House heads down wrong path to impeachment with investigations

The House Judiciary Committee has fired off more than 80 subpoenas to individuals and organizations, marking the first salvo in its investigation of President Trump. The flurry of subpoenas seems to follow the rule from Oscar Wilde that “moderation is a fatal thing” and “nothing succeeds like excess.” Yet, if the purpose of these subpoenas is to uncover criteria for impeachment, as suggested by many members, this is not the way to go.

Faced with the prospect that special counsel Robert Mueller might not find evidence of collusion, Democrats seem to be shifting toward a range of alleged collateral crimes by Trump, including many committed before he took office. It is what the military calls “recon by fire” in shooting at any possible enemy positions to see who jumps up. Trump clearly presents a rich target environment, but if Democrats continue this approach, they are likely to run out of time while the public could run out of patience.

{mosads}As the lead defense counsel in the last impeachment trial, none of this looks to me like a promising way to build an impeachment case. Take my trial with Judge Thomas Porteous, which the courts transmitted to the House in June 2008. Despite being impeached unanimously by the House, the Senate trial was not completed until December 2010. That was 16 months on a case that was already investigated by the courts. There are roughly 20 months until the next election, and the Democratic strategy here will likely enable Trump to slow things down.

Few lawmakers, and fewer citizens, would support an effort to remove a president in his final year in office before the 2020 election. Ideally, the House committees have about 12 months to make and prosecute a case for impeachment. The fastest model was the impeachment of Bill Clinton, in which the House broke tradition and dispensed with its investigation. It used the independent counsel report from Kenneth Starr to take articles of impeachment quickly to the House floor. That was justified on grounds that Starr supplied a focused and detailed record of alleged violations.

Democrats are now pursuing the traditional approach of conducting their own investigation, and the better comparison is with the impeachment of Richard Nixon. But any comparison raises questions about the subpoenas and whether Democrats are undermining the chances for impeachment.

Schedule

From the outset, the Watergate committees had more time and limited their court fights to prevent Nixon from running out the clock. He was sworn into his second term in January 1973. The House Select Committee was formed the following month, and Nixon resigned roughly 17 months later in August 1974. That was roughly the same length of time as the last impeachment process involving Porteous. Even if the House today could follow the same pace, any trial would occur with an election just months away, and that is without the delay of multiple subpoena fights. It takes little to drag out such fights for years, as demonstrated by Barack Obama, whose administration had routinely opposed subpoenas from Congress.

Staff

The Watergate committees selected counsel with no prior positions on the merits of the investigation. The lead counsel was Sam Dash, a career prosecutor widely accepted as unbiased and fair, who carefully avoided any appearance of prejudging the evidence. Indeed, years later, Dash resigned as ethics adviser to Starr because he felt that the independent counsel had left the appearance of being an “advocate” rather than an impartial investigator before the House Judiciary Committee. Today, the selection of some of the investigative counsel by the Democratic House leadership is already being attacked as having prejudged the evidence.

House Intelligence Committee Chairman Adam Schiff of California hired former prosecutor and NBC News analyst Daniel Goldman, who previously called Trump a “shameful” person who does not care about the country and who “looks bad because he committed a crime.” Meanwhile, House Judiciary Committee Chairman Jerry Nadler of New York hired Norm Eisen, who handled ethics questions for President Obama and was a frequent CNN commentator. Eisen declared months ago that the criminal case for collusion was “devastating” and that Trump is “colluding in plain sight.” Eisen also was the counsel in a court action accusing Trump of accepting unconstitutional emoluments through his hotels and real estate property.

Subpoenas

Trump has dismissed the storm of affidavits as a “fishing expedition” and indicated he would fight back. The Obama administration, he said, did not give “one letter” to investigators in Congress. But that is not exactly true. Obama produced considerable evidence but also resisted many demands. The Obama administration tied up Congress in the courts, and the Trump administration could do the same. The best way to win such fights is to show a court that Congress has made circumspect use of its subpoena authority. With subpoenas piling up, courts may be less sympathetic with Congress in balancing executive privilege against legislative oversight.

Scope

The Senate Select Committee on Presidential Campaign Activities was set up to investigate the Watergate break in, the subsequent cover up and crimes related to the 1972 election. The success of the House and Senate Watergate committees was their focus on crimes known by Nixon during his presidency. They ultimately flipped public opinion, along with many Republican lawmakers, into supporting those articles of impeachment.

Polling today shows the same challenge exists. A Quinnipiac University survey has shown that 64 percent of voters believe Trump broke the law before taking office but only 45 percent believe he has committed crimes in office. More importantly, 59 percent said Congress should not begin impeachment proceedings against him. In light of the timeline, one would expect Democrats to focus on impeachable acts in an effort to turn public opinion. There are certainly legitimate matters to investigate, including some alleged crimes extending into his term of office, like election fraud.

Yet, even before receiving the special counsel report, House investigators are ordering Trump family members, business associates, and others to turn over documents on matters removed not only from Russian collusion but the presidency itself. Rather than pursue alleged crimes before Trump took office, Congress should follow the Watergate model and focus on claims of obstruction and other abuses of presidential power. Of course, that depends on whether Congress is seriously pursuing impeachable offenses or just trying to wound a president who is relatively popular.

Democrats clearly want to see investigations aplenty but less obvious is whether their leadership actually wants to remove Trump from office. Indeed, that may be the last thing they want to do. The current strategy would allow Democrats to pump rounds into the White House and then, with the approaching the 2020 election, announce that the ultimate decision will be left to voters. In the end, that follows another rule from Oscar Wilde that “the only way to be rid of temptation is to yield to it.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.