The Constitution is presently used by both major political parties defending or opposing the House Intelligence Committee impeachment inquiry against President Donald J. Trump. Both argue their loyalty to it.
It reads: “The House of Representatives … shall have the sole Power of Impeachment,” (Art. I, Sec. 2, Cla. 5). The people place a president in power and their representatives—the House—alone initiates and formulates the charges for his possible removal. The “Senate shall have the sole Power to try all Impeachments.” So one indicts, the other tries. Simple enough.
But formulating the charges does require a favorable vote of the FULL House,-not just a committee. Therein lies the rub. The House Intelligence Committee charged with finding a crime hasn’t yet found bribery, treason or any high crime, —the only impeachable offenses— but it “knows” one exists somewhere. During three years of a dozen or more attempts to impeach Trump charges crumbled from lack of documentation.
Probably the most profound statement made regarding impeachment was made by Democrat Jerrold Nadler, Chairman of the House Judiciary Committee, presently engaged in impeaching Trump: “The effect of impeachment is to overturn the popular will of the voters. We must not overturn an election and remove a President from office except to defend our system of government or our constitutional liberties against a dire threat, and we must not do so without an overwhelming consensus of the American people. There must never be a narrowly voted impeachment or an impeachment supported by one of our major political parties and opposed by another. Such an impeachment will produce divisiveness and bitterness in our politics for years to come, and will call into question the very legitimacy of our political institutions” (144 Cong. Rec. HI 1786 daily ed. Dec. 18, 1998). This Nadler argued during the impeachment proceedings of Bill Clinton.
Using Nadler’s criteria Donald Trump does not pose a “dire threat” to our system of government or constitutional liberties, there is no “overwhelming consensus,” and only the Democratic Party is working for his removal. Most Americans oppose impeachment.
The Constitution give the House sole power to create the charges against a president. Additional authority is housed under past practice which in time effectively adds to the Constitution unless found to conflict with an original part of the document.
Only Andrew Johnson, Richard Nixon, and Bill Clinton have been indicted. House past practice in each has been based upon fairness. In each a vote of the full House was required to initiate an impeachment inquiry, for Nixon the vote was 410-4 and for Clinton 258-176 (See H. Res. 803, 93rd Cong. 1974 and H. Res. 581, 105th Cong. 1998). The full House participated in defining the scope of impeachment and established its rules and procedure. After the vote was taken to form an impeachment inquiry both the chair of the inquiring committee and the ranking member of the opposing party had co-equal subpoena powers to call witnesses subject to a vote of the full committee upon the request of either.
The indicted president’s council participated. It exercised the right to attend all hearings and depositions, to present evidence, to object to the admittance of evidence, to cross-examine witnesses and to recommend a witness list.
Thus far Nancy Pelosi has opposed a full House vote to authorize an impeachment inquiry as was established in previous impeachments nor has the full House been given input in “defining the scope, rules and procedures” as before. The Committee Report accompanying H. Res. 581 developed in the Clinton impeachment stated: “The full House of representatives should be involved in critical decision making regarding various stages of impeachment.”
One serious constitutional provision yet remains in our consideration of the attempt to impeach Trump—due process. This is housed in several places in the Constitution especially Amendments 5, 6, and 14. Democrat Jerrold Nadler referenced them when Bill Clinton was impeached, “the power of impeachment demands a rigorous level of due process … the right to be informed of the law, of the charges against you, the right to confront the witnesses against you, to call your own witnesses and to have the assistance of counsel” (Hearing before the Subcom on the Constitution of the H. Comm. on the Judiciary 105th Cong. 17, 1998). These have not been extended to Trump.
As Trump’s council recently wrote. “These due process rights are not a matter of discretion for the Committees to dispense with at will. To the contrary, they are constitutional requirements. The Supreme Court has recognized that due process protections apply to all congressional investigations…[even] impeachment proceedings” (Pat A. Cipollone, Counsel to the President White House, October 8, 2019).
Thus far none of the above established practices have been followed in the case of the proposed impeachment of President Trump, especially due process. No House vote and no formation of an impeachment inquiry committee after the vote. Pelosi simply asked the House Intelligence Committee, led by Adam Schiff, to assume the responsibilities and he is behaving as though his committee will do it alone including the trial constitutionally reserved to the U.S. Senate. Moreover, Schiff has been holding secret hearings of witnesses denying House Republican observers of other committees. He forcibly removed colleague Matt Gaetez .
Clearly, respecting impeachment, Democrats are sloppy with the Constitution.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He taught history and political science from this perspective for over 30 years at Taft College. Newspapers have permission to publish this column. To read more of his weekly articles, please visit www.LibertyUnderFire.org.
