Published by The Lawfare Institute
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After two weeks of impeachment trial hearings, the Senate has acquitted President Trump. This outcome was never really in doubt: It was always apparent that there would likely not be a sufficient majority in the Senate to convict and remove the president. The question for Congress, rather, was whether it was worth pursuing an impeachment given that likely outcome. It would have been a mistake to have viewed the impeachment as some sort of Hail Mary pass for ousting a president who remains popular within his own political party and whose party holds the majority of the seats in the Senate. Even so, there were good reasons for moving ahead with an impeachment, primarily as a kind of formal censure and as an effort to reassert important constitutional norms. An impeachment is not a failure just because it ends in an acquittal, but an impeachment process that heightens political divisions without reinforcing the proper limits on the conduct of government officials is not much of a success.
Of course, the Senate did not just acquit the president. It rushed its proceedings in a way that it had never done before, so as to shield the president from the public disclosure of embarrassing details about the conduct of his administration and to spare Republican senators from having to directly confront those details and then vote for his acquittal. How the majority chose to run this trial will likely leave a long shadow over the Senate.
Yet it is worth considering how things played out in the House as well. It now seems difficult to believe that anything the House might have done differently would have significantly affected how the trial played out in the Senate. Deeper political forces were at work that overwhelmed any question of tactics. But the impeachment process in the House was hardly perfect—and the way that process played out made it far less likely, rather than more likely, that Republican or conservative voters, politicians, or activists would accept the Trump impeachment as justified and appropriate.
Two background issues should be noted. First, the impeachment inquiry, which began after the Ukraine revelations, took place against an established political and rhetorical backdrop that could not have been set aside. For Republicans, the well had already been poisoned. No matter how justified the Ukraine inquiry and an impeachment based on that inquiry might have been, the critics of the Trump presidency had already sacrificed their credibility. From the moment that activists made an unprecedented effort to lobby the presidential electors to overturn the results of the general election and embraced conspiracy theories about Russia “stealing” the election, any subsequent impeachment efforts would have been heavily discounted by Republicans. The opposition to the Trump presidency from election night onward has too often seemed like a hammer in search of a nail, and when an actual impeachment inquiry was finally launched it was inevitably tainted by that past.
Of course, Nancy Pelosi was no more capable of controlling those events than were the Republican congressional leaders who have in years past struggled to control the legislators, activists and media figures on the right who have sought to heighten partisan and ideological conflict. The highly visible work of those within her coalition to resist Trump by any means necessary might have helped push the Democratic majority in the House to finally impeach the president. But this work also made it harder for any such impeachment to get a hearing from those on the other side of the political aisle. There are consequences to playing the Resistance.
Second, even a perfectly run and perfectly justified House impeachment inquiry would have been hampered by the scorched-earth strategy adopted by the White House and the House Republicans. It is not a new strategy for an embattled president, or even for this embattled president, to attack the accusers—but Republicans were willing to play it to the hilt. House Republicans were willing to make demagogic, bad-faith arguments in an effort to rally their base to the president’s cause. The White House was willing to engage in unprecedented obstruction in order to stonewall and delay the investigation. No impeachment inquiry could go well in that environment.
But how the impeachment inquiry itself was conducted had an effect as well. Undoubtedly, the process suffered in part from the inherently political nature of the House. As political scientists are wont to emphasize, Congress is a they, not an it. Democratic leaders were cross-pressured by factions within their coalition who were eager to rush ahead with an impeachment and by those who were uncertain and reluctant about the political desirability of an impeachment. The House stumbled through a messy process in part because the majority was uncertain where it was going.
The House also seemed to struggle to contain the egos and ambitions of its own members. When the Ukraine story broke and it became obvious that an impeachment inquiry was on the horizon, Democrats proved unable to make the choices necessary to put the best case forward. Rather than entrusting the inquiry to a single permanent committee or appointing a select committee for this particular task, the Democrats allowed the inquiry to be divided across multiple committees with no clear leadership. Rather than keeping the focus on the administration’s misconduct, the House catered to the political needs of individual members looking to get their own share of the national spotlight. Rather than systematically exposing the available facts and constructing a coherent narrative of events, the House generated a confusion of soundbites and political posturing.
Having begun the investigation without any clear plan for proceeding, the impeachment inquiry lacked both transparency and organization and generated needless procedural puzzles and oppositional talking points. The president’s defense team has made a great deal out of the House conducting depositions in a “basement bunker” closed to the public. Yet not only is there nothing wrong with a congressional process for investigating diplomatic conduct that includes a phase in executive session behind closed doors, but it is the only sensible approach. However, the Republicans were given more of a talking point by the Democrats’ inability to outline a comprehensive plan for how the investigation would proceed. Members of the Democratic leadership themselves struggled to get on the same page on whether and when an impeachment inquiry had been launched, and even when Pelosi was willing to declare that a formal impeachment inquiry had begun, she was unwilling to provide a blueprint for how such an inquiry would proceed.
Some House Republicans might have tried to besmirch the process no matter how transparent it was, but those efforts would have been more obviously ridiculous had there been a clear public plan of action that made plain the phases of the inquiry and the framework within which it would take place. A shadowy, ad hoc process that left even Democratic House members struggling to understand what was going on made it easier to peddle conspiracy theories. Unfortunately, the modern House has increasingly relied on shadowy, ad hoc processes to conduct its business, and the impeachment inquiry reflected that general breakdown of parliamentary practice. Congress is out of practice at engaging in public deliberation on substantively important matters, and the impeachment process showed it.
The Trump administration has been unusually defiant of congressional oversight. It has been willing to muster novel and contradictory legal theories, to deploy creative and aggressive interpretations of preexisting legal theories, and to take advantage of every available stalling tactic to avoid cooperating with Congress. Layered atop these tactical maneuvers has been an extraordinary rhetoric of defiance from the president and from senior administration officials. There was no avoiding the procedural fights this resistance created, but the House made it easier on the White House by failing to clarify its own process. Even when the House eventually took a formal vote to authorize an impeachment inquiry, it muddied the waters about the authority of the various investigating committees to issue their own subpoenas to executive branch officials. If the House had been able to assert at an earlier stage that it was engaged in an impeachment inquiry and centralized that inquiry in a committee clearly authorized to conduct it, the administration’s legal excuses for ducking subpoenas would have been flimsier. The House probably has the better side of the legal argument with the Office of Legal Counsel about the relationship between current House rules and an impeachment inquiry. But the House left the door ajar to making such arguments by purposefully obfuscating the nature of its own investigation and not taking steps to formalize the basis for its subpoenas once the full House had voted to authorize the inquiry.
When the House finally turned to formal impeachment hearings regarding Ukraine, it continued to follow a rushed, haphazard and unclear game plan. Compared to previous congressional hearings of presidential misconduct, the formal impeachment hearings were remarkably thin. The House is by its nature a majoritarian, partisan institution, but at every step the chamber chose to lean into that partisanship. Rather than incorporating the White House into the process at an early stage so as to give the administration room to craft a defense of its actions or explicitly forego the opportunity, the House majority chose to wait and allow the White House to posture as an aggrieved victim of a one-sided process. Rather than pulling in the myriad conservative political figures and legal experts who have been critical of the Trump administration and sympathetic to serious investigations of its misconduct, the Democratic majority chose to play to its base in a single panel of expert witnesses given the task of explaining the rationale for a presidential impeachment. Rather than sharing the spotlight with former Republican Justin Amash, one of the eloquent advocates of impeachment in the House, the Democratic leadership turned inward in selecting Democratic managers to argue its case and framed the impeachment as a partisan effort.
The House had difficulty settling on its understanding of the impeachable offense at issue and so created unnecessary openings for attack. Not only was there lingering uncertainty over whether the House would pursue a narrow impeachment focused on the Ukraine episode alone or draw in other matters of alleged presidential misconduct, but there was also inconsistency in how to characterize the problem with Trump’s actions relating to Ukraine. The uncertainty over how best to characterize the impeachable offense related to the Ukraine episode invited charges that the Democrats were moving the goalposts or could not identify any real offenses at all.
Meanwhile, the second article of impeachment, regarding obstruction of Congress, received little public attention. A charge that would always be less publicly accessible and more technical in nature was left as an effective afterthought. No hearings were dedicated to the issue. No experts were called to contextualize it or explain it. The House Judiciary Committee staff did an admirable job of quickly pulling together a sophisticated report on the articles of impeachment, but the public presentation of the rationale for those articles was sadly lacking. The House managers were left less prepared and less well armed to defend the articles than they could have been—and, even in the midst of the Senate trial, their story was subject to change regarding the legal basis for House subpoenas and the rationale for which subpoenas were issued and which lawsuits were pursued and which were not.
The House sent mixed signals about the need for immediate action against the president. It chose to rush the process of producing articles of impeachment but then ostentatiously refused to deliver the articles to the Senate so as to start the trial. It struggled to identify the strategic goals of the impeachment and, as a result, was left with a mismatch between the facts that could be demonstrated and the cataclysmic rhetoric that was meant to justify the president’s immediate removal.
Many of the issues with this impeachment inquiry are probably not unique to the 116th Congress, and it is doubtful that this will be the last presidential impeachment. A presidential impeachment will always struggle to cross partisan bounds. If we count Andrew Johnson as a Democrat—given that Johnson was a pro-Union Democrat recruited onto Abraham Lincoln’s National Union ticket for the 1864 election and was never fully accepted by the Republicans as one of their own—no senator until Mitt Romney has ever voted to convict a president of his or her own political party in an impeachment trial. Democrats were united in voting to acquit both Johnson and Bill Clinton, just as Republicans were nearly united in voting to acquit Donald Trump.
Partisan opponents of a sitting president will always be the loudest and most visible advocates of an impeachment, inviting charges that agitation for an impeachment is just sour grapes from sore losers. If a presidential impeachment is to be seen as anything other than a partisan effort, it must strive to move beyond this history. That will certainly not be a sufficient condition for convincing the Senate to convict a sitting president, but it is a necessary condition. And it is critical to persuading the general public that the House has done all that it can to justify asking the Senate to take the dramatic step of removing a president before the next election. The House failed to establish that this impeachment effort was anything other than politics as usual. Next time, hopefully, it will do better.