The House Judiciary Committee is about to approve two articles of impeachment as member after member last night declared that time is of the essence. The House is now set to fulfill its pledge to impeach President Donald Trump by Christmas. For some us, the mad rush toward impeachment by the Democrats has been utterly incomprehensible. It is difficult enough to go to the Senate in a presidential impeachment without an accepted crime and on the narrowest basis in history. However, the Democrats know that they have combined those liabilities with the thinnest record of any modern impeachment – a record filled with gaps and conflicts. The Democrats know that this record is guaranteed to fail and could easily justify the Senate holding a trial as cursory as its hearings. Yet, they would prefer guaranteed failure rather than build a credible case for removal. Why? The reasons put forward by House Intelligence Committee Chair Adam Schiff (D-Calif.) and others are not credible and, given the paucity of examination given these claims, it is worth closer scrutiny.
So, to use Stephen Hawkings’ famous construct, here is a brief history of time for impeachment.
So why? The answer to that question will likely occupy historians for decades after this slipshod impeachment is summarily rejected. In the impeachment hearing, I testified that President Donald Trump could be impeached for abuse of power but that the record was facially inadequate and incomplete. I encouraged the Committee to just take a few more months to subpoena roughly ten witnesses with direct evidence and secure judicial orders that I believe would support the Committee on its obstruction article. While I was relieved to see the Committee drop the allegations of bribery, extortion, and other crimes that I testified against, it refused to simply take a little more time to develop a more complete case.
None of the excuses for the pledge to impeach by Christmas are even remotely plausible. They can be divided into two basic groupings: court challenges would take too much time and there is a crime in progress that must be stopped.
No Time To Wait
First, there is the argument by Chairman Schiff in response to the criticism over the short investigation (which even the New York Times has challenged). Schiff insisted that waiting will mean a guarantee of that there will be no impeachment while also guaranteeing that there will be foreign meddling in the 2020 election: “People should understand what that argument really means. It has taken us eight months to get a lower court ruling that Don McGahn has no absolute right to defy Congress. Eight months for one court decision.” As has consistently been the case, no major media outfit seemed interested to fact check that statement. It happens to be untrue.
The House waited until August 7th to go to court to compel McGahn’s appearance. That was roughly four months ago, not eight. It was also filed before the House voted to start the impeachment inquiry on October 31st. Back in January, I testified in the House Judiciary Committee and pushed the Committee to hold such a vote to allow for expedited cases over testimony like McGahn’s. At the time, I warned that the House was running out of runway to get an impeachment off the ground. With such a vote, these cases could have moved at the accelerated pace of an impeachment.
So not only has the House gone two years without opening an impeachment inquiry, it burned over three months without going to court to enforce a subpoena in the Ukrainian controversy. Indeed, a court was close to ruling on such a subpoena in the case of Charles Kupperman, a former deputy national security adviser. Kupperman was ready to testify but simply wanted judicial guidance. The House withdrew the subpoena before the court could rule and this week Kupperman is still trying to keep the case in court to get a ruling against the determined efforts of the House.
In the Nixon case, the White House moved to quash a subpoena for the Watergate tapes on May 1st. Judge John Sirica denied St. Clair’s motion on 19 days later. On May 24th, an appeal was taken to the D.C. Circuit but the case was taken directly to the Supreme Court. Oral arguments were heard on July 8th and a ruling issued only three weeks later. That is three months. That is what can happen when you expedite a matter as an impeachment matter.
The question is why would the House not only refuse to try to secure these witnesses but actually withdraw a subpoena before a ruling in the Kupperman. The December deadline is more logically tied to the Iowa caucuses than any litigation schedule. It is not the judicial but political calendar that appears the pressing concern in this schedule.
This Is An Ongoing Crime Spree
The second argument is that there must be action now because President Trump is actively seeking to undermine the 2020 elections. Chairman Schiff declared “The argument, ‘why don’t you just wait’ amounts to this: ‘why don’t you just let him cheat in one more election? Why not let him cheat just one more time?'”
Rep. Eric Swalwell further declared that the House must act because this is a “crime spree in progress.” Rep. David Cicilline similarly declared that time was of the essence because this is a “crime in progress.” Likewise, Rep. Cedric Richmond (D, La) explained that they cannot wait because “this is a crime in process” and this is a 911 moment. It makes for riveting rhetoric but it is detached from any objective view of the facts, even if you object to to the call and request for an investigation. What is the ongoing crime in Ukraine? The aid has been paid. Moreover, how does rushing an incomplete impeachment case to certain failure stop an ongoing crime? These members are pushing forward a half-formed case that will be easily to dismiss – and calling it “tough on crime.” Finally, the Johnson, Clinton, and Nixon cases all had recognized crimes, not metaphorical crimes. Yet, those cases were based on long investigative periods that produced massive and comprehensive records.
What is equally concerning is that this claim of a “crime spree” is based not just on the request for investigations in Ukraine, but earlier public statements made by President Trump, including during the campaign. Chairman Jerry Nadler last night said the pattern includes then candidate Donald Trump calling for the Russians to hand over the Clinton emails. That was before Trump took office and it is now being somehow used as part of an impeachment. It is also a comment that Trump and his supporters maintained was a joke. It did seem like a public statement on a campaign trail that was mockery. Now it has been cited as part of this pattern of a conspiracy to invite foreign interference with our elections — a conspiracy that was expressly rejected by the FBI, the Inspector General, and the Special Counsel. This is an example of how this incomplete record quickly breaks down under scrutiny and why the House needs to build an actual not aspirational case for impeachment.
Let’s be clear. Many of us have criticized the references to the Bidens. However, there was no invitation to intervene in the election. It certainly was not akin to the Russian hacking operation in 2016. Many presidents ask for actions that would benefit them politically in an election year. Any request that might benefit a president is not an invitation for intervention or rigging of an election. To portray that as rigging the 2020 election (and to suggest that it is an ongoing crime) is not just hyperbolic but highly misleading. Moreover, this line of argument does not address why a delay of two months would somehow magnify this danger. As noted, the Democrats allowed months to pass without seeking subpoenas for witnesses like John Bolton and withdrew other subpoenas. How would sending an impeachment guaranteed to fail help in any way to stop such intervention? Indeed, what the Democrats are doing would seem to encourage such alleged misconduct by all but forcing an acquittal in the Senate. If you really want to combat such misconduct, you would build this case and seek a vote in the early Spring with a full record.
There is no question that impeachment by Christmas is the ultimate stocking stuffer for many voters. However, this is marketing a known defective product that will not last long outside of the box.