Don’t let anybody fool you: We are engaged in an impeachment inquiry into President Donald Trump’s “high crimes and misdemeanors,” to quote the Constitution. The inquiry began on Friday, July 26. No fireworks, no fanfare — omitted for fear of frightening the natives. But the message was loud and clear in the House Judiciary Committee’s court petition for access to redacted material in the Mueller report, and its intention to compel testimony from relevant witnesses.
Articles of impeachment have been formally referred to the Judiciary Committee for its consideration, House counsel Douglas Letter said in the Friday filing to U.S. District Court for the District of Columbia. That consideration, the committee has now informed the court, is underway, as is consideration of whether to recommend its own articles of impeachment.
Savvy House Speaker Nancy Pelosi, to spare the Democrats in red and purple congressional districts from facing electoral revolt, gave Judiciary Chairman Jerrold Nadler the go-ahead without first holding a floor vote on whether to conduct hearings into the president’s impeachment. And you can be sure Trump’s lawyers will argue in court that the absence of that politically costly floor vote means the impeachment inquiry does not have the legal superpowers such an inquiry normally acquires — and that are needed to prevail on judicial unsealing of secret grand jury materials and ordering fact witnesses like former White House counsel Don McGahn to testify under oath to what they know Trump did to win office and to cover up what he did to stay there.
That argument could succeed but shouldn’t, and probably won’t. There’s no way courts could avoid the reality or the appearance of being blatantly partisan if they were to muck around in the details of how the speaker of the House chooses to orchestrate the initiation of an impeachment inquiry. And Pelosi's critics who call her a coward for being subtle about how she is launching this particular inquiry seem to be more interested in the political optics than in the reality of holding this president accountable for his grave offenses against the United States.
Consider how strange it would be for a court to determine that the Judiciary Committee did not possess whatever special investigatory powers accompany a full-on impeachment proceeding. The law then would absurdly require the House to exercise its “sole power of impeachment” in the dark, without access to the information it needs to make the most serious and fateful decisions. Silly as the legal system sometimes seems, it’s just not that stupid.
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As Nadler said Sunday on ABC News’ "This Week": “The history of impeachments is that sometimes the House has authorized the Judiciary Committee to begin (an) impeachment inquiry. Sometimes the Judiciary Committee has done it on its own.”
I strongly criticized Pelosi for failing to unleash Nadler and the other committee chairs sooner, but let me be among the first to sing her praises now. She and Nadler and Intelligence Committee Chairman Adam Schiff are doing exactly what needs to be done.
Yes, it’s already clear to many — including each of them and me as well — that we now know enough to say that Trump became president with the criminal help of a foreign adversary, help he welcomed and exploited, and that the Constitution’s framers would surely have impeached and removed him for his many treacherous acts against the nation. No further factual inquiry is really needed to reach that conclusion.
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But the nation remains to be convinced that this is so — and that the risks and difficulties it will entail are worth it, especially with the 2020 election just around the corner. Our Founders would need no more persuading before approving articles of impeachment. But they’re not here to exercise that awesome responsibility. The duty falls to us, the living, to do all we can to preserve what they bequeathed us. And that’s the path on which we have at long last embarked.