RUTHFULLY YOURS

House finally will vote on an impeachment inquiry, but who will that help? Andrew McCarthy

Posted By Ruth King on October 29th, 2019

https://thehill.com/opinion/white-house/467858-house-finally-will-vote-on-an-impeachment-inquiry-but-who-will-that-help

Well, it’s about time.

House Speaker Nancy Pelosi (D-Calif.) reluctantly alerted House Democrats on Monday that a resolution authorizing the impeachment inquiry they have been conducting for weeks will be introduced this week. This is a welcome step in terms of legitimacy. 

Before caving, the speaker’s note to her caucus mulishly maintains that the star chamber which Democrats have been running — mainly through Chairman Adam Schiff’s (D-Calif.) Intelligence Committee, with its closed hearings and selective leaking — has been perfectly proper. This throat-clearing is both telling and misleading. 

Pelosi purports to regard as “baseless” the Republican claim “that the House of Representatives’ impeachment inquiry” has not been authorized by a vote of the House. Ironically, she observes that the “Constitution provides that the House of Representatives ‘shall have the sole Power of Impeachment.” That is the whole point — the Constitution vests the impeachment power in the House as an institution, not in the speaker or the majority party. The House only acts as an institution when it votes — exactly what Pelosi has sedulously avoided. 

The speaker relies on a dubious ruling issued last week by the federal District Court in Washington — specifically, by Chief Judge Beryl Howell, who was appointed to the bench by President Obama after serving for years as a top aide to the hyper-partisan Sen. Pat Leahy (D-Vt.). Chief Judge Howell directed that grand jury materials from the Mueller investigation be made available to Congress despite the fact that the text of the governing rule limits disclosure to investigations attendant to judicial proceedings. The Trump administration is appealing the decision. 

According to Pelosi, in rationalizing her ruling, Howell “confirmed that the House is not required to hold a vote” authorizing an impeachment inquiry. That distorts what the judge said. Howell observed that the historical record on the matter was mixed — there have been inquiries into whether judges should be impeached that have occurred without a floor vote, while impeachment inquiries involving presidents have had them. But the court’s bottom line was that, because the Constitution puts the House fully in charge of impeachment, a court has no authority to tell the House how to proceed. That is not a judicial endorsement of the Democrats’ position; it is an acknowledgment that a judge is powerless in the matter.

Informed commentators do not contend that Democrats lack the raw power to conduct their inquiry. The six standing committees involved in the inquiry have legitimate oversight authority over intelligence matters, foreign relations, the Justice Department, etc. Even if there were no impeachment inquiry, they could demand testimony and documents pursuant to that oversight authority. The game here is that they have labeled those demands an “impeachment inquiry,” and they are using the information gathered to consider potential articles of impeachment, but they are taking pains to spare their members — particularly Democrats who hold seats in Trump-friendly districts — the need to cast an accountable vote that might hurt them in the 2020 election.

The problem with this legerdemain is that impeachment is a political, not a legal, matter. Democrats may have the raw power to conduct an inquiry without taking a vote, but that does not mean the public will see their investigation as legitimate. Unless Americans are convinced that the inquiry has been conducted fairly and properly, the articles of impeachment that Democrats are hell-bent on lodging against President Trump will be seen as a 2020 campaign stunt.

That is Pelosi’s fear. She still does not want to make the Trump-district Democrats cast difficult votes. There are more than 40 such lawmakers. If voters in their districts are angered by the impeachment push, it could cost Democrats control of the House.

On the other hand, the public grows suspicious about why Democrats are avoiding a vote. If, as Democrats insist, the president has committed egregious misconduct, they should be proud to vote “yea” on an inquiry. Add to this the Democrats’ choice to proceed behind closed doors, and to withhold witness transcripts while leaking selective portions to their anti-Trump media friends. The process oozes political calculation, not good faith.

So now, for all the chest-beating about how no vote is legally necessary, Democrats have resigned themselves to its political necessity.

If Democrats really do have a viable impeachment case, endorsing the inquiry by a vote of the full House can only help them — at least if it is accompanied by guarantees of transparency and due process: public hearings, disclosure of the transcripts of interviews done in secret, an opportunity for the president’s counsel to cross-examine witnesses and present his own evidence.

Naturally, if the Democrats’ impeachment case is thin, sunlight will not help it. The president’s allies are thus cheering a vote that will put Democrats on record. But it’s a two-edged sword.

Pelosi would not hold a vote if the Democrats’ tactics had not had the intended effect of moving public opinion in their direction. According to the Real Clear Politics national average, Americans now favor an impeachment inquiry by a comfortable margin of 51 percent to 42 percent — and, ominously for the president, the number favoring removal from office is increasing, even among independents(RCP average: plus 2.5 percent in favor). Speaker Pelosi figures that, at this point, a vote to endorse the inquiry will not damage too many Democrats’ electoral prospects, even though the polls are still hostile to the inquiry in pro-Trump districts.

In addition, President Trump and his allies have relied on the House’s failure to vote as a justification for the administration’s refusal to cooperate with the inquiry. If the House now votes to endorse the inquiry, the pressure will be on the White House to produce the information demanded. If the president fails to comply, the Democrats will look more justified in adding an article of impeachment that accuses the president of obstructing the House.

It only takes one such article to impeach and remove a president. It is highly unlikely that 20 Republican senators will ever join the Democrats to form the two-thirds’ Senate supermajority that the Constitution requires for removal. Yet, while Republican senators generally do not believe any presidential missteps on Ukraine are serious enough to warrant removal, they might feel differently if the White House obstructs the House after a floor vote has legitimized the impeachment inquiry.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His latest book is “Ball of Collusion.” Follow him on Twitter@AndrewCMcCarthy.

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