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Democrats Should Keep Impeachment Threat Hanging Over Trump

Democrats Should Keep Impeachment Threat Hanging Over Trump

(Bloomberg Opinion) -- Impeachment talk is still increasing in the House of Representatives. Even though Nancy Pelosi and other Democratic leaders believe the best weapons – at least for now – against Donald Trump’s obstruction of justice and abuses of power are continuing investigations and court actions outside of an impeachment context, Trump’s stonewalling has pushed more and more Democratic members of the House toward at least opening an impeachment inquiry. It’s also pushed one Republican, Michigan libertarian Justin Amash, to call for impeachment.

Indeed, some are arguing that Trump may be the one who wants impeachment – as a 2020 general election strategy.

I’ve made the case against a strictly partisan impeachment, which is, apart from Amash, the only option available now. But what about the possibility of at least formally opening an impeachment inquiry? There’s a better case for that, one that even Pelosi acknowledged on Wednesday: “I'm not sure we get more information if we do an impeachment inquiry. But if so, that's a judgment we have to make." Overall, however, Democrats are probably better off holding off for now – while keeping the threat very much alive.

The strongest case for a formal impeachment inquiry is that it might well strengthen the Democrats’ court fight against Trump’s stonewalling, as the Washington Post’s Greg Sargent has been arguing. It’s wrong to say that an impeachment inquiry “doesn’t change a darn thing,” as Zoe Lofgren was quoted as saying in the House Democratic meeting Wednesday morning. That’s because the administration’s current claim – that information the House wants for oversight hearings has no legislative purpose – would be irrelevant if the purpose were fact-finding for an impeachment inquiry. An impeachment context might also push the courts to act more quickly, defeating Trump’s apparent strategy of trying to run out the clock on House oversight.

However, there are other considerations at work here. One is that a formal impeachment inquiry would give the president new procedural advantages, at least if the Judiciary Committee followed precedent – as it should. Molly Reynolds and Margaret Taylor note that in 1974 and 1998 “the president and his counsel were invited to attend all executive session and open committee hearings, and the president’s counsel was entitled to cross-examine witnesses, make objections regarding the pertinence of evidence, respond to the evidence produced and even suggest additional evidence the committee should receive.” None of that happens in the context of regular oversight hearings. Of course, Republican members of the relevant committees would be able to act on behalf of the White House, but that’s not quite the same thing.

There’s also an institutional question at stake. Congress should not be conceding to Trump’s preposterous argument against normal legislative oversight. Yes, it’s not quite as cut-and-dried as subpoenas in an impeachment context, but it’s still pretty well established that Congress can do these sorts of investigations, and it would be unfortunate if the House abandoned its prerogatives in this area without a fight. (If the five Republican-nominated Supreme Court justices would be willing to find for the White House in the legislative context, they might find some far-fetched reason to do so even in the more outlandish case of fact-finding for an impeachment inquiry.*

Overall, then, I don’t think the justification of helping the House’s legal position is a convincing reason to shift hearings and investigations to a formal impeachment inquiry, especially because the House’s legal position is winning, although that could change if court cases begin going the other way.

The other arguments for a formal impeachment inquiry are far weaker. One is that formal impeachment hearings would affect public opinion:

But this depends on an assumption the “impeachment hearings” would receive far more news coverage and have a greater effect on public opinion than regular oversight hearings. There’s no real reason to believe that, however. In the Watergate case, Nixon’s approval ratings collapsed in large part because of hearings outside of the impeachment process; by the time the House Judiciary Committee got started, Nixon had already bottomed out. And in the Clinton case, it’s hard to argue that impeachment hurt him at all.

It does seem likely that an impeachment process would make it harder for voters to remain in the murky middle of opposing Trump but also opposing impeachment. But it’s not at all clear that would hurt Trump’s overall support. Democratic voters from that group would probably shift toward supporting impeachment, but Republican voters might well avoid inconsistency by shifting toward supporting Trump. Oversight hearings outside of the impeachment process might actually be more effective at turning voters against the president – and, ultimately, toward impeachment.

The other argument I’ve seen for impeachment, or at least an impeachment inquiry, is that failing to do so would essentially be letting Trump get away with his misdeeds, and an invitation to him and future presidents to obstruct justice and abuse power. This is, however, just the politician’s fallacy: We must do something; this is something; therefore we must do this. The bottom line at this point is that an impeachment inquiry, or even a full House impeachment, cannot stop Trump from getting away with anything as long as the Senate votes against removal. It is, as I’ve argued before, simply the wrong tool for the present situation.

All of that said: Keeping impeachment as a viable threat certainly makes sense. So it’s not at all a bad thing for many House Democrats to be urging impeachment, and for leaders, including Pelosi, to treat it as a real option. After all, the more it appears that Democrats can be united in favor of impeachment and removal and can realistically hope for at least some Republican support, the more it becomes a stronger choice. In the meantime, however, the House should be moving forward aggressively to put together hearings demonstrating exactly what the president and his people did wrong, and to continue running down all the threads that Robert Mueller left hanging or that were beyond the scope of his investigations. And while they should keep fighting to enforce subpoenas, they shouldn’t wait for those fights to be resolved to get started. 

To contact the editor responsible for this story: Philip Gray at philipgray@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.

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