Conducting a Fair Impeachment Inquiry – Not a Circus
To date, Congress has been interviewing witnesses behind closed doors. Witnesses’ preliminary statements may be released, but their full depositions are not. There is selective leaking by those supportive of and opposed to the President. The media are conducting their own investigations and releasing pertinent information.
The facts on their face appear damning, but we may be seeing only the tips of the iceberg. The President has as yet offered no apologies and maintains his conduct was “perfect”. There may be a verbatim transcript of the call, and there were multiple individuals involved in the events of the lead-up and aftermath of the President’s call with the Ukrainian President with important information to provide.
The President has been threatening witnesses on Twitter and in his speeches as traitors and spies, and intense pressure has been put on witnesses not to testify or not to produce Congressionally requested documents. Some have defied the President’s orders; some have defied Congressional requests.
Congress does have subpoena powers to compel witnesses or the production of documents, but the court battles to enforce them would be lengthy, and the President is playing for time -- delay, delay, delay -- until the American people become distracted or the next election cycle is in full swing. The President has also been threatening members of both the Republican and Democratic parties who have been raising questions about and investigating his conduct using his twitter account and in his speeches and rallies.
The President’s personal attorney, Rudy Giuliani, played a key role in the events in question. He is refusing to testify citing attorney client privilege.
The President seems to be going seriously off the rails: first, giving the Turks the green light to invade Syria and kill the Kurds, then awarding his own financially troubled golf course resort the rights to host the G-7 summit next June, writing infantile letters to the President of Turkey and then throwing temper tantrums in vital meetings with the Congressional leadership.
Past televised hearings in Congress have often devolved into a circus where lawmakers and occasionally the witnesses themselves have played to the TV cameras in an effort to influence the American people’s perceptions of themselves and the issues at stake. While witnesses under oath may face perjury charges for those lies that can be documented, Congress would have to depend on US attorneys appointed by President Trump to bring such proceedings, and it takes forever to bring such a prosecution. It is very hard to unring the bell of people’s first perceptions of events (even when it is a falsehood).
This is not a criminal trial, rather it is an impeachment investigation. The rights afforded to a criminal defendant such as a unanimous jury verdict by a jury of their peers with a finding beyond a reasonable doubt do not apply here. But what rights do and should apply, and who should judge and apply them, in such a monumental and consequential proceeding as a Presidential impeachment?
The House is in fact-finding mode (inquiry) to determine whether to charge the President with articles of impeachment. Some liken it to a grand jury proceeding. It does not appear that they have been over-reaching.
The President’s counsel is demanding that the procedural rights typically afforded to a defendant during a criminal trial apply to the current proceedings. https://thehill.com/homenews/administration/464908-read-white-house-letter-to-pelosi-rejecting-cooperation-in He wants to turn the House proceedings into a criminal trial from the get go. That is completely inappropriate, as under the US Constitution, the Senate is the body that holds the trial, finds the facts and delivers the verdict with a 2/3rds majority; it serves as the jury; the House serves as the prosecuting attorney.
Some in the President’s party want the proceedings to devolve into a circus where the American people can be thoroughly confused and disgusted by the carrying on; some will never vote to impeach their beloved leader because to date the facts point overwhelmingly towards presidential misconduct and a plot with a foreign government against his likely next election opponent. Some in the Democratic Party have likely prejudged the President. It seems to me the right standard for lawmakers to apply is “would you vote for this or indeed any impeachment if the President being impeached was from your own party”.
Some in the President’s party want the investigation to be handled by a special counsel or the FBI under the jurisdiction of the Department of Justice, comparable to the Mueller investigation. Not only does that take a very long time, but since taking office, Attorney General Barr has been acting as the President’s personal attorney, rather than the independent head of the Justice Department, we have a right to expect pursuant to his duly sworn oath of office.
During Watergate scandal, we were all glued to the proceedings; they were riveting; they were well and judiciously conducted. The President fired the top leaders of the Justice Department who declined to do his bidding during the cover up phase. Important issues of executive privilege went to the Supreme Court for decision. Parallel criminal proceedings in federal District Court convicted some of the President’s henchmen, and the sentences put some in jail and others at risk. The President resigned only when Republican leaders told him all hope was lost. It took a very long time and disabled the US government during the interim.
In the impeachment proceedings against President Clinton, Judge Starr and House Speaker Gingrich over-reached and alienated the American public by focusing on the salacious details of the President’s affair with a White House intern and the President’s dishonest denial of the affair, after they could find nothing damning about the failed Whitewater investments that had kick-started the Special Counsel’s investigation. President Clinton compartmentalized, and government was not paralyzed by the investigation.
Unless bi-partisan consensus develops in this impeachment proceeding, the President will not be removed from office by the Senate, a waste of time and energy, so let’s do our best to start and end with an effort at least to reach out towards bi-partisanship. It does seem to me that the Speaker and the Chairs of the relevant committees need to lay out how they intend to proceed, and they need to describe and recognize the rights of the minority party to meaningfully participate in the investigation. The American people need to have access to all the relevant information in a timely and digestible format so they can make their own best informed judgments. The President through his counsel should be afforded a right to participate in, but not obstruct, the inquiry into his conduct. Delaying and obstructing tactics by any counsel must not be allowed. If documents and witnesses are not produced, it should be assumed they are adverse to that party’s interest, which refuses to produce them in the proceedings.
As I expect the Republican Party will have to find a new candidate for the Presidency when all the evidence is carefully gathered and considered, the matters must proceed and be concluded fairly but expeditiously.
Prepared by: Lucien Wulsin
Dated: 10/19/19