Impeachment Inquiry Rules Skewed Heavily Against the President

November 1, 2019 Updated: November 3, 2019

Commentary

Author’s Note: The impeachment resolution discussed below implies that future committee impeachment investigations will be open to the public. Shortly after this article was published, however, Speaker Nancy Pelosi (D.-Calif.) announced that closed hearings in the House Intelligence Committee will continue.

Thus, the resolution’s skewed procedures will not necessarily be mitigated by opening hearings to the public.

* * * *

Under pressure from the public and the U.S. Senate, the House of Representatives has voted to formally authorize its continuing impeachment inquiry. House Resolution 660 purportedly opens the previously secret hearings of the House Intelligence Committee.

But the resolution prescribes procedures heavily and deliberately skewed against the president.

As I have explained, there are at least two reasons the House needs to honor due process standards in its impeachment hearings. The first is that President Donald Trump is entitled to the same kinds of protections afforded other Americans. The second is to ensure the inquiry is careful and complete. Otherwise, the decision that emerges may not be well grounded in law and fact. After all, impeachment of a president is very serious business. Impeachment and removal results in overturning an election, upsetting the legislative/executive balance, aggravating political divisions, potentially damaging America’s foreign policy, and diverting congressional time and energy from other priorities.

Unfortunately, the new House rules fall far short of even minimal due process standards. They prescribe the kind of “hearing” you expect in authoritarian countries, rather than in the United States of America.

The House resolution is divided into four sections. The first authorizes existing committee impeachment inquiries to proceed. The second lays down rules for the Permanent Select Committee on Intelligence, headed by Rep. Adam Schiff (D-Calif.). The third authorizes committees to transfer information to the Judiciary Committee, chaired by Rep. Jerrold Nadler (D-N.Y.). The fourth section prescribes a few rules for the Judiciary Committee.

Here is an analysis of each section in turn:

Section 1

In impeachment inquiries, the House Judiciary Committee usually takes the lead. But Section 1 authorizes no fewer than six committees to run separate investigations.

Why?

The obvious goal is to force the president’s team to fight a six-front war and thereby overwhelm the defense. But the six-committee approach serves another purpose as well: Because the president and his defense team must respond to six different committees coming from six different directions, the administration will have to divide the work among many defenders. In the natural course of things, each defense group is likely to differ somewhat in strategies, tactics, and factual understandings: After all, lawyers seldom agree entirely on how to handle a case. When differences surface, they will give pro-impeachment forces—and their media allies—opportunities to trumpet those differences as “inconsistencies.” Pro-impeachment forces also may try to play off defense groups against each other.

Most Americans are unfamiliar with legal proceedings and many will be unaware of how the impeachment inquiry is structured. They may take the “inconsistencies” charge at face value.

Incidentally, Section 1 characterizes the six committee proceedings “as part of the existing House of Representatives inquiry.” In other words, they can add other committees and proceedings as well—just in case six aren’t sufficient!

Section 2

Among the six committees investigating the president, the Democratic majority apparently sees Schiff’s Intelligence Committee as the most important. Section 2 lays down rules for that committee. Are they fair? You be the judge:

  • The rules grant the president no right to have counsel present during hearings. They grant him no right to cross-examine. They grant him no right to call witnesses in his own defense.
  • The Intelligence Committee normally limits each witness’s testimony to five minutes. But in the impeachment inquiry Schiff can unilaterally increase that time. Thus, he can give more play to witnesses whose testimony he likes and less play to those whose testimony he doesn’t like.
  • Similarly, the new rules allow Schiff to unilaterally increase time for questioning witnesses to as long as 90 minutes. Although the Republicans receive equal time to question, the rule enables Schiff to further manipulate public exposure according to the nature of the testimony.
  • If the Republicans do get a chance to interrogate for more than five minutes, only one GOP congressman may ask the questions: the ranking member, Rep. Devin Nunes (R-Calif.). If the Republicans think another in their group is more qualified to interrogate a particular witness, that’s just too bad—he or she is barred from doing so. This parallels life in some authoritarian countries, where a defendant is denied the right to choose his own legal counsel.
  • The Democratic majority has full power to issue subpoenas and interrogatories. The Republicans have no such power unless Schiff or the Democratic majority agree to each subpoena or interrogatory issued.
  • In hearings that follow due process, a person may call whatever witnesses he deems best. In this inquiry, the Democratic majority has full power to summon witnesses. But Republicans have no right to call a witness unless Schiff or the Democratic committee majority consents.
  • In seeking permission to call a witness, Republicans must submit “a detailed written justification of the relevance of the testimony.” Even if consent is granted, the “justification” requirement gives pro-impeachment forces advance notice, and thus a chance to prepare. They can use that time to investigate the witness, formulate ways to discredit him, develop a cross-examination strategy, and otherwise manipulate the proceedings. Republicans have no corresponding right.
  • Republicans must file their “justification” “within 72 hours after notice is given for the first hearing.” In other words, after the first three days—no matter what happens—they may not even apply for permission to call a witness. Ever.
  • Schiff is authorized to make transcripts of depositions public, but not required to do so. He can make some evidence more available, and some less available, as he chooses.

Section 3

This section authorizes all other committees to share information with the Judiciary Committee.. Presumably this is because the resolution gives the Judiciary Committee responsibility for reporting Article of Impeachment.

Section 4

This section prescribes certain minimal rules for the Judiciary Committee.

Unlike in the Intelligence Committee, the Judiciary Committee is to “allow for the participation of the President and his counsel.” But the rules give him no right of cross-examination and no right to call witnesses.

And as in the Intelligence Committee, Democrats may subpoena witnesses and evidence at will—but Republicans may do so only with the consent of the Democratic chairman or the Democratic majority.

Republicans claim that the Democratic majority is running a corrupt kangaroo court, with a pre-determined outcome. The content of the House rules seems to confirm that assessment.

Rob Natelson served as a law professor for 25 years and is Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver. He is the author of “The Original Constitution: What It Actually Said and Meant” and numerous scholarly and popular articles on impeachment and other constitutional subjects.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

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