The Rushed Impeachment--Now We Know Why

Today we learn definitively that what we've suspected is the truth. Impeachment is being used in what I termed yesterday as a "cart before the horse" manner. In other words, impeachment is being used by the Dem House as the justification for demanding testimony and, most importantly, the Mueller grand jury records. CTH has the story, but it's straightforward enough.

Basically, the House lawyers have filed a brief in the case in which they're attempting to compel the testimony of former WH Counsel Dan McGahn. The rationale that the Dem House presents is that, now that the House has impeached President Trump, they need McGahn's testimony to use as evidence in the impeachment trial!

But wait, you say. How could there have been an impeachment without evidence? Well, that's a point. House Dems are claiming, in effect, that they can impeach and then investigate to find the evidence to justify the impeachment. Remember when Maxine Waters said impeachment is whatever the House says it is? The Dems really meant that. Fox News quotes the Dem brief to point out that the Dems are actually suggesting that they could add new articles to their impeachment--implying that, in spite of their vote--impeachment remains a work in progress:

“If McGahn’s testimony produces new evidence supporting the conclusion that President Trump committed impeachable offenses that are not covered by the Articles approved by the House, the Committee will proceed accordingly---including, if necessary, by considering whether to recommend new articles of impeachment,” the brief stated, noting that they still have “ongoing impeachment investigations.”

This is exactly why I've been on the side of McConnell taking the articles up immediately.

There are a lot of legal and, especially, constitutional issues here. One, of course, which I've offered an opinion on, is whether the Senate has to wait for the House to "transmit" the articles before it can act. I side with those like Alan Dershowitz who maintain that the Dem House vote is the act of impeachment. That being the case, the Senate is now the actor. The House's role is finished. But the Dem House is claiming that we've only just begun. It's all just part of a process and we define the parameters of that process.

In addition to throwing the very constitutional meaning of "impeachment" totally up for grabs, this tactic is an end run around the constitutional restriction of House investigations to matters of oversight and legislation. Now, having constituted themselves as an investigative entity, an impeachment tribunal, they claim to have full investigative powers. They are now claiming to be, in effect, more than a legislative body. They are an investigative body like the FBI. Or so they claim.

Below are the portion's of the DoJ reply brief that seem to me the most relevant. Please note that this brief doesn't address the merits of the case as I've described them, above. It is in fact, a supplemental brief that is limited to “addressing the effect of the articles of impeachment on the issues in this case, including whether the articles of impeachment render this case moot and whether expedited consideration remains necessary.” DoJ is at this point only arguing that the case should be dismissed as an improper entanglement of the court in an "interbranch" dispute--a dispute between the Executive and Legislative branches that is being more properly addressed in the impeachment process.

What DoJ is arguing, more specifically, is that since this case originally arose from the Dem House Impeachment Theater--it was an attempt to force McGahn to testify before the Impeachment Theater--the Dem House's impeachment vote has ipso facto removed the very justification for which the suit was brought. Unstated, but lying behind this argument, is the view that the impeachment vote concluded the Dem House's role in impeachment. Any question of calling witnesses is now strictly a matter for the Senate. Therefore the court should not get involved.

Just as irregular, the Dem House used this very case as the basis for one of the two articles of impeachment--obstruction of Congress! This, argues DoJ, is actually a power contest between the Legislative and Executive branches, and the courts should decline further involvement now that the Dem House has proceeded to impeachment. If the court should get involved at this point, it would be deciding the very matter that is a subject of dispute in any impeachment trial--and that is a matter for the Senate to decide.

3. The articles of impeachment affect this case in two other ways. First, even before the impeachment vote, the Committee had no response to the Department’s point that a court, as a matter of equitable discretion at the very least, should refrain from entangling itself in an interbranch dispute where Congress as a whole has not made a conscious choice to clearly grant the courts subject-matter jurisdiction over the Committee’s suit and the Committee a cause of action to sue at all. See Opening Br. 46-47; Reply Br. 24. The reasons for refraining are even more compelling now that what the Committee asserted—whether rightly or wrongly—as the primary justification for its decision to sue no longer exists. 

Second, the article of impeachment addressing purported obstruction of Congress relies in part on the judicial proceedings in this very case. The House Judiciary Committee’s impeachment report, for example, cites the district court’s characterization of the Justice Department’s litigating position in this case for the proposition that the President “insists that unfounded doctrines, such as absolute immunity, preclude testimony by many current and former officials who might shed light on any Presidential abuses.” H.R. Rep. No.116-__, Impeachment of Donald J. Trump, President of the United States: Report of the Committee on the Judiciary 165 (2019). Pursuing an interbranch suit in court while simultaneously pursuing impeachment, and then using that litigation as part of the impeachment proceedings, is “far from the model of the traditional common-law cause of action at the conceptual core of the case-or-controversy requirement.” Raines v. Byrd, 521 U.S. 811, 833 (1997) (Souter, J., concurring). But that is exactly what the Committee has done. The effect of that choice is to “embroil[] the federal courts in a power contest nearly at the height of its political tension.” Id. 

Indeed, if this Court now were to resolve the merits question in this case, it would appear to be weighing in on a contested issue in any impeachment trial. That would be of questionable propriety whether or not such a judicial resolution preceded or post-dated any impeachment trial. Cf. Nixon v. United States, 506 U.S. 224, 232, 235-36 (1993). The now very real possibility of this Court appearing to weigh in on an article of impeachment at a time when political tensions are at their highest levels—before, during, or after a Senate trial regarding the removal of a President—puts in stark relief why this sort of interbranch dispute is not one that has “traditionally thought to be capable of resolution through the judicial process.” Raines, 521 U.S. at 819. This Court should decline the Committee’s request that it enter the fray and instead should dismiss this fraught suit between the political branches for lack of jurisdiction.