On Wednesday, the House Judiciary Committee will hold its first hearing in the latest phase of the impeachment inquiry into Donald Trump. Based on everything we know about the committee’s past oversight efforts, statements by Republican committee members and the president’s defense team, and the details of the panel itself, one thing seems clear: Compared with the staid and productive fact-finding work conducted by the House Intelligence Committee over the past few weeks, this hearing will almost certainly be a disaster.
If this hearing fails to produce further public momentum for impeachment—or ends up being outright counterproductive—it won’t be entirely the fault of the Democrats in charge of the committee. In many ways, the process and dynamics of the Judiciary Committee have been set up to produce a bad result.
First, the Intelligence Committee has already done all the substantive work of gathering the facts of the Ukraine bribery scandal at the center of impeachment and presenting them publicly. What’s left for the Judiciary Committee is to craft articles of impeachment based on the testimony heard in the Intelligence Committee and a report produced by that committee. That’s it. The committee might also throw in articles of impeachment based on the Mueller report, or on existing news reports about President Donald Trump’s violations of the emoluments clauses, but that work would also not produce any substantive new fact-finding—that is, any breaking news.
Instead, Wednesday’s hearing will showcase four constitutional scholars in a setting where they can walk through the standards and protocols for a presidential impeachment. In ordinary times, this might be a useful exercise in civic teaching. But the Trump impeachment has nothing to do with ordinary times.
The House already tried this approach over the summer, with a trio of educational hearings. The result, for the few people who bothered watching the events, was a series of ludicrous partisan spectacles that only muddied the impeachment question. As Republicans repeatedly pointed out over the course of the three hearings, those panels were useless as a means of moving public opinion—which, with the facts in hand, is supposed to be the principal purpose of this stage of the impeachment inquiry.
During the first panel hearing in June, titled Lessons From the Mueller Report: Presidential Obstruction and Other Crimes, ranking minority member Rep. Doug Collins noted that there were plenty of other forums for the legal experts called—most of whom were TV pundits—to present their opinions. “Here we come with some folks that are some great folks, you’re wonderful on TV, [but] I can catch your testimony on TV,” he commented wryly.
During the second hearing two weeks later, embarrassingly titled Lessons From the Mueller Report, Part II: Bipartisan Perspectives, Collins turned the hearing premise itself into a running joke. “Tomorrow is the official start of summer. It’s time for rerun season,” he said.
And in the third panel hearing in July, excruciatingly titled Lessons From the Mueller Report, Part III: Constitutional Processes for Addressing Presidential Misconduct, Collins noted that the hearing was not going to accomplish anything. “We don’t need to discuss, ‘Is this a constitutional right of Congress to do impeachment?’ ” the ranking member pointed out. “That is exactly what Congress’ right to do [is].”
Wednesday’s hearing is set up to offer more of the same. As Trump attorney Jordan Sekulow said on Monday, “There’s nothing the American people want to hear less than a bunch of overly educated law professors give their advice.”
In the absence of any productive purpose, the hearing will likely serve as an opportunity for Republicans to amplify their unfounded complaints about the impeachment process. The GOP has already telegraphed this will be their approach. Trump’s attorneys over the weekend said they would not be participating in the hearing, decrying it as unfair. On Tuesday, in a Fox News op-ed written with Rep. Russ Fulcher, committee member Rep. Andy Biggs accused Democrats of doing things backward, omitting fact witnesses only to have the scholars “giving us jury instructions before we hear the evidence.”
And crucially, the format of the committee will set it up for failure. During the Intelligence Committee’s fact-finding inquiry, Chairman Adam Schiff took control of the hearings by beginning with 45-minute rounds of direct witness questioning by him and a staff attorney, followed by equal time for Republican ranking member Devin Nunes and the GOP staff attorney, before opening things up for five-minute rounds of questioning for the 22 members on the committee. The House Judiciary Committee is nearly twice as large as the Intelligence committee, with 41 members—24 Democrats and 17 Republicans—set to offer questioning in sprawling free-for-all of a multiplicity of agendas.
In such a contest, the winning side is often the one that can yell the loudest, or—as the New York Times described the Republican game plan—merely the side that can “mire Democrats in a sloppy fight, making the hearings into such a confusing mishmash of competing information that even Republicans troubled by Mr. Trump’s actions see no upside in breaking with him.”
Republicans in the past have had an easy time winning such food fights. That’s partially because they share a unified message—likely helped by the fact that nearly half of the GOP members on the committee, seven of 17, are also reportedly members of the Freedom Caucus. That group is made up of some of the president’s fiercest defenders, including Rep. Jim Jordan, who was the only Freedom Caucus member on the House Intelligence panel—and was only brought on that panel at the start of the current impeachment inquiry to add a more aggressive conservative voice to the committee. Similarly, Rep. Matt Gaetz—who led the storming of the closed-door impeachment depositions by the House Intelligence, Oversight, and Foreign Affairs committees last month—has specialized in turning Judiciary Committee hearings into a carnival.
Finally, Democratic leadership on the Judiciary Committee, particularly Chairman Jerry Nadler, has proved itself inept at stopping the Republican circus. As the Times reported, “Republicans have been quick to weaponize Mr. Nadler’s patience against him in the past, taking advantage of his reticence to simply gavel them into silence.”
Indeed, Nadler has been prone to spending the committee’s time entering into lengthy discursions with his Republican colleagues on the rules of the committee and various factual disputes. Compare that with Schiff, who repeatedly gaveled down rowdy Republican members and explicitly refused to enter into such “colloquies” during his committee’s public hearings. If past is prelude, expect Nadler to allow Republicans to sidetrack the hearing with a series of lengthy and pointless parliamentary inquiries.
Nadler is not aided by his own members in keeping control of the proceedings. When Attorney General William Barr failed to show for testimony about presidential misconduct documented in the Mueller report, to avoid being challenged by a staff attorney, Rep. Steve Cohen led a group of members in a cornball stunt featuring a rubber chicken and a bucket of fried chicken. Barr’s refusal to appear was an act of grotesque cowardice, the launch of Trump’s full-scale assault on Congress’ oversight mechanisms that has continued to this day, and one that may well do permanent damage to our checks and balances and entire system of democracy. And the Democrats of the Judiciary Committee responded with a rubber chicken.
At best, Wednesday’s hearings will result in the Democrats checking off a box on the road to the committee drafting and voting on articles of impeachment before votes to impeach in the full House. Such checked boxes, though, are completely unnecessary.
“The Constitution does not require a series of hoops that this committee has to go through in order to make its determinations about what if anything to do about presidential misconduct,” impeachment scholar Michael Gerhardt of the University of North Carolina said in July.
Gerhardt was speaking to the judiciary committee as part of its Lessons From the Mueller Report, Part III panel. He is set to testify again on Tuesday, one of the four experts who will be drawn into what promises be another embarrassing and redundant spectacle by one of the most important—and least capable—committees in this Congress.