Presidential due process on impeachment: Catch-22 or catch and kill?

House Democrats finally agreed to allow a vote on authorizing the on-going impeachment inquiry initiated by Speaker Nancy Pelosi (D-Calif.) back in September. The reasons for allowing a full House vote on the process are relatively easy to understand. The president and congressional Republicans were gaining public mileage with the charge that the whole impeachment thing was a “witch hunt” being carried out in secretive chambers as a ploy not only to nullify the results of the 2016 presidential election but to influence the outcome of the 2020 election. In short, the vote would call the president and his allies’ bluff by guaranteeing a fair and open process.

Leaning on the precedents of the 1974 and 1998 Nixon and Clinton impeachment proceedings, in which Congress adopted resolutions formally authorizing those proceedings, Republicans were charging Democrats with acting contrary to established procedures giving the full House sign-off on an impeachment investigation in order to expose President Trump’s alleged transgressions without affording the president ample opportunity to defend himself.       

Of course, as I have pointed out in previous columns here, there is nothing in the Constitution or House Rules requiring House authorization to proceed with an impeachment inquiry, nor, for that matter, to even allow the president to participate in the House proceedings. The House’s sole power to impeach, that is, to bring charges, is analogized to a grand jury proceeding in which secrecy is employed to secure witness testimony and in which the target of the grand jury has no right to observe or participate in any way. 

The grand jury analogy is imperfect, though, in the sense that impeachment is a political process that involves the elected representatives of the people who are accountable to their constituents both for their decisions and their reasons for making them. This, by precedent, at least, ultimately involves public impeachment proceedings in committee and on the House floor, to determine whether the articles of impeachment should be carried to the Senate for trial and possible removal from office.       

It is true that the president’s lawyers have been allowed to sit-in on previous committee impeachment hearings and proceedings and to participate, in a limited way, to cross-examine witnesses and even call their own. The impeachment inquiry procedures in the Committee on the Judiciary, as published by the House Rules Committee in connection with House Resolution 660, allows the president’s counsel to call and question witnesses, but with a caveat (with a capital “C”). If the chair of the Judiciary Committee determines that the president has “unlawfully” refused to make witnesses available or produce documents requested by any of the six committees mentioned in the resolution, the chair can “impose appropriate remedies, including … denying specific requests by the president or his counsel… to call or question witnesses.” 

It is well known that the president has prohibited White House and other executive branch personnel from either testifying or producing documents requested by the various committees investigating aspects of the president’s actions and activities. Once these committees report their findings and recommendations to the Judiciary Committee as to whether there may be sufficient grounds for impeachment, the president will be, ipso facto guilty of blocking witnesses and documents requested by the investigative committees. The chair of the Judiciary Committee will then be in a position to impose appropriate remedies, including denying the president or his counsel from calling or questioning witnesses during the Judiciary’s impeachment proceedings. The only out for retaining that “due process” privilege (not a right in the House) would be for the president, belatedly, to agree to allow all the previously barred witnesses to appear and documents to be released into evidence.   

The due process privilege to participate in exchange for full cooperation in yielding-up witnesses and documents can rightly be termed a “quid pro quo.” If you don’t want to support Congress’s sole right under the Constitution to inquire into whether impeachable offenses may have been committed by fully cooperating in that process, then you will have forfeited any due process privilege we may have extended to you. You will have to wait for the Senate trial to assert the actual right to due process.

The quid pro quo may be viewed as a Catch-22 situation for the president (you lose whatever you choose), or a “catch and kill” trap by the House to force the president into an inevitable guilty finding by the House on at least some of the impeachment articles that are reported by the Judiciary Committee.

Don Wolfensberger is a fellow at the Woodrow Wilson Center and the Bipartisan Policy Center, former staff director of the House Rules Committee, and author of “Changing Cultures in Congress: From Fair Play to Power Plays.”  The views expressed are solely his own.