By Elad Hakim
Now that Adam Schiff’s House Intelligence Committee has completed “Phase 1” of the impeachment inquiry, he has handed the baton to Rep. Jerry Nadler (D-N.Y.) and the House Judiciary Committee, who will handle “Phase 2.”
In Phase 1, House Democrats attempted to establish a factual basis under which to impeach President Donald Trump. In Phase 2, Nadler will attempt to explain the legal basis for impeachment and to convince the Senate and the American public to support the House’s impeachment push.
Given that Schiff’s efforts failed from a substantive perspective, Nadler’s efforts should also be rejected from a legal perspective.
In a letter to President Trump, Nadler stated:
“Under House Resolution 660, the House of Representatives has approved certain privileges for you in the House Judiciary Committee while the Committee considers whether to recommend articles of impeachment to the full House. For your reference, a copy of the resolution and related procedures are attached to this letter. These procedures, and the privileges afforded to you therein, are consistent with those used by the Committee in the Nixon and Clinton impeachments. …
“The Committee intends this hearing to serve as an opportunity to discuss the historical and constitutional basis of impeachment, as well as the Framers intent and understanding of terms like ‘high crimes and misdemeanors.’ We expect to discuss the constitutional framework through which the House may analyze the evidence gathered in the present inquiry. We will also discuss whether your alleged actions warrant the House’s exercising its authority to adopt articles of impeachment.”
From a procedural standpoint, Nadler’s attempt to paint this phase as transparent in nature simply doesn’t cut it.
As Nadler makes clear in his letter, the purpose of the inquiry is to analyze the history and the law behind impeachment and to determine whether the president’s actions warrant impeachment.
While Nadler invited the president and his attorney to participate in the hearing, this invitation came too late. In essence, Nadler is trying to level the playing field after House Democrats engaged in a unilateral and partisan investigation of the president and rejected virtually all requests from House Republicans to question specific witnesses during the public phase of the initial impeachment inquiry.
Nadler’s “olive branch” is nothing more than a ruse, as he cannot undo past injustices. It’s analogous to telling a criminal defendant that he’s free to appear at trial and to defend himself, although a large part of the investigation has already been completed and most depositions have been conducted without his (or his lawyer’s) knowledge or participation.
According to Article 2, Section 4 of the Constitution, a president can be impeached if he or she commits treason, bribery, or other high crimes and misdemeanors.
The act of impeachment was initially proposed to provide a legal and non-violent method to remove a rogue leader. The exact nature of what constituted an impeachable offense went through changes.
For example, some proposed that it was enough to establish that a president was guilty of malpractice or a neglect of duty in order to remove him. Others proposed that impeachment was appropriate if the president was guilty of “maladministration.” This latter standard was rejected because it established too low a threshold to remove a sitting president. Eventually, the “high crimes and misdemeanors” terminology was agreed upon.
In Federalist Paper 65, written by Alexander Hamilton, Hamilton stated:
“A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”
According to Hamilton, impeachment was reserved for those offenses “which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”
Interestingly, Hamilton noted that such offenses would seldom fail to agitate the entire community. In other words, an offense that met this threshold would typically upset the community at large as opposed to one particular political party or group.
Using this standard alone, Trump’s conduct does not qualify, as his support among Republicans is strong, as is his support among Republicans in Congress. Even some congressional Democrats and Independents don’t feel that impeachment is warranted.
The meaning of “high crimes and misdemeanors” was further clarified in former President Richard Nixon’s case. According to Politifact:
“During the Nixon impeachment process, the House Judiciary Committee staff argued that ‘high crimes and misdemeanors’ historically meant offenses like ‘misapplication of funds, abuse of official power, neglect of duty, encroachment on Parliament’s prerogatives, corruption, and betrayal of trust.’ They added that in Britain, impeachable offenses ‘had no roots in the ordinary criminal law.’
“Indeed, the three articles of impeachment approved by the committee involved offenses in line with this definition: obstruction of justice, abuse of power, and defiance of subpoenas.”
In Nixon’s case, Nixon was accused of obstructing justice (Article I) by taking steps to prevent, hinder, or obstruct the investigation into the unlawful entry into the headquarters of the Democratic National Committee in Washington, D.C. to obtain political intelligence. In Article II, he was accused of abusing his power. Finally, in Article III, he was accused of failing to comply with various subpoenas without lawful cause or excuse.
Trump’s “case” is not analogous to Nixon’s, nor should Democrats rely on Nixon’s case as precedent.
Unlike Nixon’s case, there has been no evidence to date that Trump has obstructed justice or unlawfully failed to comply with properly issued subpoenas relative to the Ukraine investigation.
From the inception of the impeachment inquiry, Trump has asserted that the House’s impeachment inquiry has been unconstitutional, fundamentally unfair, contrary to constitutionally mandated principles of due process, and against congressional precedent. These arguments raise legal and constitutional issues and are not unlawful or trivial in nature.
Moreover, despite several weeks of testimony from various Democrat-selected witnesses, there has been no evidence that Trump conditioned payment to Ukraine on Ukraine’s willingness to investigate Hunter and/or Joe Biden (no quid pro quo).
Nadler might also to rely on former President Gerald Ford’s opinion relating to impeachable conduct.
According to Ford, “An impeachable offence is whatever a majority of the House of Representatives considers it to be at a given moment in history.”
While Ford is correct in a general sense, his statement is somewhat oversimplified. Impeachable conduct is not whatever the House says it is. Rather, the impeachable offenses are specifically enumerated in the Constitution (treason, bribery, or other high crimes and misdemeanors). While House Democrats can decide how to interpret these offenses, they would be wise to consider past precedent. If they do so, they will realize that impeachment is not warranted here.
The upcoming hearing in front of the House Judiciary Committee is one last effort (by House Democrats) to convince Republican senators and the American people to support their impeachment push. Phase 1, led by Schiff, failed to do so.
As former Independent Counsel Ken Starr recently told Fox News, “The testimony from witnesses in the House Democrats’ impeachment hearings has come ‘nowhere close’ to laying out impeachable offenses.”
Without any compelling evidence proving an impeachable offense, the upcoming inquiry really serves three purposes from a Democratic perspective.
First, it gives Democrats another opportunity to garner support for impeachment, which is unlikely. Second, it gives House Democrats more time to decide whether or not to present articles of impeachment, which they shouldn’t do. Finally, and to the extent possible, it allows House Speaker Nancy Pelosi (D-Calif.) and Schiff to “save face” if Democrats decide not to pursue impeachment. Unfortunately for them, this, too, seems unlikely.
Elad Hakim is a writer, commentator, and attorney. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, The Algemeiner, The Western Journal, American Thinker, and other online publications.
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