Impeachment: an enlightening recent history and the Rules

Let’s start with this New York Times opinion piece by Michael Conway, who worked as counsel for the House Judiciary Committee on the Nixon impeachment case: “What Will It Take for Democrats to Unite Behind Impeaching Trump?”

It begins:

Many Democrats are arguing harshly that the House is wasting an opportunity to open an impeachment inquiry against President Trump. Their point of support: Watergate-era House Democrats. In their telling, House Democrats were always united in support of impeaching President Richard Nixon.

But that isn’t true. I was there, and in fact initially they were as divided in their approach to addressing President Nixon’s conduct as House Democrats are today about starting an impeachment inquiry.

Liberal Democrat House members in 1973-74 pressed for an impeachment inquiry of President Nixon, but they met resistance from Democrat leadership.

Sounds familiar, doesn’t it?

Mr. Conway gives us the details about that internal party debate, and does so calmly. He had intimate knowledge of what went on then, and of the people involved. He makes a direct comparison between Tip O’Neill’s management of the impeachment process — both moral and political — with Nancy Pelosi’s.

Back then in ancient history there were even impeachment “zealots”:

In April 1974, a New York Times article identified “perhaps seven impeachment zealots” on the House Judiciary Committee — all Democrats — who would “like very much to indict the president for high crimes and misdemeanors.” But, as the report added, the “surprising thing” about that committee was that it did not “contain more pro-impeachment zealots” — 18 of the 21 committee Democrats had liberal voting records.

Even without the parallels to today’s impeachment arguments, Mr. Conway’s piece is a fascinating, easy-to-read history of why there was a Democratic reluctance to initiate an impeachment investigation against Nixon, and precisely why and how it was overcome.

(By the way, one “Michael Conway” of today’s House Judiciary Committee is Norm Eisen.)

Mr. Conway mentions one factor that caused me to look up the House of Representatives  rules — some of them flexible — for initiating an impeachment inquiry. (I found what I thought might be the actual rules but they were daunting, so this link is to a New York Times article on the process for impeachment).

I’ve been somewhat bewildered at the anger directed at Pelosi and, particularly, Jerry Nadler, for what seems to be perceived as their intransigence and/or political “weakness” in failing to charge forward into impeachment.

I put myself in their shoes and, even without their deep knowledge of governance, can see some of the problems they face regarding impeachment, even as they proceed lawfully in the investigation against a thoroughly lawless executive.

As Conway makes clear, one big factor in going forward is public opinion, which itself makes an impact upon Congressional representatives. And, without a big majority of the House members, an impeachment resolution would fail. (There are currently 235 Democratic congresspeople, 197 Republicans, one independent — presumably Amash — and two empty seats. And a couple of GOPers, currently under criminal indictment, will probably be convicted, so who the hell knows what the House will be made up of?)

Current reports have 80 Democratic representatives in favor of impeachment. That is not a majority. That’s one big reason I decided to read the House Rules. I’ve been wondering whether the Judiciary Committee can, without a vote from the entire House, formally proclaim the initiation of an impeachment investigation.

There are, as I’ve pointed out, clear reasons why Nancy Pelosi’s famous gift at counting heads should be relied upon. What would be the point of launching a formal investigation without the majority of your members on board?

Yeah, I know, the argument is: an investigation will convince the public so it’ll also convince the members. I doubt that’s a sensible way of conducting what is essentially a public grand jury presentation — the grand jury here being the House of Representatives. I don’t think any adept prosecutor would go to a grand jury without a case she knows she can win.

And for all my agitated, furious friends and relations and Twitter acquaintances, you are not the Public. That is to say, you can’t claim — as a number of people do in New York Times comments — that the majority of the country wants Trump impeached.

You don’t speak for the majority of the country. Polls can make estimates but the only real number is the number of elected representatives who agree that Trump should be investigated toward an impeachment vote now.

I emphasized the “now” because no one — and no, not Nancy Pelosi — has said “We’re never going to impeach Trump.”

Let’s go back to Michael Conway’s piece on the Nixon impeachment process:

After the Watergate cover-up began unraveling in mid-1973, a cadre of Democrats on the Judiciary Committee started pressing for President Nixon’s impeachment. Representative Robert Drinan of Massachusetts, another Judiciary Committee member, filed an impeachment resolution on July 31, 1973, as televised hearings before a Senate committee exposed the Watergate cover-up.

It focused on President Nixon’s decision to launch a secret bombing campaign in Cambodia during the Vietnam War.

Tip O’Neill, a House Democratic leader who became speaker, made sure that the chamber would not act on Mr. Drinan’s resolution at that time. “Morally, Drinan had a good case,” Mr. O’Neill wrote in his memoir, “Man of the House.” “But politically, he damn near blew it. For if Drinan’s resolution had come up for a vote at the time he filed it, it would have been overwhelmingly defeated — by something like 400 to 20.”

Tip O’Nell understood the difference between moral and political victories. In the end, he (and we) got both.

So back to the House Judiciary Committee Rules. Could Jerry Nadler ask his committee members to vote on beginning an official impeachment inquiry without going to the full House?

Yeah, maybe. Here’s what Charlie Savage (who has a law degree from Yale; I want to read legal stuff written by lawyers) and Nicholas Fandos (Harvard undergrad, no law degree but he’s writing with Savage) published in the Times:

Before the House decides whether to impeach a president, the House Judiciary Committee first can hold hearings to investigate whether that step is warranted. This can include calling witnesses, collecting documents and debating whether the behavior in question constitutes an impeachable offense, which the Constitution only ambiguously defines.* The inquiry would culminate in the panel either voting to recommend that the full House approve one or more articles of impeachment, or deciding not to make any such recommendation.

* That’s what the Committee is doing right now. So you want to yell that nothing’s happening? If you must, but don’t do it in my ears.

The full House voted for resolutions directing the House Judiciary Committee to open the inquiries into Mr. Nixon and Mr. Clinton. But it is not clear whether that step is strictly necessary, because impeachment proceedings against other officials, like a former Federal District Court judge in 1989, began at the committee level, congressional aides say.

It may not be “strictly necessary,” but for the reasons I’ve only sketched out, it’s necessary. And, as Nancy Pelosi and a bunch of others well know, you don’t ask for a full House vote if you’re not going to win it.

So. It’s government. It’s complicated. It’s happening.




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