This column, from the weekly opinion piece MATTER OF FACT, first appeared in the Home Reporter and Spectator dated October 31, 2019
On Wednesday, Oct. 23, dozens of House Republicans stormed a closed-door hearing where an impeachment inquiry deposition was scheduled to begin. They echoed the complaints of the president, who has bemoaned that the process of impeachment is being conducted in secret, his side doesn’t have an opportunity to question witnesses, and he is being denied his right to confront his accuser.
The problems with those contentions are that the first two are completely untrue, while the latter is something he is simply not entitled to. He either doesn’t understand the aspects of constitutional law at play here or he is hoping the public doesn’t and won’t question him.
Impeachment is the word everyone seems to use to describe the entire process in general, but we actually haven’t even reached that phase. Although impeachment is not a criminal proceeding, if we made a comparison to that process, the initial investigation is still underway. We’re currently in the first fifteen minutes of an episode of Law & Order, where the detectives are still gathering evidence and speaking to witnesses.
For Presidents Nixon and Clinton, there was either a Special Prosecutor or an Independent Counsel who conducted this initial phase and, as in any such investigation, that person didn’t share evidence with the subject, nor allow witnesses to hear other witness testimony before providing theirs.
Robert Mueller did serve as Special Counsel for the investigation into Russian interference in the 2016 presidential election and any related matters that stemmed from it, but the House did not move forward with impeachment proceedings when his work concluded. It is doing so with respect to issues related to the Ukrainian affair and being that there is no special appointee to conduct an investigation, the three House committees with oversight over the matters in question are performing that function.
And that brings us back to the 30-plus Republicans who stormed a secure facility, cordoned off to protect classified information. The three committees whose members were allowed to be in that room include 47 Republicans. Those GOP committee members can be present for all depositions and get equal time to ask questions.
The claim that this is all being done in complete secrecy without an opportunity for the other side to participate is preposterous. In fact, Republicans currently have more access to the information being gathered than members of Congress loyal to Presidents Nixon and Clinton ever had at this point.
The committee Chairs leading the inquiry have already stated that public hearings will follow. And when the impeachment inquiry finally concludes, only then will the House move to consider whether to begin the actual impeachment process.
Being impeached is the equivalent of being indicted, so the impeachment phase is akin to what a grand jury does. And to be clear, both constitutionally and in practice, grand juries are conducted in secret and the accused do not have sixth amendment rights to confront witnesses accusing them of wrongdoing. In actuality, impeachment is more favorable to an accused President than the grand jury process is to a criminal suspect.
The claim that this is all being done in complete secrecy without an opportunity for the other side to participate is preposterous.
If the entire process leads to articles of impeachment being drawn up and the House committee votes in favor of those charges, it would go to the entire lower chamber for a full vote. If a simple majority votes in favor, the President is impeached. This means, in essence, he will have been indicted, with a trial in the Senate to follow.
Being that removal requires a two-thirds vote of the Senate and it is hard to imagine any scenario where at least 20 Republicans vote in favor, it has been a foregone conclusion that impeachment is as far as this can go. Some posit that being acquitted in the Senate trial would be a win for President Trump.
If that’s the case, why are Republicans storming closed-door committee hearings? Why are they telling Americans they are shut out of proceedings when 47 of them can attend? Why are they demanding the president have access to be involved with witnesses and accusers that they know he has no right to engage with at this early stage?
