Pelosi's hardball: Impeachment rules anticipate GOP disruption

The House of Representatives will be voting tomorrow on the ground rules of the next phases of the Impeachment of Donald J. Trump, namely the public investigative hearings to be held by the Intelligence Committee and the consideration of the results of the investigation and articles of impeachment by the House Judiciary Committee. The rules are pretty simple, but they are written to play hardball by anticipating GOP obstructionism and disruption.

The public part of the consideration will be conducted in two stages:

Stage One: The Evidence.

The Permanent Select Committee on Intelligence (Chair Adam Schiff) will take public testimony and witnesses. They will then combine the public record with what they have received in private hearings and produce a report, in consultation with the Chairs of the Oversight, Ways and Means, and Foreign Affairs Committees. The Minority of the Intelligence Committee may append a minority report, and any member of the Intelligence Committee may submit additional views. The report will be delivered to the House Judiciary Committee.

Stage Two: The Charges.

Once the Judiciary Committee receives the report from Intelligence, it will then consider the report and if deemed necessary, consider additional testimony and evidence. At this stage of the process, the president will be afforded representation, and he and his counsel will be able to attend all hearings, question witnesses, as well as submit additional evidence and call their own witnesses. Once finished, the Judiciary Committee will then decide whether, and which articles, to advance for impeachment to the full House.

The Rules:

Having experienced the White House’s efforts to block testimony and documents, and worse, having seen the House GOP’s ruthless desire to disrupt the process - including by compromising national security - the House leadership has crafted the rules for these hearings to be fair but tough. The House Resolution setting forth the rules (H. Res. 660) and a set of draft rules by the Judiciary Committee work under three key principles:

  • Creating the environment needed for serious and full airing of the evidence.

  • Granting the minority full rights and the privileges for the president.

  • Anticipating, preventing, and punishing abuse of the process by Trump’s allies

Below are quick summaries and analyses of these three principles.

Serious business: Creating the environment for a full airing of the evidence.

The rules promulgated through HR 660 and the conforming Judiciary Committee draft focus on creating an environment in which witnesses can be questioned and heard in-depth. For this reason, the rules allow the Chair and the Ranking minority member of the committees at both stages of the process to question witnesses for up to 90 minutes at a time. The Chairs further have the flexibility to repeat the lengthened questioning periods, between 5 and 90 minutes. In the events when a Chair chooses to repeat a lengthy questioning session, the ranking member of the committee gets equal time. The questioning under these periods may also be done by majority or minority counsel, as designated by the chair or the ranking member, respectively.

The rest of the committee members will get their usual 5-minute rounds.

Having the longer questioning periods are a welcome departure for the usual ping-pong questioning of 5 minutes at a time from members from alternating sides. By having the longer periods, investigators can carry on longer conversations, provide witnesses with better opportunities to answer questions, without being interrupted by the clock and switching topics every 5 minutes.

Subpoena powers for the minority, privileges for the subject (the president).

Simply put, the proposed rules give ranking minority members of the Intelligence and Judiciary Committees (at the respective stages of the process) the power to subpoena witnesses, documents, and records. There is an important check on this power, and that will be discussed below.

The president and his counsel are invited to all Judiciary Committee hearings, including those held behind closed doors. The president’s counsel may question witnesses appearing before the committee, may call their own, and may request documents and records. Once again, to be discussed below, there is an important check on this privilege.

Remember that impeachment is merely the process of bringing charges, and the House is not bound to give the president any process rights at all. The trial will be in the Senate, which is where the rights of the defendant are important. It is with this fact in mind that I have carefully chosen the word ‘privilege’ for the procedural advantages granted the president.

Trump is not given any role to play in the hearings of the Intelligence Committee, and that makes sense. The intelligence committee is acting as the main investigative body, and the subject of an investigation cannot influence the investigation.

Anticipating, preventing, and punishing abuse of the process.

Republicans have proven that they will obstruct, interrupt, and disrupt. They have shown they will do anything to benefit their taskmaster in the White House, the Constitution and Congress be damned. They are not likely to stop once the hearings go public; in fact, the tantalizing allure of ‘performing’ for the benefit of camera will almost certainly be irresistible. And the need to mount a last-ditch effort to protect a corrupt president? It will be at a fever pitch.

The proposed rules anticipate that, and cuts it off at the knees.

The Republican ranking member will get the right to subpoena witnesses, documents, and records, but only with the agreement of the Chair. Should the chair refuse to consent, the ranking member can appeal to the whole committee, but given majority Democratic control, they are unlikely to get their way.

The proposed rules also use the privileges granted to the president and his counsel as a carrot and a stick. If Trump illegally withholds documents, records or witnesses from the investigation - which, we should point out, Trump is presently doing in writing - Chairman Nadler of the Judiciary Committee is empowered to deny Trump and his counsel any or all of these privileges as punishment.

I believe this is Nancy Pelosi’s version of hardball. The House is warning Trump that it - not Trump - has the power of impeachment under the Constitution, and it will use that power through its rulemaking authority.

There is not a thing either Trump or his allies in Congress can do about it. That must be hard.

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