The House Intelligence Committee has concluded that President Donald Trump has engaged in several types of impeachable conduct, including obstructing Congress by refusing to allow members of his administration to testify. Now the action shifts to the House Judiciary Committee, which seems intent on voting on articles of impeachment by Christmas with an eye to holding a trial in the Senate early next year. This is a mistake.
In its report released Tuesday, the intelligence panel offered an unusual rationale for wrapping up impeachment quickly: “Given the proximate threat of further presidential attempts to solicit foreign interference in our next election, we cannot wait to make a referral until our efforts to obtain additional testimony and documents wind their way through the courts.”
The problem is that if the House does vote for impeachment but the Senate holds a trial and falls short of the two-thirds vote needed to remove the president from office, a likely outcome as things now stand, Trump will claim exoneration. This won’t deter the president from soliciting foreign interference in American elections. If anything, it will encourage him.
House must investigate the cover-up
There are other arguments for expediting the process: It’s politically unwise to conduct an impeachment investigation during the presidential primary season. To hold the public’s attention, the procedure can’t be allowed to drag on and become just another investigation. And when Congress is preoccupied with impeachment, it’s hard to get anything else done.
While these are all good reasons, none of them matter.
First, the investigation is only half-complete. While the House has done a thorough job of exposing the president’s efforts to trade American aid for political assistance with his 2020 campaign, it has devoted no attention to what happened after the whistleblower filed the complaint. Ask any student of Watergate, it’s always the cover-up that gets you.
Embracing conspiracies:Republicans have gone soft on Russia to protect Donald Trump. So much for Reagan’s legacy.
We do know that the administration engaged in a frantic effort to bottle up the complaint, but we don’t yet know who directed that effort. But there are now multiple reports, based on people familiar with the matter, that White House lawyers briefed Trump on the complaint in late August — which would make the president a prime candidate for that role. So in addition to Sen. Howard Baker’s immortal “What did the president know and when did he know it?” we can add “And what did the president do when he found out?”
But there is a more fundamental reason for taking the time necessary to thoroughly explore the facts. There is more at stake here than the political fate of Donald Trump or what is politically expedient. The one question that should guide Congress in every decision it makes regarding this impeachment proceedings is, “How do we ensure that America’s democratic institutions are stronger after this proceeding is over than they were before it began?”
Trump has made two breathtaking claims. First, that as president, he has the power to forbid Congress from questioning any witness about conversations with him by claiming executive privilege. Second, that as president, he can, by fiat, render both current and former administration officials immune from congressional subpoenas. Taken together, this amounts to a claim that Congress may only investigate the president with the president’s permission.
Reaffirm that presidents are not kings
During Watergate, President Richard Nixon’s legal team argued that the president “is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment.” Trump would go one better and claims that not even impeachment proceedings can dent the president’s immunity.
It didn’t work for Nixon. In United States v. Nixon, the Supreme Court held that the president is not a king and that he, like any other citizen, is subject to the jurisdiction of the courts.
The Nixon decision stood our country in good stead during the Clinton impeachment, turning what would otherwise have been high drama into low farce. It shouldn’t be allowed to work for Trump, either. The principle in United States v. Nixon, that the president is not above the law, obviously needs to be reaffirmed and strengthened in United States v. Trump.
The House needs to take its time and force Trump lawyer Rudy Giuliani, former national security adviser John Bolton, acting White House chief of staff Mick Mulvaney and all the rest to not only honor the subpoenas they have been issued, but also to answer the questions they are asked.
Trump is here now. Someday, he will be gone. But our institutions endure and will be passed down to the generations that follow us. If the House succeeds in firmly establishing that no one, not even the president — especially not the president — may ignore a congressional subpoena or seek to interfere with an impeachment investigation, history will count In re Impeachment of Donald John Trump as a great victory, no matter what the final outcome.
Chris Truax, an appellate lawyer in San Diego, is an adviser to Republicans for the Rule of Law and a member of USA TODAY’s Board of Contributors.