The irony of the ongoing impeachment saga in the House is that while Democrats initially charged their Republican colleagues with raising process complaints to divert attention from the facts of the case, at each step of the way Democrats have come around to addressing those complaints to lend greater legitimacy to their proceedings.
They have done so for good reason: impeachment is a political process that cannot be divorced from the breach of public trust that justifies removing a public official from office. Public faith and confidence in that process is the key to ensuring widespread support for the outcome.
It’s not that Republicans had constitutional grounds for complaining about the way in which House Democrats were proceeding –there are no set ground rules for how the House should move to impeach a president. A simple majority vote by the House, even without a preliminary committee inquiry or findings, is all that is required to send an impeachment resolution to trial in the Senate. But prior impeachment precedents, combined with an implicit public demand for political and procedural fairness, dictates a measured and deliberative approach in the House before throwing everything into the lap of the Senate.
All this is not to say that Democrats were attempting to circumvent procedural fairness rules in order to expedite an impeachment trial in the Senate before the 2020 presidential campaign officially begins in February –though that would be their clear preference. However, the House has already adopted a House resolution (H. Res. 660) on Oct. 31 outlining rules for impeachment proceedings in the House Judiciary Committee, including a guarantee of full presidential representation and participation. So, no slam dunk was being contemplated that would leave the president and his defenders out in the cold.
However, just as House Republicans initially complained about the closed process for taking depositions from potential public witnesses, when that process ended and moved to public hearings under the auspices of the House Intelligence Committee, Republicans continued to complain that the president was not allowed to be represented in any those proceedings.
When that stage was completed and the Intelligence and other investigative committees forwarded their findings and recommendations to the Judiciary Committee for formal impeachment deliberations, the president, through counsel, initially declined to exercise the right to participate on grounds that the full scope of the hearings and list of witnesses to be called had not been yet been disclosed.
When one considers the ever-changing nature of process complaints, after previous complaints and demands had been addressed, it becomes clear that the White House counsel’s defense strategy is one of representation without participation –that is, one of representing the client’s disdain for the whole process by remaining aloof from attempting to rebut the testimony of witnesses.
Put another way, the strategy turns on its head the adage that “The best offense is a good defense,” opting instead for the mantra, “The best defense is a sit-down strike.” That approach is a surefire way to turn-off public sympathy over the unfair treatment previously meted out to the president. Instead, we see the president acting as if he is above the supreme law of the land which includes a remedy for removing him from office for gross misconduct.
One can only go so far in portraying a duly constituted impeachment proceeding as a partisan witch hunt, not worthy of acknowledging or properly responding to, before the perception sinks in that the Constitution is being flouted and badly disfigured by an attempt to claim all governmental powers are lodged in a single branch of our tripartite system. If there is one thing the American people understand it is that our system is founded on a separation of powers maintained through checks and balances. When that is thrown severely out of kilter, our representative democracy is in grave peril.
For the president to avoid accountability through the people’s representatives in Congress by erecting a wall of process complaints and blocking access to subpoenaed administration witnesses and documents is a blind defense that will ultimately crash into its own wall of denial and burn. While process is at the heart of a thorough and fair impeachment proceeding, how that process is used and perceived to present the underlying facts and evidence that constitute potential grounds for impeachment will determine whether the public accepts Congress’s final verdict.
Don Wolfensberger is a fellow at the Woodrow Wilson Center and the Bipartisan Policy Center, former staff director of the House Rules Committee and author of “Changing Cultures in Congress: From Fair Play to Power Plays.”