Jurisprudence

Democrats Can’t Figure Out if They’re Trying to Impeach Trump or Not

Speaker of the House Nancy Pelosi (D-CA) (R) and House Majority Leader Steny Hoyer (D-MD) join fellow House Democrats to mark the 200th day of the 116th Congress on the steps outside the U.S. Capitol July 25, 2019 in Washington, DC.
Nancy Pelosi and Steny Hoyer are plotting an impeachment strategy. Details TBD.
Chip Somodevilla/Getty Images

The House Democrats’ muddled approach to impeachment hit a new level of confusion on Wednesday. In the morning, the second highest ranking member rejected the notion that an impeachment inquiry was underway and then by the afternoon reversed himself.

In order to try to bolster their investigative power, Democrats have argued in court that they have already begun an inquiry into impeaching Donald Trump. Yet at the same time, leadership has rejected the notion that they are considering impeachment. House Majority Leader Steny Hoyer’s latest flip-flop came just one day after Politico reported that Democratic members have conflicting answers over whether an impeachment inquiry is, in fact, underway. On Thursday, the House Judiciary Committee will vote to set formal rules for its previously informal impeachment investigations.

On Wednesday morning, Hoyer said “no” when a reporter asked him if the House was undertaking an impeachment inquiry.

“The delineation ought to be whether they’re considering a resolution of impeachment,” Hoyer said. “I don’t want to be simplistic about it, but I don’t want to quibble on words either.”

Later in the afternoon, Hoyer released a new statement saying … something else:

I thought the question was in regards to whether the full House is actively considering articles of impeachment, which we are not at this time. … I strongly support Chairman [Jerrold] Nadler and the Judiciary Committee Democrats as they proceed with their investigation ‘to determine whether to recommend articles of impeachment to the full House,’ as the [Thursday] resolution states. It is critical that Congress have access to all of the relevant facts, and we will follow those facts wherever they lead, including impeachment. 

Hoyer is a member of the Bipartisan Legal Advisory Group. That means he would have signed off on multiple lawsuits in which House Democrats have argued that an impeachment investigation is underway in order to press the courts to enforce congressional subpoenas.

The court cases underline the absurdity and danger of the Democrats’ impeachment strategy, such as it is. Last month, the House Judiciary Committee filed a lawsuit in federal court to try to extract testimony from former White House Counsel Donald F. McGahn regarding multiple instances of apparent obstruction of justice by President Donald Trump that were documented in special counsel Robert Mueller’s report. Also citing its impeachment power two weeks earlier, the committee argued in court that it needed access to the full grand jury and investigative materials undergirding that report. The House committee cited its impeachment power 118 times combined in the two legal filings.

Similarly, the House Oversight Committee has successfully argued in court that its investigation into “whether the President may have engaged in illegal conduct before and during his tenure in office” required that courts enforce subpoenas of key Trump financial documents. In that case, a D.C. District Court judge cited the impeachment power in determining that the subpoena should be enforced, saying “[i]t is simply not fathomable that a Constitution that grants Congress the power to remove a President for reasons including criminal behavior would deny Congress the power to investigate him for unlawful conduct—past or present—even without formally opening an impeachment inquiry.”

Trump has appealed that case, using House Democrats’ own statements against them. The administration cited Speaker of the House Nancy Pelosi’s rejection of impeachment to argue that without a formal inquiry the subpoena cannot be enforced. The Department of Justice last month issued an unprecedented amicus brief in that case arguing the same.

Members of House leadership have essentially refused to acknowledge that any impeachment inquiry effort is underway as part of a political calculus to avoid what they think would be a politically divisive and unpopular effort. At the same time, they have promised to investigate the president fully in the face of blatant criminal corruption, only to be stymied by an executive branch and former officials that refuse to obey lawful congressional subpoenas.

As Tuesday’s Politico report on this strategy demonstrated, even House Democrats themselves have gotten confused by the approach. Rep. Pramila Jayapal, a member of the House Judiciary Committee, told Politico, “We have been in the midst of an impeachment investigation,” while Rep. Jim Himes, a member of the House Intelligence Committee, said, “No, we’re not in an impeachment investigation.”

Politico further reported:

Some see the muddled messaging as a strategic boon — it allows moderate Democrats to sidestep politically explosive questions about impeachment while permitting progressives to insist they’re aggressively hammering President Donald Trump.   

Under this rationale, the refusal to acknowledge impeachment publicly while arguing in court that it’s ongoing offers the best of both worlds, allowing Democrats to investigate and build the case against Trump without the politically dangerous label of impeachment. Perhaps, though, it will actually result in the worst of all worlds: Democrats look like cowards to their base, Trump voters will still accuse them of unfairly persecuting the president, and they’ll lose critical court battles that prevent any proper investigation or oversight from taking place.