. There is no logical reason to allege that the President did something worthy of impeachment and then not do the only thing the House can do with that allegation.

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    The threat of impeachment could, however, encourage the executive branch to cooperate with subpoenas, which they seem to have little inclination to do, and institution of actual impeachment hearings could impress upon the executive branch that the threat is not empty. – phoog May 8 at 16:43
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    @phoog That might have been the case if various Democrats hadn't been talking about impeachment non-stop for 3 years. – Joe May 8 at 17:16
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    The fact that democrats have been talking about impeachment for three years seems like it would make it more likely for the administration not to take such talk seriously, not less, which would make actual hearings more likely to make a difference in the administration's compliance. – phoog May 8 at 17:27
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    @phoog Not when the threats are largely idle, for crimes that cannot be shown to have happened, and for things that aren't really crimes to begin with. The Democrats set the bar too high; spending all of their political capital on the idea that Trump committed treason makes it hard to take anything less than that seriously even if it has merit. – Joe May 8 at 20:14
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    This is not quite correct. The Watergate Saga made it clear that "Executive Privilege" is a much weaker defense for ignoring subpoenas when it concerns impeachment proceedings than it is otherwise. Nixon tried asserting it, SCOTUS didn't buy it. So impeachment might actually be necessary to obtain some of the requested items, because the courts might uphold executive privilege assertions on non-impeachment requests that they wouldn't for impeachment proceedings. – zibadawa timmy May 10 at 5:40
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According to Jefferson's Manual the matter of Impeachment is a question "high privilege" and thus superceeds all business before the House (more plainly, impeaching a holder of political office is so important, the House moves it to the front of the line on things to vote on.). It requires only a simple majority to pass, and if passed, the House Managers (equivalent to prosecutors in a court trial) must be named and present the charges to the senate and report back. The Impeachment of Bill Clinton had an unusually long delay as the charges were voted on on December 19th, 1998, but due to the the Christmas Recess, the Senate's trial did not start until January 7th and a few motions made were prior to the trial. Ultimately, the Clinton was acquitted on February 12, 1999. This is a fairly typical length of time for a trial once underway in the U.S. though most trials have a longer pre-trial phase. Because the matter is about abuses of power in office any impeachment could have a profound effect on the nation if sat on by the House to avoid using prior to the re-election, it's generally favored to settle the matter asap.

More likely, the Democrats will wait until 2020 elections are over, as they could render the need for impeachment and the ability to successfully do it may change with the results. Trump could lose a second term or the Democrats could lose the House (losing needed votes to charge) or pick up the Senate (Picking up votes to convict, though it's unlikely they will achieve super majority, if not impossible).

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Consider the following questions:

  1. But if the House sits on the impeachment articles, then what will give them enhanced subpoena powers?

    The only practical basis on which impeachment would give the House enhanced subpoena powers would be during the trial in the Senate. And really, that would mostly consist of having the Chief Justice preside over the trial, since the only body that could over rule the Chief Justice would be the Supreme Court. So the Chief Justice would rule and the Supreme Court would review. This might well drop out additional stages of review, like the circuit courts.

    As is, the subpoenas would be fought in a regular district court, appealed to a circuit court, then to en banc review, and finally to the Supreme Court. But my point is that sitting on articles of impeachment doesn't get past that for them. They would actually have to prosecute the impeachment.

  2. What would stop Donald Trump or people speaking for him from saying, "Well, if they were so sure that he deserves impeaching, why don't they send the articles of impeachment to the Senate?"

    Again, an unfinished impeachment is a failed impeachment in effect. It leaves Trump in office and able to accuse them of a witch hunt. Proof? If it weren't a witch hunt, they'd impeach him and present the evidence to the American people. Since they aren't doing that, obviously they don't have the evidence. They are simply playing political games.

    Supporters of impeachment will disagree. But until Republicans start becoming supporters of impeachment, that won't matter. It would take twenty Republicans in the Senate to vote to convict to actually remove Trump from office. And that's assuming that Joe Manchin and Angus King vote to convict.

So even if they could sit on the articles of impeachment, what would they gain? They'll have taken a partisan vote for no effect. This will annoy Trump supporters and some people on the fence about Trump. And it only highlights the fact that the Democrats could impeach but were not doing so to Trump opponents. Who then may see no reason in voting against Trump and for Democratic candidates. So Democrats might lose the House and see Trump re-elected. Which is of course the argument against impeaching at all.

One comment suggests that impeaching would make the administration more willing to provide evidence. But I think that the reverse would happen. If the administration thinks that giving the House more information increases its actual legal jeopardy, it will stonewall even more. Trump might win an impeachment trial now. If he gives more information that Democrats can use against him, he might lose. So I would expect him to resist even more strongly as the threat rises.

Another point is that while trying an impeachment may make the subpoena powers quicker, it also makes them narrower. Right now the House may subpoena anything it wants. The restrictions will be based on their legal authority to investigate. In a trial, subpoenas are restricted to information relevant to the trial. So if they want, for example, Trump's tax returns, they would have to link the tax returns to the impeachment charge. It's not immediately clear to me that John Roberts (the Chief Justice) will interpret that expansively.

It would be quite natural to say that tax returns have nothing to do with obstructing justice. It would also be quite natural to say that the president has some form of privilege when communicating with lawyers in his employ.

Another problem is that if they impeach and fail, it would be hard to impeach later if they found better charges. Because the Republicans will have mostly chosen their sides at that point and there is little political value in switching.

If Republican voters think that Trump is innocent, then Republican politicians who vote to impeach are likely to lose their primaries. Thus Republican politicians really need voters to be at least willing to believe the charges before they can vote to convict on them. Now, a successful impeachment is likely to shift some voters' minds. So it doesn't necessarily need to be a majority saying to impeach. But they need there not to be a clear majority against impeachment.

They also have the problems of

  1. Establishing an underlying crime for which Trump is obstructing justice. As is, the main charge is that he was obstructing the Russia investigations. But he was exonerated of crimes in that investigation. They would want to charge him with this crime as part of the impeachment.

  2. Establishing that he was overreaching his authority. There's an argument that Trump couldn't obstruct justice by firing Comey because Trump had the right to fire Comey. That it was improper for Comey to investigate Trump after the inauguration because that oversight power is held by Congress. It is Congress that should have been investigating Trump, not Comey and the FBI.

  3. Establishing that the reason Trump took various acts (like firing Comey) was to obstruct the investigation. If Trump says that he fired Comey because Comey's too tall, that's not obstruction of justice.

They certainly haven't established an underlying crime. Trump was specifically exonerated on the charge that Mueller was investigating. This may be enough for some Republican Senators to vote against impeachment in and of itself.

The argument that he was within his rights is a bit of a problem regardless. Republican Senators will have to think long and hard about precedents around that as well as the impact on their own careers (voting for impeachment reduces their support among Republicans without necessarily increasing their support among Democrats and independents).

For most Democrats, saying "I don't believe Trump" is cheap. They can say that with no electoral harm. For Republicans, saying "I don't believe Trump" could subject them to a primary challenge or weaken their results in the general (from a lack of turnout by the base).

How this will play out politically is hard to guess. There haven't been enough presidential impeachments to set a pattern. The more recent one strengthened the president after his party was near unanimous in standing with him. That's the Democrats' number one fear. If they don't have enough votes, trying and failing may actually strengthen Trump, as it did Clinton.

In the one case where an impeachment threat led to the president leaving office (Richard Nixon), he resigned. So we don't know how the trial would have played out. After impeachment, Trump could be like Clinton and end up stronger. Or like Nixon with almost everyone convinced of his guilt. Or he could be like Andrew Johnson and skate through.

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