What a week in the Trump impeachment saga!
I remain adamant in my contention that the present Democratic impeachment effort represents a tremendous overreach — and I feel buttressed in making that contention by House Speaker Nancy Pelosi’s announcement this week that she will not hold a House-wide vote soon to formally kick off impeachment proceedings — but national polling does appear now to be solidly (if still relatively narrowly) in favor of impeachment.
As of October 17, 2019, FiveThirtyEight indicates that Americans now support impeachment by a 5.3% margin. This represents a dramatic flip from barely over one month ago, when Americans opposed impeachment by a whopping 15% margin. It is likely that White House Chief of Staff Mick Mulvaney’s comments this week — which may be reasonably interpreted as offering some support for Democrats’ “quid pro quo” theory of impeachment — will redound against the president and perhaps further exacerbate that impeachment polling deficit.
The situation, on the ground, still represents something of a stalemate. Many of those close to the president, such as personal attorney Rudy Giuliani and Defense Secretary Mark Esper, are presently refusing to recognize House Democrats’ subpoenas; on the other hand, nettlesome former U.S. Ambassador to the European Union Gordon Sondland testified this week in a way that may cause great discomfit to the administration. Specifically, Sondland threw the problematic Giuliani under the bus.
In any event, more broadly speaking, Pelosi seems deeply reluctant to hold a House-wide impeachment authorization vote. The fact that Pelosi seems scared to do so will, in a bit of circular logic, only further incentivize the dilatory tactics of Trump’s inner circle in terms of defying subpoenas.
The current default position from the White House and its inner circle seems to mirror the apocryphal line once attributed to President Andrew Jackson: “[Chief Justice] John Marshall has made his decision. Now let him enforce it.” There is some historical precedent for this, albeit not much. Per The Washington Post, a congressional sergeant-at-arms has been used — at least once, during the presidency of Herbert Hoover — to detain an obstructionist witness and force him to abide by his congressional subpoena. As the Post accurately notes, “Congress can, after a brief process, detain people who refuse to provide requested information.”
There is something to be said for both sides’ positions, and former Bush administration official and current law professor John Yoo has a terrific op-ed earlier this week at The Washington Post that incisively analyzes this tug-of-war. As Yoo points out, extant U.S. Supreme Court precedent holds that the precise procedures employed during both the House impeachment process and any subsequent Senate impeachment trial represent non-justiciable issues that the judiciary cannot review. But as Yoo also argues and I have previously opined, House Democrats would be politically wise to engage in a more transparent, historically grounded, and overall “fair” — meaning inclusion of basic procedural normal, such as full due process and the ability of the House minority to cross-examine and subpoena witnesses — impeachment process.
Impeachment and conviction of a sitting U.S. president is a radically undemocratic maneuver that overturns the results of a freely held election. True, the Constitution prescribes the impeachment process, but that process ought to be fully transparent and “fair” so as to ensure buy-in from the electorate is as close to universal as possible. At a bare minimum, it would be severely deleterious to democratic norms if most of the citizenry viewed the impeachment process as tyrannical or destabilizing.
The legal standard for impeachment is clear: It is purely political. As Alexander Hamilton explained in The Federalist No. 65, impeachment of a president may be properly considered for all “offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” There is no black-letter legal guideline for what this may comprise; instead, the Constitution’s Framers relied upon Congress exercising prudence in its political judgment.
Looking ahead, it will be fascinating to see whether Pelosi holds a House-wide impeachment authorization vote soon — and whether that planned vote (or lack thereof) affects the dilatory tactics that those close to Trump are currently employing, with respect to witness subpoenaing.