Preliminary note. I will be on a panel discussing impeachment next week in Santa Barbara:
So you can expect a bunch of posts this week on impeachment as I do my homework to prepare.
This morning, the House Committee on the Judiciary just voted on this resolution.
I’ll start with a summary of the document, then offer analysis. (Feel free to scroll down for the analysis that begins with the question, “Is this legal or political?”)
The document opens with a timeline of the impeachment inquiry so far:
March 4, 2019: The Committee issued discovery requests for its investigation “into the alleged obstruction of justice, public corruption, and other abuses of power by President Trump, his associates, and members of his administration.”
May 8: The Committee recommended that the House hold Barr in contempt for refusing to comply with a subpoena.
June 11: Passed Res. 430 (430 authorized the Chairman to initiate or intervene in any judicial proceeding before a federal court to petition for to petition for disclosure of information, and affirming the duty of Barr and McGahn to comply with subpoenas. More on that here.)
July 10: The Committee authorized subpoenas for grand jury information and conduct hearings with McGahn.
July 26: The Committee filed an application with the D.C. District Court for release of grand jury material. Nadler issued procedures governing Member access to grand jury information.
August 7: Committee filed a lawsuit to enforce its subpoena power against McGahn.
August 22: In a letter requesting chairs of other committees to share information they have obtained, Nadler noted the committee’s authority and intent to conduct an investigation to determine whether to recommend articles of impeachment.
Now, on Sept. 12, the committee adopted a resolution stating that:
- Nadler may designate any full committee or subcommittee as part of the impeachment investigation.
- An additional hour is to be provided for questioning witnesses, divided between the parties.
- Questions during the additional hour can be conducted by “Committee staff, as designated by the Chair and Ranking Member.”
Translated: Staff lawyers can follow up with questions to get past political speeches and grandstanding.
- Information obtained is considered “executive session material” unless otherwise determined by the Chair in consultation with the Ranking Member.
- The Chair may issue additional procedures governing access by other non-committee members to executive session materials.
From the context and this document, I gather that this just means that material acquired in an executive session is protected in some manner, with special rules applying for access. I also understand Executive sessions to be closed sessions.
President’s counsel may respond in writing to information and testimony presented to the Committee in open session.
(Trump will think this means that he should respond in writing on Twitter. HA HA)
The Chairman, after consulting with the Ranking Member, may invite the president’s counsel to review and respond in writing to executive session materials.
Now for the fun part: The analysis.
Bonus: This section will help prepare you for the Honorary Bar Exam.
Question: Is this resolution legal or political?
Answer: Both It’s legal because procedure is important. Fair procedures say: “This is not a Kangaroo Court.”
Fun fact: Civil Procedure was Ruth Bader Ginsburg’s favorite class in law school because procedure is the “vehicle for fairness and justice, with rules that must be carefully neutral.” (Source: “Interview with Ruth Bader Ginsburg,” Academy of Achievement, Aug. 17, 2010.)
This resolution tells us that evidence will be gathered privately, and Trump will have the chances to respond, privately and later in public.
The Dems don’t want their proceedings to look like Trey Gowdy’s Benghazi debacle where the GOP were targeting a political opponent.
It’s also political because the resolution makes it clear that impeachment is marching forward and that much work has been going on behind the scenes.
It’s also smart politics to make clear the proceedings will be fair.
Reminder: due process and procedures take time. Kangaroo Courts can happen quickly and even instantly.
One reason many people prefer autocracy is because an autocrat isn’t hampered by procedure, or checks against his power.
To quote Ziblatt and Levitsky, Democracy is “Slow grinding work.”
