Published by The Lawfare Institute
in Cooperation With
As the House Judiciary Committee holds its first hearing under procedures adopted in October guiding the ongoing impeachment inquiry, it is worth assessing how this stage of the impeachment process will differ from the last portion, which took place under the direction of House Intelligence Committee Chairman Adam Schiff. The Intelligence Committee is finishing up its impeachment investigation and passing the baton to the Judiciary Committee, which is now tasked with deciding whether to write articles of impeachment against the president. The latter committee is holding a hearing today, Wednesday, Dec. 4, to hear from four constitutional scholars. But other than that, much remains in flux.
Schiff’s promised report on L’Affaire Ukrainienne has only just been released. (Lawfare issued its version of a report on the matter last week.) Even then, Schiff has said that after he submits his report to the Judiciary Committee, he may need to submit addendums based on new facts and documents that the Intelligence Committee is still receiving. For their part, Republican ranking members for three of the House committees tasked with managing the impeachment inquiry have already released a Republican staff report that forcefully argues against any wrongdoing by the president.
What’s more, it’s not yet clear what witnesses beyond Wednesday’s four scholars the Judiciary Committee will call. It’s also not clear if the committee will address evidence outside of the Ukraine issue, such as evidence of obstruction of justice in Volume II of the Mueller report. Additional outside developments—like the U.S. Court of Appeals for the Second Circuit’s ruling that the House can access certain of Trump’s financial documents—could mean that yet more conduct by the president could be rolled into the impeachment proceedings. And the question of whether or not the president or his counsel will avail themselves of opportunities provided in the impeachment inquiry procedures to participate in future hearings is a moving target.
Recognizing that a host of questions remain unanswered, what factors will shape what the inquiry will look like as it moves forward?
The House Judiciary Committee differs from the House Intelligence Committee in important ways that are likely to affect how the next set of hearings proceed. First, the Judiciary Committee panel is substantially larger than the Intelligence Committee; the former has 41 members, while the latter has only 22. If witnesses appear, the rules of the House enable each committee member to ask five minutes of questions, and the procedures adopted to guide the Judiciary Committee’s proceedings affirm this rule. Some Democrats rebuffed efforts to restrict the ability of members to use five minutes for questioning as part of the negotiations over the terms of Robert Mueller’s testimony before the Judiciary Committee in July, suggesting that legislators are likely to demand their full allotted time in the impeachment context. Add in the possibility of up to 90 minutes of initial questioning from the chair and ranking member and committee majority and minority counsel, and there’s a real potential for even lengthier hearings than those in front of the Intelligence Committee.
Not only is the Judiciary Committee larger than the Intelligence Committee, but its membership also tends to be more ideologically extreme. Using a standard political science measure of congressional ideology—where negative values correspond to more liberal members and positive values to more conservative ones—we see that the average Judiciary Committee Democrat (-0.45) is more liberal than his or her typical colleague of the same party on the Intelligence Committee (-0.34) and in the chamber as a whole (-0.37); the same holds true for Republicans (0.62, 0.48, and 0.51, respectively). Given that the Intelligence Committee proceedings involved relatively partisan behavior from members who are generally considered moderate—perhaps most notably Republican Rep. Elise Stefanik, who has the fourth most moderate voting record among House Republicans on this measure—a more extreme committee may well produce even more partisanship.
In addition, Rep. Doug Collins, the ranking member of the Judiciary Committee, has particular incentives that differ from his Intelligence Committee counterpart, Rep. Devin Nunes. Collins actively sought an appointment to fill Georgia’s pending Senate vacancy, which will result from the retirement of Sen. Johnny Isakson at the end of the year. Reports indicate that President Trump lobbied for Collins to fill the seat, and additional reporting suggests that even though Georgia Gov. Brian Kemp has selected a different candidate, Collins may run for the seat in the 2020 special election. Collins’s ambition could lead him to be especially aggressive as the top Republican on the committee.
As we wrote last month, the Judiciary Committee has laid out a set of procedures under which it will conduct its impeachment proceedings. To review those briefly:
- The Judiciary Committee may receive presentations on the evidence from counsels to the Intelligence Committee, as well as any of the other four committees participating in the impeachment inquiry (Ways and Means, Oversight and Reform, Financial Services, and Foreign Affairs). Reporting suggests that Intelligence Committee counsel may make such a presentation as soon as next week.
- The Judiciary Committee may also receive a presentation of relevant information from its own counsel.
- The president’s counsel may attend these presentations and, “subject to instructions from the chair,” may ask questions.
- The Judiciary Committee may also call additional witnesses, like those they plan to hear from this week. The same atypical extended period of questioning by staff used by the Intelligence Committee will also be available.
- The president’s counsel may also ask questions in these sessions, though White House Counsel Pat Cipollone has indicated he will not do so for at least the first hearing. Furthermore, the president’s counsel may request that the Judiciary Committee hear from other witnesses, with the committee—presumably by a vote subject to a simple majority threshold—deciding whether to comply.
Assuming the Judiciary Committee proceeds to drafting articles of impeachment after hearing presentations of evidence and from additional witnesses, the committee would then hold what’s known as a “markup” before voting to send those articles to the floor. Congressional committees mark up legislation regularly, giving members an opportunity to propose amendments. In the Nixon and Clinton impeachment cases, the Judiciary Committee chose to extend that markup over several days—six in the case of Nixon and three in the case of Clinton. The Nixon markup included 10 hours of “general debate,” followed by separate consideration for amendment of two articles of impeachment. A third article was successfully added by amendment, while two others were proposed as amendments but were not adopted. The Clinton markup operated under similar procedures. Each member of the committee was granted 10 minutes for an opening statement, and four articles were debated and opened for amendment separately. Two of the four were successfully altered by amendments.
What Questions Remain?
While we have some sense of how things are likely to go procedurally, there are a number of unanswered questions. First of all, how broad will the articles be, and if they extend beyond the material covered in the Intelligence Committee’s report, will the Judiciary Committee call additional fact witnesses? Reporting indicates that there is interest in doing so among some Democrats, with particular interest in potentially addressing the activities discussed in the report issued by Special Counsel Robert Mueller. Other members of the party appear to favor a narrower approach, while a third group—made up of moderates from vulnerable districts—has suggested there may be value in considering articles covering topics beyond Ukraine in part so that moderates can vote against those articles and thus draw distinctions between them and the more liberal members of their party.
If disagreements about the scope of the articles can’t be worked out in advance of a markup, questions will remain about how Democrats might approach amendments to the articles in committee. In 1998, the Judiciary Committee adopted two amendments to the articles during the committee markup, both offered by majority-party Republicans. The first, offered by Rep. James Rogan and approved on a party-line vote, added language to the article concerning Bill Clinton’s false statements to the grand jury. By adding the phrase “one or more of the following” before the explanation of Clinton’s statements, the change was meant to make it easier for members to vote for the article if they agreed that there was proof of any of the perjury charges. The second amendment, sponsored by Rep. George Gekas, proved more interesting. It addressed Article IV, which alleged that Clinton had “misuse[d] and abuse[d]” his office by making misleading public statements, by misleading aides and cabinet secretaries, by “frivolously and corruptly” asserting executive privilege, and by submitting misleading responses to a set of 81 questions sent to him by the Judiciary Committee. As Peter Baker recounts in his book on the Clinton impeachment episode, “The Breach,”
Gekas … had privately been crusading behind the scenes for weeks to drop the executive privilege count on the grounds he did not want to weaken the presidency …. Gekas had drawn little support at first … [but] had slowly picked up allies. Several Republicans had been won over after [White House Counsel] Chuck Ruff testified earlier in the week that he and the other White House attorneys had recommended that Clinton invoke the privilege.
Ultimately, Gekas and most of his Republican colleagues agreed that the privilege count, as well as the components involving lying to the public and to White House staff, should be deleted. All but one Republican supported the revision. (Nine Democrats joined them, with four opposing and three voting “present.”) Could there be a similar effort among the Democratic rank-and-file on the committee to alter the articles in markup? Possibly, but the makeup of the Judiciary Committee suggests that discontent with the articles among Democrats would be more likely to come from the party’s more liberal wing than its more moderate one. Democratic amendments, then, would probably seek to expand—rather than contract as Gekas’s did—the articles. Finding sufficient Democratic support on the committee to add more material at the markup stage could prove challenging.
Even if rank-and-file Democrats on the committee aren’t likely to be successful at adding new material, they may want to avoid the appearance of division and prevent any expansionary amendments from coming up for a vote in the first place. Doing so would likely be a behind-the-scenes task, involving pressure from other Democratic members—as it was for the minority-party Democrats in the Clinton case. As Baker writes,
The same [Democratic] dissidents who thought their caucus had not pushed hard enough for witnesses during the hearings were now pushing to propose amendments to the articles during the markup …. Bobby Scott wanted to amend the articles to describe a constitutional standard for impeachment. Mel Watt and Maxine Waters wanted to know why they were not putting up more of a fight. Julian Epstein, the committee counsel, explained that he had to agree not to have a messy fight over amendments in order to ensure a vote on censure [that occurred during the markup] …. The senior Democratic committee members endorsed Epstein’s no-amendments strategy. They could not improve the articles, so it was best simply to point out their flaws. “Maxine, what do you want to do?” Barney Frank challenged Waters at one point. “Just because something’s out there, you don’t have to shoot at it.”
Assuming the Judiciary Committee successfully reports one or more articles to the floor, amendment opportunities will likely be more limited at that stage. There are several specific procedural options for considering articles on the House floor, but they generally allow a simple majority to limit amendment opportunities significantly.
In terms of the president’s strategy, a looming question is whether the president’s lawyers will choose to participate in future hearings. On Nov. 29, Nadler sent Trump a letter asking if his counsel intends to observe the proceedings, ask questions, request the introduction of additional evidence or appearance of additional witnesses, and/or make a closing presentation to the committee; the request carried a deadline of Dec. 6. The White House has already indicated the president’s counsel will not participate in the Dec. 4 hearing. Even if the president’s lawyers do indicate they intend to participate in future proceedings, however, the Judiciary Committee procedures allow Nadler to preclude that involvement if “the President unlawfully refuse[s] to make witnesses available for testimony or to produce documents requested” by the committees involved in the inquiry. It’s unclear whether, or under what circumstances, Nadler would exercise that prerogative at this point.
The stakes are high, and what happens next in the House’s impeachment proceedings may have long-lasting consequences. Politically, control of the White House and Congress in 2020 could be influenced by how the impeachment unfolds. Procedurally, the House may be setting new precedents that will almost certainly be looked to by future members of Congress who are considering bad conduct by future presidents. Permitting a lack of cooperation by the president, and a refusal by his political appointees to submit to basic fact finding even in the face of validly issued subpoenas, would itself be a problematic precedent for Congress if left unchallenged. Finally, and perhaps most importantly, what comes next could affect whether the majority of Americans view the president’s conduct—soliciting a foreign government to announce an investigation into his domestic political rival and conditioning official governmental acts on fulfillment of those solicitations—as worthy of opprobrium or as perfectly fine.