Today I posted a column addressing a false story circulating on MSNBC and other outlets that my testimony in the Clinton and Trump impeachments are in contradiction. In fact, the testimony is so close that I could be charged more with self-plagiarism than self-contradiction. However in the hearing there was another clearly false statement put into the record by the Democratic members: that I am “demonstrably wrong” in saying that this could be the fastest or shortest impeachment in history. While the effort is clearly designed to encourage people not to seriously consider my criticism of the record and process in this case, a little history — and my actual testimony — might be helpful.
The standard story being promulgated by critics is that the Clinton and Johnson impeachments were faster. That is not correct, though in my testimony I stressed that, with regard to Johnson, it depends on how you count the days. In order to suggest that there was a factual errors, critics used a transparently false construction: they used the date of the passage of impeachment resolutions rather than the underlying investigations to measure the time of investigation. It is ironic since the Democrats themselves are maintaining that they have been doing an “impeachment inquiry” well before their formal vote. Just as the legislative history of a bill can include hearings before the bill (or prior bills), we usually refer to “impeachments” as the during of the controversy and investigation leading to the adoption of articles of impeachment.
I understood that the word “impeachment” can be used in different ways, which is way I stressed that this depends on how your count the days. In both my oral testimony and written testimony, I referred to Johnson as the outlier and the question of how one uses this term.
What is particularly notable is that this false account knowingly evades the obvious point — and relevant measure. I testified that President Trump could be impeached for non-criminal conduct like abuse of power but that the record is woefully inadequate due to contradictions, missing witnesses, and unaddressed defenses. My point is that a few weeks and a dozen witnesses is a comparatively wafer-thin record to impeachment like Nixon and Clinton. The fact that one member waived around a binder to say the current record is not thin was bizarre. She would have had to literally drive a truck into the room to show the record in either modern presidential impeachment case of Clinton or Nixon.
The point is obviously the underlying investigations not the arbitrary dates of the resolution and passage of article of impeachment.
Here is the typical false account:
“The two other times presidents were impeached — Andrew Johnson in 1868 and Bill Clinton in 1998 — the impeachment process happened faster than the current process against Trump.
Johnson was impeached for removing Edwin Stanton as secretary of war without congressional approval. The entire process took less than a month.
According to a timeline of events, Johnson removed Stanton as secretary on Feb. 21, 1868. By Feb. 24, 1868 — just three days later — the House passed a resolution impeaching Johnson. And by March 4, 1868, the House delivered articles of impeachment to the Senate. That’s less than two weeks.
As for Clinton, the House voted on Oct. 5, 1998 to launch an impeachment inquiry. By Dec. 19, 1998, the House impeached Clinton. That’s 75 days.”
As I mentioned in my testimony, Clinton was the result of a long investigation by the Independent Counsel and, rather than having the same witnesses testify again, the Congress sent the articles to the floor and then the Senate. It was an exhaustive investigation.
It is really Johnson that is the only question of a faster impeachment. I testified “This impeachment would rival the Johnson impeachment as the shortest in history, depending on how one counts the relevant days.”
My testimony never adopted the measure of the technical resolutions. My point was the the underlying investigations (and thus fact gathering) have been longer. The passage of the resolution — as shown in the Trump case — are irrelevant to the foundation of the articles in the evidence-gathering process. So just in case you are interested in what I actually said in the hearing, here is what I wrote (and largely repeated in my oral testimony):
“The only non-modern presidential impeachment is an outlier in this sense. As I discussed below, the impeachment of Andrew Johnson was the shortest period from the underlying act (the firing of the Secretary of War) to the adoption of the articles of impeachment. However, the House had been preparing for such an impeachment before the firing and had started investigations of matters referenced in the articles. This was actually the fourth impeachment, with the prior three attempts extending over a year with similar complaints and inquiries. Thus, the actual period of the impeachment of Johnson and the operative record is debatable. I have previously discussed the striking similarities between the Johnson and Trump inquiries in terms of the brevity of the investigation and narrowest of the alleged impeachable offenses.”
Here is my full testimony: