Impeachment Inquiry or Just Plain Oversight? It Depends on Who You Ask

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WASHINGTON — An impeachment investigation to potentially try to remove the president of the United States for high crimes and misdemeanors would seem to be fairly clear-cut.

But as the House Judiciary Committee pushed ahead this week with a wide-ranging investigation it said was designed to determine whether to recommend impeaching President Trump, Democrats found themselves tripped up again and again by a seemingly straightforward question: Is what they are doing an impeachment inquiry, or not?

The Democratic chairman of the Judiciary Committee, where impeachment cases are typically built, insisted it is, and hastened on Thursday to add that he sees no more room for debate. But his Republican counterpart is just as adamant that it is not. And the Justice Department is trying to capitalize on the confusion to argue the panel has no right to secret evidence relevant to its case.

Those looking on, including some Democrats, have been left scratching their heads.

Which answer is right could matter a great deal for the Democrats and President Trump, though maybe not for the reasons one might think.

Here’s what you need to know about the history of impeachment and the arguments both sides are making.

Democrats are deviating in key ways from the way the House launched the two presidential impeachment inquiries of the modern era.

When the Judiciary Committee was investigating whether to impeach President Richard M. Nixon in the 1970s and Bill Clinton in the 1990s, it ultimately sought and received explicit authority to conduct each of those inquiries by a vote of the full House.

In this case, the Judiciary Committee led by Representative Jerrold Nadler, Democrat of New York, has neither asked for nor received such a vote.

Instead, Democrats used a court filing and news conference in July, on the day they were leaving Washington for a six-week summer recess, to declare that an investigation that had been going on for months should now be considered primarily one “investigating whether to recommend articles of impeachment” against Mr. Trump.

The panel did cast its first impeachment-related vote on Thursday, but while that action may have drawn attention to their work, it did not change the nature of the probe. The action merely adopted formal procedures to govern the inquiry that was already underway.

Mr. Nadler laid out the committee’s views at the outset of Thursday’s vote on investigative procedures, but only after swatting away some of the questions about its work.

“Some have said that, absent some grand moment in which we pass dramatically from ‘concerned about the President’s conduct’ to ‘actively considering articles of impeachment,’ it is hard to know exactly what the committee is doing here. Others have argued that we can do none of this work without first having an authorizing vote on the House floor.”

Not so, he continued. Nothing in House rules or the Constitution, he said, requires any such action. As long as it is considering articles of impeachment, Mr. Nadler contended, the committee has all the authority it needs to designate that work an impeachment investigation or inquiry.

In the Nixon and Clinton cases, Democrats argue, a House vote was necessary to grant the committee special powers it did not already possess during those periods under the standing rules of the House, like the ability to issue subpoenas and conduct depositions. Under the current House rules, the committee already has all of those authorities.

Mr. Nadler and the lawyers have also pointed to past examples of the House Judiciary Committee acting on its own authority to open inquiries and recommend articles of impeachment against judges and other officials and not drawing any complaints.

Under normal circumstances, the distinction might not matter. It does this time because Democrats have asked for the help of the federal courts to obtain grand jury material related to the special counsel’s Russia investigation and speedily secure the cooperation of witnesses. To get it, they have to convince a judge in the coming weeks that they have met the criteria for an impeachment inquiry.

The list of former Trump administration officials whose testimony the committee is seeking seems to grow by the day; on Friday, an aide confirmed that lawyers have initiated negotiations to get Jeff Sessions, the former attorney general, to appear. Those talks were first reported by The Washington Post.

Representative Doug Collins of Georgia, the top Republican on the Judiciary Committee, argued over and over at Thursday’s committee hearing that without a House vote authorizing it, the inquiry is merely regular oversight work dressed up to look more menacing than it is. Democrats were choosing to not formalize their inquiry because they do not have the votes they need to do so, he said.

“The ambiguity — the confusion — is a product of my colleagues’ own making, because there is an easy way to know exactly whether this committee is in impeachment proceedings,” Mr. Collins said. “It’s called a vote — a vote of the full House of Representatives.”

The Republicans argue that the Judiciary Committee does not inherently have the authority to conduct a presidential impeachment investigation on its own. The standing rules of the House explicitly outline the panel’s jurisdiction, including the impeachment of judges, but they do not mention presidential impeachments, proving that the two are different, Republicans aides say.

The Justice Department echoed some of those arguments on Friday as it sought to thwart the panel in court. Citing Democrats’ conflicting statements about the nature of the inquiry, the department argued to a federal judge that the Judiciary Committee’s request for grand jury information should be rejected.

The Constitution gives little guidance on impeachment aside from the most basic facts: the House can vote to charge presidents or other officials, and the Senate holds a trial to determine whether to remove the officeholder. It does not dictate what impeachment proceedings should look like, and is completely silent on what, if any, preliminary investigative steps must be taken.

Historians of impeachment and lawyers who have worked for the House or studied its rules have taken that to mean that the chamber is free to decide how to handle the investigative work related to an impeachment inquiry as it sees fit.

“Whatever procedure the House adopts for this impeachment or any other is really up to it,” said Michael J. Gerhardt, a constitutional law professor and an impeachment scholar at the University of North Carolina. “There is no formula.”

Raymond W. Smock, the House’s official historian in the 1980s and 1990s, agreed, noting that there was a long history of rewriting the rule book around impeachment.

But Democrats’ strategy is not without risk. House parliamentarians, nonpartisan aides who help interpret and enforce the rules of the House, would likely make a more conservative recommendation, people who work with them said. If lawmakers want to ensure that a judge will recognize what they are doing as impeachment, it would be better to follow the most well-worn path.

“They can say they are doing it, but what will a judge think, given the precedent in the past?” said Michael Conway, who served as a Judiciary Committee lawyer in 1974 during the Nixon impeachment.

House Democrats have good reasons to avoid a House vote that might land them on firmer legal ground. Unlike in the Nixon or Clinton cases, when the House voted overwhelmingly and on a bipartisan basis to authorize investigations, a vote now would almost certainly be strictly partisan, potentially sapping the investigation of momentum. It could also deepen rifts among Democrats, given that many moderates in conservative-leaning districts have been reluctant to embrace the idea of impeachment, and there is no guarantee Democrats could secure a majority on the House floor.

Republicans argue that Democrats are moving forward with a not-quite-legitimate impeachment simply to spare their moderates from taking a potentially difficult vote.

“You can have your impeachment and deny it too,” Representative Tom McClintock, Republican of California, needled on Thursday.

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