Jurisprudence

Nancy Pelosi Is Right: Democrats Should Not Vote on an Impeachment Inquiry Yet

The president’s obstruction isn’t stopping anytime soon, and there are many downsides to holding the vote.

Nancy Pelosi answers a question at the U.S. Capitol on Oct 2.
Nancy Pelosi answers a question at the U.S. Capitol on Oct 2.
Win McNamee/Getty Images

Following nearly three years now of essentially complete obstruction of congressional oversight, the Trump White House has thrown up another roadblock for the House. Arguing that the House of Representatives has failed to hold a formal vote to open an impeachment inquiry, the White House has declared that it will not cooperate with legislative requests.

There are compelling reasons as to why a formal vote authorizing an impeachment investigation could be beneficial for House investigators, the bulk of which are process-based. For one, moving more unequivocally into such a formal impeachment proceeding could strengthen lawmakers’ litigation posture. Courts like to see efforts to compromise before rushing to litigate and on Tuesday, D.C. District Court Chief Judge Beryl Howell even made the point to House lawyers seeking the release of Justice Department documents, namely, that taking such extra steps would make her decision “easier.” Put simply, taking the vote would rob the administration (and the House minority) of one of its chief objections to compliance.

Another argument for holding the vote would be to establish ground rules for the inquiry, including procedural protections for witnesses, participation opportunities for the minority party, and a role for administration attorneys. Ranking members Doug Collins on the Judiciary Committee and Jim Jordan on the Oversight Committee have made this argument, referring to the subpoena powers conferred on the minority during the Clinton impeachment. Empowering this particular congressional minority has obvious downsides: They have undercut investigations and used their powers in bad-faith ways for months. But Americans value due process, and at some point it may make sense to give the president’s allies a chance to make their case through such measures.

A vote would also give House members another opportunity to show that they are following the accommodation process, working with the executive branch to get the requested documents and evidence. Indeed, the House has taken great care to show its methodical process at every step of its numerous investigations into President Donald Trump and his alleged misuse of presidential powers. For example, in the House Judiciary’s lawsuit trying to compel former White House counsel Don McGahn to testify, the committee carefully illustrated the steps it took to give McGahn numerous opportunities to comply, and to make clear that turning to the courts was the last resort—not the first. The House has bent over backwards to appear reasonable, even when it was clear that witnesses were not appearing and documents were not forthcoming. By holding a vote, then, Speaker Nancy Pelosi would be able to argue that they have done everything the White House asked, and thus the White House should now comply with Congress’ inquiry.

But if you believe that this White House is going to start cooperating meaningfully with Congress, even after a formal vote authorizing an impeachment investigation, I’ve got a bridge to sell you. Fortunately, Pelosi does not seem to be interested in buying any such real estate from Trump and company.

Ironically, the benefits of having the vote show just why such an action would be pointless in getting the White House to budge: If the reason for having the vote is to show in court that the House Democrats appear more reasonable and accommodating, then such an action (accurately) presumes that the White House will still refuse to comply, forcing the committee chairs to continue to turn to the judiciary.

What’s more, a vote to authorize an impeachment inquiry gives no additional powers to Congress to either investigate or impeach the president. The White House’s argument likely stems from the fact that in the Clinton and Nixon impeachments, the House first voted to open an impeachment inquiry. However, Article I, Section 2 of the Constitution simply rests in Congress “the sole Power of Impeachment.” It is silent as to what that process may look like, and no magic words, votes, or committees are required. Nor do the House rules require such a vote. As leading impeachment law scholar Michael J. Gerhardt testified before Congress:

There has been no tradition, rising to the level of a constitutional command, that requires impeachment resolutions to be approved by the House to authorize this Committee to initiate an impeachment inquiry—or to proceed in any particular way. As long as the Committee functions pursuant to the House rules (and its inherent authority), it is functioning properly.

There are numerous arguments cautioning against holding a vote to authorize a formal impeachment inquiry.

First and foremost, as noted, is the futility. There is no indication that the White House would comply with a congressional investigation—with or without a formal vote. Time and time again we have seen the contempt with which this White House views congressional oversight. (As Trump has said: “We’re fighting all the subpoenas,” and “I don’t want people testifying.”) The insistence on a vote is likely no more than another delay tactic to give the White House time to come up with another excuse. The list of grievances in the intemperate eight-page letter by White House counsel Pat Cipollone on Tuesday is further proof, if anyone needed it, that the demand for a vote is a placeholder for other reasons the administration will provide as a basis for further stonewalling the impeachment process.

Holding a vote now may also limit the efficacy of the subpoenas already churning through the justice system—or at least give Trump’s litigators an argument for starting over. House committees have already argued to federal judges that an impeachment investigation is underway, regardless of a formal vote to open one, necessitating Congress’ access to witnesses and documents. If a vote is taken now, the president’s lawyers are likely to argue that the prior requests were thus not included in the impeachment inquiry.

Such a vote may also limit the House investigators in what they can investigate. As we have seen repeatedly, this president appears determined to commit more abuses of power time and again. Last month we learned that—just one day after Robert Mueller testified to the House regarding allegations against the president for his role in encouraging a foreign adversary to interfere in a U.S. election—Trump got on the phone with the Ukrainian president and encouraged him to help interfere in the next election. Rather than learn from his prior behavior, he became emboldened. Because of this increasingly reckless conduct, it is important that the House not limit itself to abuses of power already known, as all indications suggest the impeachable conduct will continue. It is self-defeating to suggest the full House needs to vote in favor of an impeachment inquiry to move those processes along.

Finally, a vote requires difficult political choices. Forcing members to vote now will put Republican members and more vulnerable Democrats on the spot. Recent reporting has shown some Republican lawmakers to be seriously troubled by Trump’s apparent abuses of power in his dealings with Ukraine and China. More evidence of Trump’s playing fast and loose with the American national security apparatus may drive some of them to ultimately vote for impeachment. But that’s not going to come just yet.

Similarly, many red and purple district Democrats may be waiting to see what evidence emerges from the House investigations before determining whether impeachment is warranted. A party-line vote now—or one with some Democrats voting against—gives Trump ammunition to call the investigation partisan and to further refuse to cooperate. The House impeachment inquiry seems to be doing just fine making progress right now; it is driving the national conversation and putting pressure on members of the House and Senate. A vote might interfere with that progress.

Given the pace and power of the current proceedings, it seems clear that Pelosi was right to hold off calling for impeachment when certain Democratic members of the House began advocating for it in 2017. Likewise, she looks wise to have resisted going all in after the Mueller report came to light, arguing that the country needed more information. Since that time, significantly more information about Trump’s abuses of power and contempt for our system of government has become clear. And the public support for impeachment grows with new pieces of evidence.

House members should not be forced to pre-commit to voting for impeachment—not when the case for it becomes stronger with each passing day, and certainly not just because the White House appears to believe that the lack of a vote somehow means impeachment isn’t real. Pelosi has shown us that it is already plenty real as a matter of law and policy—only time will tell if the history books will agree.

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