Without an Impeachable Offense, House Democrats Are Using the ‘Impeachment Inquiry’ in an Effort to ‘Create’ One—Obstruction

October 11, 2019 Updated: October 11, 2019

Commentary

Rep. Adam Schiff (D-Calif.) and many of his Democratic colleagues in the House want to impeach President Donald Trump. That’s a fact. The major problem that’s standing in their way is the absence of an impeachable offense.

Realizing this, Schiff and many remaining House Democrats are trying to create one by threatening the president with obstruction of justice each and every time the president or a member of his team objects to one of their requests for their interminable “impeachment inquiry.”

By now, it should be relatively clear that House Democrats are doing whatever they can to prevent House Republicans from actively participating in their supposed impeachment investigation.

Given that the House hasn’t prepared articles of impeachment nor voted on the issue of impeachment, the minority members in the House (Republicans) are, in essence, prohibited from issuing subpoenas, questioning witnesses, or participating in the investigation.

House Speaker Nancy Pelosi’s refusal to follow the proper protocol by having a vote regarding impeachment on the House floor appears to be strategic. First, it prevents any House Republicans from participating in the investigation. Second, it gives House Democrats free rein (so they think) to investigate and to subpoena whomever they choose, and to threaten anyone who objects to their investigatory tactics with obstruction, including the president.

For example, most recently, the Trump administration prevented EU Ambassador Gordon Sondland from testifying in relation to the Ukraine impeachment probe. As a result, Schiff of the House Intelligence Committee, Rep. Eliot Engel (D-N.Y.) of the House Foreign Affairs Committee, and Rep. Elijah Cummings (D-Md.) of the House Oversight Committee issued a statement in which they said, “We consider this interference to be obstruction of the impeachment inquiry.”

Let’s make something clear. The administration’s conduct, in and of itself, doesn’t necessarily constitute obstruction. In this case, for example, the witness wasn’t even subpoenaed to appear. If House Democrats want Sondland to testify, they can issue a subpoena (which they have since done). Of course, this wouldn’t prevent the administration from objecting to the subpoena on various grounds, as resistance to a possible subpoena wouldn’t necessarily constitute obstruction.

As Andrew McCarthy correctly pointed out in The Hill:

“In criminal proceedings, prosecutors demand information all the time and witnesses often resist—just as congressional Democrats encouraged the Justice Department and FBI to resist when Republican-controlled committees were trying to investigate such matters as Foreign Intelligence Surveillance Act abuse. Presumptively, resisting an information request is not evidence of obstruction. It is evidence that the recipient of the demand believes he or she has a legal privilege that excuses compliance. The recipient can be wrong about that without being guilty of obstruction.

“Congressional Democrats know this, of course—many of them are lawyers. They’re issuing partisan letters that pose legally offensive threats, rather than subpoenas, because this is a show, not an impeachment inquiry. Subpoenas don’t require chest-beating about obstruction. Everyone knows they are compulsory, but everyone also knows they may be challenged in court. Such challenges take time, though, and Democrats are in a hurry to close this show after a short run.”

While the House has the right to interpret its own set of rules, this doesn’t mean it can request whatever it wants from whomever it pleases at whatever time it chooses. People, including the president, have the right to contest the House’s conduct and actions, which is exactly what the administration has done in this case.

As Trump pointed out in a tweet:

“I would love to send Ambassador Sondland, a really good man and great American, to testify, but unfortunately he would be testifying before a totally compromised kangaroo court, where Republican’s rights have been taken away, and true facts are not allowed out for the public.”

The president’s point is well-taken and goes to the heart of the matter, which is that the process that House Democrats are following is inherently unfair and violates basic tenets of due process.

In a letter to Pelosi, House Minority Leader Kevin McCarthy (R-Calif.) reminded her of the House procedures that were established by some of her predecessors during the impeachment inquiries of Presidents Richard Nixon and Bill Clinton, which included “co-equal subpoena power to both the Chair and Ranking Member at the committee level”; and “all subpoenas subject to a vote of the full committee at the request of either the Chair or Ranking Member.”

It also included providing the president’s counsel the right to attend all hearings and depositions; present evidence; object to the admittance of evidence; cross-examine witnesses; and recommend a witness list.

In a reply to Pelosi’s response, McCarthy concluded:

“Your proclamations of fairness fall flat when you deny a process that provides it. Simply put, you are failing to meet the basic standards of due process observed by past Speakers of the House. This complete lack of a balanced investigative process underscores that there is no legitimate search for truth here—merely a political messaging campaign.”

While the courts don’t normally interfere with the impeachment process and rules of the different chambers of government, they do protect individuals from abusive techniques, and so on. As such, House Democrats could potentially face an uphill battle should they have to convince a judge to permit such an open-ended and unfair inquiry without first launching formal articles of impeachment and conducting the necessary vote.

No matter how badly the Democrats in the House want to impeach the president by way of a made-up obstruction charge, they shouldn’t be permitted to do so at the expense of the president’s due process rights.

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. 

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