House Democrats risk overriding fairness factor on impeachment
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Last Tuesday House Democrats caucused to discuss whether to schedule a vote formalizing an impeachment inquiry into President Donald Trump’s request to Ukraine’s president to investigate former Vice President Joe BidenJoe Biden2020 Dems slam Trump decision on West Bank settlements Trump calls latest impeachment hearings 'a great day for Republicans' Overnight Health Care: GOP senator says drug price action unlikely this year | House panel weighs ban on flavored e-cigs | New York sues Juul MORE. House Speaker Nancy PelosiNancy PelosiOvernight Health Care: GOP senator says drug price action unlikely this year | House panel weighs ban on flavored e-cigs | New York sues Juul Five things to know about Tuesday's impeachment hearings McConnell hopes Senate impeachment trial 'not too lengthy a process' MORE (D-Calif.) had unilaterally initiated a formal inquiry back on Sept. 24. The consensus that emerged from the caucus was that a House vote should be resisted, in part to protect vulnerable Democratic incumbents in districts Trump carried in 2016.

According to news reports, however, the larger reason was a strong impulse to prevent Republicans from interfering with the process in hopes of derailing it altogether. That argument reportedly convinced Speaker Pelosi to put off a vote for now, though subsequent court decisions could alter the need for a vote.

Pelosi has made it clear she wants an expedited inquiry with Judiciary Committee and House impeachment votes prior to Thanksgiving based on the findings from committee investigations.  Such a fast-track process already involves secret hearings and depositions as well as public hearings.

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Just as slam dunks sometimes shatter backboards sending shards showering onto the floor, impeachment machinations can shatter the House chamber’s dignity in a barrage of bitter barbs. Divine comity is to be preferred.

While Democrats may think they are dodging Republican obstructionism by avoiding a formal inquiry debate and vote, they may at the same time be arousing public disgust and distrust over the perceived unfairness of it all. By lashing out at Republican demands that the president be accorded due process rights, Democrats could well suffer an electoral backlash against their hardball tactics. The terms “witch hunt” and “kangaroo court” are already being bandied about. 

Contrast the current approach with presidents Richard Nixon’s and Bill ClintonWilliam (Bill) Jefferson ClintonFeehery: Pivoting to infrastructure could help heal post-impeachment wounds Press: Ukraine's not the only outrage The 2 events that reshaped the Democratic primary race MORE’s impeachment proceedings in 1974 and 1998. In 1974, Judiciary Committee Chairman Peter Rodino (D-N.J.) specifically asked for a House vote authorizing an impeachment inquiry. The House overwhelmingly adopted the resolution (H. Res. 803), 410 to 4 on Feb. 6, 1974. Rodino appointed a nonpartisan staff (separate from standing committee staff) to conduct the inquiry.  President Nixon’s private counsel, James D. St. Clair, was allowed access to documents requested by the committee, and to participate in its proceedings by cross-examining witnesses. 

On Oct. 8, 1998, following the release of independent counsel Ken Starr’s report on Clinton, the House voted 258 to 176 for a resolution (H. Res. 581) authorizing an impeachment inquiry by the Republican-controlled House Judiciary Committee. 

The resolution was the epitome of fairness. It authorized the chairman and ranking minority member, acting jointly or separately, to subpoena witnesses, issue interrogatories and affidavits, and conduct depositions. If done separately, the other principal would have the right to appeal the decision to the full committee for a vote. As with the Nixon case, President Clinton’s private lawyer, David Kendall, was allowed to question Starr.

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I have made clear previously in this space that no formal House vote is necessary for the current House inquiry. In fact, impeachment resolutions may be called up on the House floor as privileged even without prior House authorization or committee approval (though they are usually tabled or referred to committee). 

Keep in mind, though, that the Senate select committee on the Watergate scandal (the Ervin committee) failed to enforce its subpoenas for Nixon’s White House tapes in 1973 when two lower courts refused to support its request. A year later, Watergate special prosecutor Leon Jaworski succeeded at the Supreme Court in obtaining the tapes (U.S. v. Nixon). He subsequently turned them over to the House Judiciary Committee because its authorized impeachment inquiry was considered of a higher constitutional order.

Speaker Pelosi was wise in resisting internal caucus demands to back an impeachment inquiry after the release of the Mueller report on Russian interference with the 2016 presidential election.  There was insufficient support for impeachment at that time either in Congress or by the public.  It wasn’t until President TrumpDonald John TrumpDem senator says Zelensky was 'feeling the pressure' to probe Bidens 2020 Dems slam Trump decision on West Bank settlements Trump calls latest impeachment hearings 'a great day for Republicans' MORE’s July 25 phone conversation with the president of Ukraine that Pelosi pivoted to supporting an inquiry. 

Trump’s request for a foreign government’s assistance in investigating his possible campaign opponent, former Vice President Joe Biden, and his son Hunter, was much easier for the public to grasp than the Mueller report’s muddled maybes over possible obstruction. According to a Washington Post poll, public support for an impeachment inquiry has risen from 41 percent in August to 58 percent earlier this month. But support for an inquiry into possible impeachment is not synonymous with support for actually impeaching and removing a president from office. If the inquiry is not handled in a fair and deliberative manner, the American people’s sense of fair play in politics, as in sports, could sideline the good intentions of those who rush to judgment.

Don Wolfensberger is a fellow at the Woodrow Wilson Center and Bipartisan Policy Center, former staff director of the House Rules Committee, and author of “Changing Cultures in Congress: From Fair Play to Power Plays.” The views expressed are solely his own.