How impeachment should work

The Constitution empowers the House of Representatives to impeach the President, but doesn’t say what procedures the House must use. This leaves the House free to use whatever procedures it chooses.

The Constitution also does not say whether, or to what extent, the President must cooperate with the House when it considers impeaching him. This leaves the President free to cooperate as much or as little as he chooses.

The American people are free to reach whatever conclusions we wish about how the House should proceed on impeachment and about the level of presidential cooperation that is appropriate. In doing so, we should be guided by past precedent and by common sense.

As far as I can tell, the Democratic House wants to deny President Trump anything resembling due process. It seems to view its role as akin to a grand jury with the Senate acting as a regular jury. A suspected criminal has very few rights before the grand jury. His opportunity for due process is afforded at the trial stage.

This model has very little to recommend it, either by way of precedent or common sense, in the impeachment context. The two modern impeachment proceedings — of Richard Nixon and Bill Clinton — weren’t handled this way. In both instances, the House adopted procedures that afforded the president due process.

The procedures approved by the Judiciary Committee for the Nixon and Clinton impeachments stated “[t]he President’s counsel may question any witness called before the Committee.” President Clinton’s attorney questioned Ken Starr when he appeared before the Judiciary Committee and President Nixon’s attorney questioned each of the nine witnesses that appeared before the Judiciary Committee.

The procedures approved by the Judiciary Committee for the Nixon and Clinton impeachments stated “[t]he President and his counsel shall be invited to attend all hearings, including any held in executive session.” President Clinton’s attorneys were allowed to call and question 14 expert witnesses before the Judiciary Committee.

Finally, it’s my understanding that in every prior presidential impeachment inquiry in American history, the full House voted to authorize the inquiry.

So far, it looks like Nancy Pelosi has rejected each of these precedents.

Common sense tells us that the grand jury model should not apply to the impeachment of a president. Grand juries consist of citizens pulled in at random. They routinely indict whomever the prosecutor wants them to. The saying is that the prosecution can indict a ham sandwich.

Following indictment, the case often will be resolved through a plea bargain, without the need for a trial. If there is a trial, it might last for a week or two.

Nothing about this model makes sense in the impeachment context. Congressmen aren’t pulled in randomly off the street. They are the elected representatives of the American people. In an impeachment proceeding, all members of the House should be able to vote on the basis of the fullest, most fairly developed record.

This entails a proceeding in which the president receives due process — one in which his lawyers can attend all hearings, question all witnesses, and call witnesses of their own.

The president, moreover, is not an ordinary criminal defendant. He is the chief executive officer of the U.S. government and commander-in-chief of the U.S. armed forces. He typically, and in this case, was elected president by the American people. He should not be indicted as if he were a ham sandwich.

Impeachment isn’t a trifling matter, it’s a momentous one. It entails a trial that will bring the Senate to a halt. It will divide the nation and suck the oxygen out of all other political and policy discourse. The matter won’t be resolved by a plea bargain or one week trial in some faraway court room.

None of this is an argument against impeaching President Trump. But it does counsel strongly in favor of an impeachment proceeding that is both transparent and fair to the president — one in which he receives due process, including the right to have his lawyers participate fully.

The House should reverse course and implement procedures consistent with a transparent and fair hearing. If it does, President Trump should cooperate.

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