Moreover, the House committees can be stonewalled by the executive (although few would have anticipated, I think, the total, run-out-the-clock tactics of the current administration). Basketball fans will recognize this as a form of “stall ball.”
What I propose is a kind of “shot clock” remedy that can augment the House investigatory process in light of presidential obstruction. I would favor a statute that provided for fast-track court hearings and expedited appeals as a way of curtailing the tactic of complete refusal to cooperate with requests for documents and testimony under oath before the House oversight committees. If the individuals subpoenaed still failed to comply after a court ordered them to do so, they could be held in contempt with all the political repercussions that would attend such a rebuke. At a minimum, it would be difficult to avoid the inference that something truly odious was being hidden.
Impeachment needs the legitimacy that the courts can provide, and it also needs timely and sufficient testimony. It simply cannot be that an administration can claim that the charges against it are without sufficient evidentiary bases and at the same time prevent the Congress from gaining access to the relevant evidence.
Congress should put uncooperative witnesses in jail—or at least remember that it can.
Mary Frances Berry is the Geraldine R. Segal Professor of American Social Thought and Professor of History at the University of Pennsylvania. She is the author of 12 books, including Why ERA Failed: Politics, Women’s Rights, and the Amending Process of the Constitution.
Impeachment is not broken enough to require the almost impossible effort to amend the Constitution, which was deliberately made difficult to achieve. But given widespread frustration over the process, the House and Senate could make some changes before the next impeachment surfaces. These are simple changes in public relations and procedure which might increase confidence (even among participants) in the process, and reduce public polarization.
The House and Senate have powers that should be used next time if members believe the issue is serious enough for impeachment. Both chambers can hold witnesses in contempt and keep them under guard until they produce documents or agree to testify, even if witnesses subsequently assert Fifth Amendment immunity by refusing to discuss substance. Last used in 1935, Congress’ contempt power would be sure to trigger a backlash if used to hold Donald Trump or close associates in jail until they agreed to testify—but it’s a tool of last resort, and available in dire circumstances like these. A majority of the House or Senate must vote in favor. Obviously, if the House majority is prepared to impeach, it might also get the votes to approve contempt and detention.
Second, the House, and afterwards the Senate, should bend over backwards to appear apolitical. That means, for example, not using hearsay testimony to prove statements that the person being investigated made any particular statement. The investigation should not include witnesses to facts who are explaining what someone told them rather than what they actually heard or saw firsthand. Many Americans have seen trials at least on television and know that hearsay is usually inadmissible.
“Is a process that’s undelineated, discreet and cautious broken? I don’t think so.”
Brenda Wineapple is author of The Impeachers: The Trial of Andrew Johnson and the Dream of a Just Nation, recently published by Random House.
Impeachment is a court of last resort—not a criminal court but one convened to curb such offenses as the treason, bribery or high crimes and misdemeanors allegedly committed by a civil officer. In the United States, most impeached officers have been federal judges but, as we know by now, there have been only two American presidents who have actually been impeached, Andrew Johnson and William Jefferson Clinton. In both cases, the House voted to impeach and then the Senate, per the instructions of the Constitution, put the presidents on trial.
But the Constitution is a guideline, not a handbook. It does not define the terms “high crimes and misdemeanors,” which is what seems to stick in the throat of the process. For what are they? In Federalist 65, Alexander Hamilton clarified—sort of: a high crime is an abuse of executive authority, proceeding from “an abuse or violation of some public trust.” Impeachment is a “national inquest into the conduct of public men.” Murky: Are impeachments to proceed because of violations of law—or infractions against that thing called public trust? The answer is both, though it’s absolutely true that the civil officer need not have broken a specific law—to have stolen a chicken, for instance, or have crossed the street against the lights. Rather, the framers of the Constitution were aware that anyone in a position of power must be held accountable for their actions in order to maintain a responsible and good government. To prevent an unprincipled demagogue from acting above the law, the framers thus incorporated impeachment into the Constitution, precisely to prevent corruption from within, keep elections free of foreign powers, and avert obstruction of justice or abuse of power.
That’s where we are today, and what the legal scholars before the House Judiciary Committee told us on Wednesday. If a majority in the House of Representatives votes to impeach, the Senate, with the chief justice presiding, will conduct a trial to determine whether the president will be removed, which he will be, if two-thirds of the Senate concur. That’s the process. The Constitution does not specify how the trial is to be conducted, what constitutes evidence, who may object to that evidence, who might testify, or even if a president can or should. And remember: The impeachment trial takes place in the Senate, a legislative body, not a court of law.