The Constitution dodged a bullet in December, but I wonder how many people noticed.
With so much background noise from the media clamoring for fresh news on impeachment, public officials stating conclusions about evidence yet to be collected, daily tweets from a president anxious for vindication, and confident answers by academics on difficult questions—or, worse, confident pronouncements that are plainly in error—perhaps it’s not surprising that the main constitutional import of the past weeks has been neglected. That overlooked significance is Speaker Nancy Pelosi’s rationale for taking the initiative to pause the unfolding sequence of impeachment, a decision for which she will likely someday be honored by those who seek to preserve and protect the Constitution.
Indeed, Pelosi’s decision should appeal to all of us across the political divide. If you are a Republican who thinks the charge of abuse of power is too vague and obstruction of Congress is an effort to upset the balance among the political branches; or if you are a Democrat who deplores the statements by senators that they have no intention whatsoever of considering the evidence against the president because it is the result of a rushed and unfair process; if you are a Trump supporter who thinks that testimony by witnesses at one remove from the president is insufficient to support the awful step of impeachment; if you are a Never Trumper or member of the Resistance who thinks that other significant counts should have been part of the indictment; or if you are an independent who is sick of the circuslike atmosphere, including the antics of congressmen protesting the “impeachment circus”—you should applaud the speaker’s pause.
But you probably won’t. That’s because the best rationale for that pause has been obscured by attempts to figure out how the speaker has gamed the law of impeachment to win the electoral upper hand, rather than any effort by commentators to accept that she is taking potentially politically costly steps in order to defend the Constitution.
As a constitutional matter, the president’s guilt or innocence is not irrelevant, whatever one may feel about the process that is due him in the House’s preparation of an indictment. That obvious observation only underscores the necessity of securing the best evidence possible, for the president’s sake as well as for everyone else’s. That means getting the testimony under oath of Secretary of State Mike Pompeo, former Secretary of Defense James Mattis, former national security adviser John Bolton, acting chief of staff Mick Mulvaney and former chief of staff John Kelly, former White House counsel Don McGahn, and the president’s personal attorney Rudy Giuliani. In addition to providing crucial evidence, the examination of these witnesses, perhaps unlike that of those who have come before, will rivet the nation’s attention.
It is perfectly true that a common crime is not a necessary constitutional predicate to impeachment. Claims to the contrary are clearly mistaken as a matter of constitutional law. Nevertheless, most impeachments of judges—though not all—and the most recent impeachment of a president—though not the only other precedent we have—charged indictable offenses that are federal crimes apart from those “high crimes and misdemeanors” contemplated by the Framers. A pause now for more testimony may yet yield further counts that do essentially charge crimes like the solicitation of bribes, violation of the Foreign Corrupt Practices Act, and the president’s misuse of congressionally appropriated and authorized foreign military assistance for personal or political gain.
As a constitutional matter, there is no special timetable that governs the transmittal of the House’s bill of impeachment to the Senate for trial. The Constitution merely provides that the Senate controls the procedures for trial, which cannot commence until the bill of impeachment is finalized and transmitted and House managers—prosecutors in the Senate trial—appointed. The gap between the House vote impeaching President Bill Clinton and the Senate trial was five weeks; patience, like empathy, seems to be in short supply this season.
But the important point is that the Clinton impeachment and trial came after years of investigation by an independent counsel, testimony in person by the president both in a civil action and before a grand jury, and essential agreement on all the facts. Some may feel as though, in our present frenzied information environment, a pause is excruciating, but in fact it would have been a mistake to adopt a faster timetable.
That is because it is timely now to enlist the courts to compel the missing testimony and missing documents if the executive continues to make the information unavailable. That this may slow down the process should be welcome to partisans of the president who have bitterly complained that the proceedings were rushed and who want his supporters rather than simply his critics also to be on the record.
Once the majority leader made plain that he would not allow those witnesses to testify before the Senate, it was incumbent on the speaker to pause the proceedings in order to secure that testimony in another forum. It may be that the president will relent; it may be that the majority leader will relent. But the purpose of the pause wasn’t, as some would have it, simply a matter of tactics.
There is a legitimating role to be found in the courts, and that should now be expeditiously pursued. I am encouraged in the view that the courts will act promptly by the chief justice’s year-end report on the state of the federal judiciary, in which he writes, “We should reflect on our duty to judge without fear or favor, deciding each matter with humility, integrity and dispatch” (emphasis supplied).
The standing of the House to enlist the judiciary to compel testimony is at its apogee having adopted articles of impeachment. If impeachment proceedings could be neutered by the very president being impeached; if truly vital testimony can be withheld in order to wait out the process of impeachment; if impeachment can be discredited in the eyes of such a great number of our citizens because the most crucial documents have not been forthcoming—if these are the precedents we are at present creating, then the speaker’s pause was an essential step to save the Constitution and its impeachment provisions.
There is no contradiction in having voted for articles of impeachment and also seeking further evidence. Very few attorneys in noncriminal matters would limit themselves to the evidence on the basis of which they brought suit. Furthermore, the House that voted for a bill of impeachment could not have known, however much it feared, that the majority leader would declare he was acting in collusion with the White House and had no intention of presenting witnesses the White House had sequestered. Finally, new evidence—emails surrounding the decision to withhold appropriated military assistance from Ukraine—has come out since the vote. Is anyone suggesting that the House managers be estopped from presenting this evidence?
It took courage and fortitude of the speaker to act as she has. Maybe it wasn’t good politics for the Democratic Party or its eventual nominee for president. That it was the right thing to do for the Constitution, I have little doubt.