Casual or cowardly? Pelosi takes dangerous road to impeachment

Casual or cowardly? Pelosi takes dangerous road to impeachment
© Greg Nash

Members of Congress have long been defined by two contradictory attributes of the constitutional power of voting and the consistent effort to avoid using it. Voting means being accountable, and politicians are not big on personal accountability. That is why members have effectively removed the requirement for a legislative declaration of war from the Constitution. Instead, in all except a handful of wars, Congress has used open-ended resolutions to start wars in places such as Afghanistan and Iraq, preserving later denials of responsibility while supporting popular wars.

Now, the House of Representatives appears on the verge of doing the same with impeachment. If war is the continuation of politics by other means, impeachment may soon follow as the House does away with any need for an initial vote of its members. The change in the process for presidential impeachment is the focus of a planned letter from the White House that will tie demands from Congress for evidence to a vote of the full House. It is a case of passive aggression meets active avoidance.

With great fanfare, House Speaker Nancy PelosiNancy PelosiCummings to lie in state at the Capitol House Republicans 'demand the release of the rules' on impeachment Overnight Health Care — Presented by National Taxpayers Union —Dem wants more changes to Pelosi drug pricing bill | Ebola outbreak wanes, but funding lags | Johnson & Johnson recalls batch of baby powder after asbestos traces found MORE (D-Calif.) said that an impeachment “inquiry” would begin. For those of us who have practiced in the area of impeachment, it was a curious moment. Reporters immediately called to ask if all it takes is a unilateral announcement of something called an impeachment “inquiry.” The answer is as murky as the motivation to avoid the traditional vote of the House to start an impeachment investigation.

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On its face, the Constitution does not require anything other than a majority vote of the House to impeach a president. It is silent on the procedures used to reach that vote, and courts have largely deferred to Congress to create its own internal rules and processes in fulfilling constitutional functions. Historically, a vote of the chamber as a whole was required to commit a matter to the House Judiciary Committee or a select committee for an impeachment investigation of a sitting president.

The reason for that traditional practice is obvious. Before the House takes the momentous step toward impeachment of an American president, all of its members should be on record with that consequential action. Whether it was former President Nixon or former President Clinton, House members felt a responsibility to vote on whether to start the process.

The “impeachment by press conference” action of Pelosi is an entirely new animal. After her press conference, I told The Washington Post that this was not any recognizable process and that the approach taken by Democrats on presidential impeachment was “casual to the point of being conversational.” It would allow a type of immaculate impeachment that suddenly comes to life by the unilateral declaration of the speaker.

That practice would substantially reduce the burden of members in starting this process and make future impeachments all the more easy to commence. That could come at a great cost for the country, which, despite periods of such intense and bitter division, has always treated presidential impeachments as a collective and weighty decision for the entire House. The decision to avoid a full vote robs the House of the legitimacy and substance that comes from a vote of the entire body.

The current impeachment “inquiry” rests on the authority of one person. Until the entire body votes, it remains the Pelosi impeachment effort rather than a House impeachment process. While Democrats are counting on the courts to follow their traditional deference to the House on this question, the abandonment of the traditional vote in the House will undoubtedly give pause to some judges who are asked to override legal barriers to gain access to executive branch and grand jury material.

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I testified months ago before the House Judiciary Committee on these very conflicts and encouraged it to secure a vote of the chamber to start an impeachment investigation before fighting these issues in court. While it has oversight authority that can override executive privilege arguments, an impeachment process puts the authority of Congress at its apex under the Constitution. This is important in securing grand jury material, a controversial and uncertain source of evidence for the committee.

There are other overly casual aspects to the Pelosi effort. It rests on the idea that the involved committees already have been given authority to conduct an impeachment inquiry. But they have not. The House Judiciary Committee has oversight authority that has been given to it in Section Two of Article One. However, the impeachment powers and the attendant deference by the courts also rest in Section One of Article One. In demanding grand jury material, a court could find that the only clear authority of the committee is oversight, not impeachment, powers.

The greatest danger, however, is to the process of impeaching the president. This casual unilateral approach will make impeachment more likely to become an extension of politics. The framers worked hard to avoid the use of impeachment as an impulsive or partisan device. That is what is likely to come from this new informal path created by Pelosi.

A majority of Democrats are now on the record supporting impeachment. They should get their votes on the record, and the House should remove the legitimacy questions created by Pelosi. There are valid issues to be investigated in the Ukrainian phone call of President TrumpDonald John TrumpFlorida GOP lawmaker says he's 'thinking' about impeachment Democrats introduce 'THUG Act' to block funding for G-7 at Trump resort Kurdish group PKK pens open letter rebuking Trump's comparison to ISIS MORE. If proved, these allegations would constitute impeachable offenses. The House, however, should lay a proper unassailable foundation for that process.

If there is any step that warrants formality, it is the impeachment of the president of the United States. That is hardly convenient for members of Congress who want to wait and see if impeachment is popular. But there still comes a point when casual becomes little more than cowardice.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He also served as the last lead counsel in a Senate impeachment trial and testified as a constitutional expert in the Clinton impeachment hearings. You can follow him on Twitter @JonathanTurley.