House Democrats took the monumental step on Thursday of voting to officially formalize their impeachment inquiry into President Donald Trump.
The vote marked the apotheosis of weeks of heated debate between Democrats and Republicans over the legitimacy of the move.
Ever since House Speaker Nancy Pelosi first announced the investigation last month, the president's congressional allies have drilled down to these points:
- The impeachment inquiry is a sham because it was never officially voted on.
- The closed-door hearings violate Trump's right to due process because they don't allow him to cross-examine witnesses or present his own testimony.
"In a court of law, this would be declared a mistrial," House minority whip Steve Scalise said earlier this week. "This impeachment charade has been a tainted process from the start. [House Intelligence Committee Chairman Adam Schiff] has spent weeks blocking due process & leaking misleading info to the liberal media to fit his phony narrative. Their resolution codifies this sham."
But there's a fallacy in those claims: there's no rule that says an impeachment inquiry has to be voted on in order to be "legitimate." There's also no constitutional or legal requirement that the president has to have access to closed-door depositions as they're taking place.
Democrats notched a huge victory affirming that when a federal judge ruled last week that the impeachment inquiry is valid, legitimate, and doesn't require a formal vote.
In fact, many legal scholars say the House impeachment inquiry is somewhat like a grand jury proceeding in a criminal case.
Laurence Tribe, a constitutional law professor at Harvard Law School and frequent Trump critic, asserted in a tweet that Trump's demand to be allowed to cross-examine witnesses is "like a defendant arguing that the prosecution's failure to invite him and his counsel to participate in the grand jury proceedings leading to his indictment somehow 'poisons' the trial itself. Totally crazy."
Others echoed that view.
"In a court of law, the trial wouldn't even have started yet, so this is really dumb," Mimi Rocah, a former federal prosecutor from the Southern District of New York, tweeted in reference to the GOP argument that Trump was being robbed of due process. "House is in the investigation/grand jury phase which always takes place behind closed doors. The open hearings & trial part" will take place in the Senate.
Even legal experts on Trump-friendly Fox News have pushed back on his and Republicans' claims.
Whitewater independent counsel Ken Starr "handed a tremendous amount of evidence to the House Judiciary Committee," Judge Andrew Napolitano, a Fox News legal analyst, said on the network last week. "How did he generate that evidence? In secret. What did he do? He put witnesses on before a grand jury … Congressman Schiff is, in my opinion, following the rules of the House."
But in voting for the resolution formalizing the impeachment inquiry on Thursday, Democrats gave Republicans everything they wanted.
Key aspects of the resolution formalizing the impeachment inquiry:
- Allow the president and his attorneys to cross-examine witnesses.
- Allow Schiff to hold open hearings.
- Allow for the ranking member on the Intelligence Committee, GOP Rep. Devin Nunes, to call for witnesses to be invited or subpoenaed to testify.
- Allow the Intelligence Committee to publish redacted transcripts of closed-door depositions.
- Direct relevant committees to report their findings to the House Judiciary Committee.
- Direct Schiff to compile a report that summarizes the inquiry's findings and deliver it to the House Judiciary Committee so it can determine whether to recommend articles of impeachment.
Democrats relented to "eliminate a distracting talking point" from Trump and his supporters
That said, there are unique considerations in an impeachment inquiry because although it's largely conducted like a criminal investigation, the process is inherently political.
Louis Michael Seidman, a professor of constitutional law at Georgetown University, told Insider that comparing impeachment to a criminal grand jury proceeding is inexact because impeachment is "sui generis," or unique under the law.
"The rules that the House has put in place provide far more protection for the accused than criminal defendants have before grand juries, but they are in line with how previous Congresses dealt with the Nixon and Clinton impeachments," Seidman said. "There was a need to put in place rules of the road before the proceedings move on to the next stage," which will presumably include public hearings. "The rules strike me as sensible and fair, although I'm confident that the President and his supporters will deny this."
Barbara McQuade, a former federal prosecutor from the Eastern District of Michigan, agreed, telling Insider that although the Constitution has no explicit requirements on how to handle an impeachment inquiry and the House was not mandated to implement any of the rules it did, Democrats likely relented to "eliminate a distracting talking point for President Trump and his supporters."
"In the parallel world of criminal law, a defendant does not get to participate in the investigative stage of a criminal case. His rights to question witnesses and present evidence come at the trial stage, which, in the impeachment realm, would be the trial before the Senate," she added.
"But," McQuade said, "because impeachment is not just a legal proceeding, but also a political proceeding, perhaps it is advisable to provide extra protections to give citizens additional assurances that the process is fair."
According to Keith Whittington, a professor of politics at Princeton University, "If the House wants to assess the strength of the case for impeachment, hearing the criticisms — either in public or in private — would be helpful in doing that,"
Historically, the House has used both public and private proceedings for impeachment.
Some investigations, including those of former presidents Bill Clinton and Richard Nixon, had a public phase that included open hearings and an opportunity for the minority to raise concerns. But others have largely taken place behind closed doors.
Whittington said that overall, having public hearings will help Democrats shape public opinion and sway House members who are on the fence about impeachment. They'll also give the president and his supporters the chance to argue that an impeachment isn't justified, which could help House Democrats prepare for an eventual trial in the Senate.