Morning Consult

by BOB BARR & JASON PYE

Well, after months of back-and-forth, House Speaker Nancy Pelosi (D-Calif.) has finally caved to the radical base of the Democrat Party and authorized a formal Inquiry of Impeachment. Or, maybe not.

It was less than one month ago that the House Judiciary Committee actually did approve a resolution, strictly along party lines, that began what some Democrats claim is an “impeachment investigation” and others call an “impeachment inquiry.” Pelosi recently seemed to agree with both assessments in launching what might best be viewed as a “faux impeachment” process – verbally labeling it an “inquiry” but without a House resolution formally doing so on the record.

During an interview last month, Committee Chairman Jerry Nadler (D-N.Y.) said that the investigation his committee is conducting “is not necessarily called an impeachment inquiry. That’s a made-up term without legal significance. It is, however, what we are doing.” Clear as mud.

Although there is nothing in the rules of the House that requires a formal vote by that chamber in order to authorize the initiation of a presidential impeachment inquiry, in modern practice the House of Representatives votes as a body to instruct the Judiciary Committee to begin such an important process. This also establishes the parameters for such an investigation. The committee then would review information relevant to the inquiry and, if necessary, produce articles of impeachment, which then would be considered by the House as a whole.

That was precisely what occurred in the most recent impeachment – that of President Bill Clinton in 1998. That procedure that yielded four very focused and well-documented articles of impeachment (two of which passed the full House, roll call votes 543 and 545, on Dec. 19 of that year).

In contrast, the resolution passed last month by the Judiciary Committee is nothing but an extraordinary display of partisan politics, one that undermines the impeachment process as a constitutional remedy for holding a president accountable.

Furthermore, based on what we know about the so-called “Ukraine-gate” incident — including the transcript of the president’s July 25 phone call with his Ukrainian counterpart, which has now been made public — that seems to have spurred Pelosi to action, there still is no tangible evidence of criminal acts or serious abuse of power by President Donald Trump.

There are other factors illustrating the bald partisan political nature of Nadler’s effort. The chairman is facing a well-funded primary challenge in his district by Lindsey Boylan, who previously criticized Nadler for his hesitancy to move forward on impeachment. When Rep. Andy Biggs (R-Ariz.) noted this fact during the committee’s deliberations, Democrats expressed outrage that anyone would dare question Nadler’s motives.

The resolution approved by the committee is seriously flawed. It departs not only from the norms of an impeachment inquiry, but also from the rules of the House. The resolution prohibits noncommittee members from reviewing materials, such as documents from a grand jury, received behind closed doors. This is in direct conflict with House Rule XI, Clause 2(e)(2), which requires that all noncommittee members be allowed to review such materials. Only the House as a whole can waive this rule. To date, the House has not done so.

Another problem with the committee’s resolution is that it limits the ability of the president’s lawyers to respond to information received behind closed doors. In contrast, in 1998 the Judiciary Committee adopted explicit procedural rights for President Clinton, similar to those adopted in the impeachment inquiry into President Richard Nixon a generation earlier. Clinton’s counsel could, among other things, review and respond to evidence received by the committee and cross-examine witnesses. “The provisions will ensure that the impeachment inquiry is fair to the President,” the committee report explained at the time.

The current Judiciary Committee resolution only allows Trump’s counsel to respond to information or testimony received during open session. This is hardly a great favor being granted the president; anyone, whether they are a noncommittee member of the House or the average viewer watching a hearing on C-SPAN, may respond to information or testimony received during open session.

The process Democrats are employing for this impeachment “investigation,” “inquiry,” or whatever term they want to use, is a stain on the Judiciary Committee and on the institution of the House of Representatives — lacking, as it does, any pretense of fairness, due process or regard for institutional precedence.

Bob Barr represented Georgia’s 7th Congressional District from 1995 to 2003 and served as an impeachment manager during the impeachment trial of President Bill Clinton. Jason Pye is the vice president of legislative affairs at FreedomWorks.