The Democrats' under-the-radar impeachment inquiry is the worst of both worlds
House Democrats are finally pursuing an impeachment inquiry against Donald Trump. Or maybe not. It depends on whom you ask, and when. "The House Judiciary Committee on Thursday advanced a resolution that some Democrats say amounts to opening an impeachment inquiry while others say it means nothing," reported The Huffington Post last week. A day earlier, The New York Times had reported that "the second-ranking House Democrat, Representative Steny H. Hoyer of Maryland, was unequivocal: An impeachment investigation of President Trump is not underway." A day later, he backtracked. On Monday, Judiciary Chair Jerry Nadler announced that a hearing scheduled for today would be designated "as an impeachment hearing."
We should acknowledge that leadership is in a tough position. They have a Constitutional duty to check a lawless presidency, and their base and many members of their caucus want them to pursue impeachment. At the same time, there's a significant group of moderate Dems from swing districts who are skittish about it, and it's not clear that they'd vote to authorize a former inquiry if it were put before the entire House. And hanging over all of this is an election 13 months out, a raft of polls showing that a majority of the public oppose impeaching Trump and the near-certainty that the Senate wouldn't vote to convict if they did.
I belong to the camp that believes they should lead rather than follow public opinion, that the Constitution gives them few options to uphold the rule of law and that allowing Trump to wantonly break the law without consequences sets an extremely dangerous president, but I'm happy to concede that this is a challenging situation.
But this ambiguous approach represents the worst of both worlds. All of the arguments against a formal impeachment process obtain to this quiet one. It might further energize Trump's base and give him additional ammunition to claim that every effort to expose his abuses of power were just part of a big partisan witch hunt. The hazards of pursuing action in the House only to have it die in the Senate are no different.
At the same time, the kinda-sorta process now underway doesn't satisfy the strongest arguments in favor of impeachment.
Impeachment is a clearly defined Constitutional power, and if the House were officially exercising that power it would render the regime's legal claims that Congress's oversight requests are illegitimate moot. Those claims are central in justifying the White House's continuing obstruction.
Last week, the Department of Justice made it clear that a quasi-impeachment process undermines that argument. According to Politico, Justice Department lawyers argued on Friday "that the House Judiciary Committee’s effort to obtain former special counsel Robert Mueller’s most sensitive secrets — evidence and testimony collected by a grand jury — should be denied, in part because House Democrats can’t agree on what to call their investigation."
House Democrats’ attempt to access Mueller’s grand-jury information hinges on the courts acknowledging that they are conducting an impeachment investigation. The Judiciary Committee argued in late July that their impeachment investigation satisfies one of the exceptions to federal grand jury secrecy rules: that the House is engaged in an “impeachment investigation” and therefore is taking an action preliminary to a “judicial proceeding” — the Senate’s trial on whether to remove Trump from office.
But the Justice Department rebuffed that claim on Friday, citing inconsistent statements from senior Democratic leaders — as well as their own claims that the ongoing investigation might lead to innumerable outcomes other than an impeachment vote.
So depending on how the courts see it, the quasi-impeachment process may fail an important legal test.
The other compelling reason to pursue impeachment is that doing so would create the kind of spectacle that's necessary to cut through the polarization and media siloing that allow Republicans to avoid reckoning with the reality of what Trump has done. Robert Mueller and his team found clear evidence that the president* committed serious crimes--as have others, including prosecutors in New York--but many conservatives have only heard that he was completely exonerated.
Last week, Media Matters released an analysis which found that on both the opinion and "straight reporting" sides of its operation, Fox News tends to simply ignore stories about Trump's corruption. And a recent study found that Trump's support among Republicans isn't set in stone. Researchers exposed both Republicans and Democrats to different sets of headlines in an online news aggregator and then measured their opinions afterwards. The study was conducted when Kremlingate was featured prominently in the news, and the researchers randomly assigned some "subjects to see almost no Trump-Russia stories that week, while others randomly received an unaltered amount of stories about the scandal."
We found that only Republicans were significantly influenced by the scandal coverage or lack thereof. Those who saw comparatively more Trump-Russia stories rated his job performance 7.6 percent lower than Republicans who did not read those stories, and rated their positive emotions toward him (such as pride, enthusiasm, and hope) 10.9 percent lower than those kept in the dark.
With or without a vote by the full House, if Nancy Pelosi stood at a podium with other Congressional leaders at her side and announced that Trump's continuing obstruction and ongoing abuses of power had forced her hand and that Democrats were impeaching the president,* the hearings that followed would get wall-to-wall coverage on every network, including Fox. They would be must-see TV, and the testimony might break through the noise. Nadler can designate today's session in the Judiciary Committee as an impeachment hearing, but tens of millions of non-political junkies aren't going to be watching.