Not with a bang but a whimper.
That’s how T. S. Eliot completed his sentence This is the way the world ends… in his celebrated poem The Hollow Men. It could also be a finale to the sentence, This is how impeachment starts…
After 200+ days of beseeching House Democrats to begin impeachment proceedings — and, following the release of the Mueller report, screaming at them to get started — we suddenly found out on Friday that an “impeachment inquiry” has essentially begun. As with so many other things when it comes to the courts and Congress, it can all be very confusing.
On Friday, the House Judiciary Committee filed a lawsuit in federal court seeking the release of secret grand jury testimony collected by the Mueller team in the course of the Russia investigation. Normally such testimony is kept secret and never released publicly. Why not? Because a grand jury inquiry is not a trial court. Grand juries work under the direction of a prosecutor, there is no judge to insure fairness, and the defendant does not even have legal representation nor the chance to offer a defense. And there is no burden of proof in order to issue an indictment. All of those elements — a fair-minded judge, a jury of one’s peers, defense counsel, and strict definitions of what constitutes proof of guilt, only come when someone has been indicted and goes on trial.
So releasing grand jury testimony would not be fair to a defendant. Hence, grand jury testimony is kept secret. Only the trial records are released publicly.
The only exception to this rule is that grand jury testimony can be released for use in another judicial inquiry. Over the years, courts have clearly held that an impeachment proceeding in Congress constitutes a judicial inquiry.
In its filing on Friday, the Judiciary Committee made clear that it’s request for the Mueller grand jury testimony is directly related to Congress’ impeachment authority. From the Committee’s filing…
Because Department of Justice policies will not allow prosecution of a sitting president, the United States House of Representatives is the only institution of the federal government that can now hold President Trump accountable for these actions…
To do so, the House must have access to all the relevant facts and consider whether to exercise all its full Article I powers, including a constitutional power of the utmost gravity — approval of articles of impeachment. (Complete court filing, PDF)
So yesterday’s court filing by the Judiciary Committee constitutes an official announcement that the House has begun impeachment proceedings. Or an impeachment inquiry. Whatever. It’s a weird way to do it, to be sure, but this is a big deal.
So why didn’t Congress do this sooner? After all, the legal experts have been saying all along that the Mueller report contains sufficient evidence of criminal conduct by #RacistPresident to bring articles of impeachment. Clearly, it was a purely political decision to move slowly and cautiously. I was one of those strenuously calling on Congress to act on the Mueller evidence. Now!
But now that I understand the full import of yesterday’s court filing, I find that I think this approach is better. Here’s why.
You’ll recall a lot of talk along the lines of “even if the House impeached, the Senate would be certain not to convict.” And that’s true, although it was not, I think, a reason not to proceed. It is abundantly clear that Congressional Republicans are not going to act based on a single word in the Mueller report. How can they, after all? They’ve been calling it bogus from day one.
However, Friday’s court filing opens up a least the possibility of flipping some Republicans because it will allow the Judiciary Committee to obtain evidence that is not in the Mueller report. And that evidence may be even more damning than the Mueller report.
By formally invoking the question of impeachment in a federal court, all the subpoenas that Congress has issued so far — and which #RacistPresdent has resisted — suddenly have a lot more potency. We can expect to see the courts ruling that the administration must comply with the subpoenas, because Congress is exerting its sole Constitutional authority to hold the executive branch accountable. The Executive Branch cannot deny Congress its rights and duties under the Constitution.
So let’s consider what new, non-Mueller evidence might be unearthed.
First, there’s the grand jury testimony under current consideration. At the recent Congressional hearings, Mueller implied that he thought #RacistPresident and many of his aides may have lied in their responses to questions. The grand jury testimony might lead to additional witnesses being called before Congress who will confirm that.
If it can be shown that #RacistPresident lied in his written responses to Mueller, might that flip a Republican senator or two? I think it just might.
But wait, there’s more!
Remember that the House Ways and Means Committee is currently fighting in court to get #RacistPresident’s tax returns. During the Nixon impeachment inquiry, Nixon’s tax returns were turned over to Congress without a fight because the White House knew it would lose that fight in court. The tax returns didn’t figure into Nixon’s criminality in the end. In the present case, however, it is likely that the tax returns will serve as a roadmap to the Trump family syndicate and it’s criminal enterprises.
If there’s substantial evidence of deep financial ties between #RacistPresident and Russian oligarchs, I have to think that would change the minds of more than a few Republican senators.
And how about the subpoena that’s out there for the Trump Organization’s business records? And there’s one for #RacistPresident’s accountants. When Congress starts going through those documents, the flipping sound you’ll hear in Congress may just become deafening.
I still think the House should have started impeachment proceedings based on the Mueller report. It was a cynical, political maneuver not to. But here we are. And where we are, I think, is a place where we can actually start to imagine impeachment and conviction. And I’m okay with that place.