This increase in pressure, however, is deepening the divide among House Democrats, according to new reports. It’s causing more moderate members to dig in harder against an inquiry — with some engaging in flagrantly absurd efforts themselves to downplay Mueller’s testimony, a task that should be left to Trump’s spinners.
Fortunately, there is an answer to this problem: The House Judiciary Committee can launch an impeachment inquiry independently, without any vote by the full House.
In an interview, Rep. Jamie B. Raskin (D-Md.), a member of the Judiciary Committee, suggested to me that it’s only a matter of time until the committee formally considers drafting articles of impeachment on its own.
“Somebody has to write articles of impeachment to focus this investigative and analytical process,” Raskin told me. “If not the Judiciary Committee, who is going to do it? This is our job.”
Raskin suggested that this is where the process is inevitably heading already.
“The Constitution leaves it up to Congress how to structure impeachment proceedings,” Raskin told me. “There are many different ways to get there. It can arise from floor action. It can arise within the Judiciary Committee itself.”
“I’m convinced that articles of impeachment are going to originate from the House Judiciary Committee,” Raskin said. “The question is just when.”
This is under active consideration by the Judiciary Committee chairman, Rep. Jerrold Nadler (D-N.Y.). The New York Times reports that anonymous sources say Nadler has become convinced that his committee should move forward with its own inquiry.
A better way forward
Politico reported recently that Nadler raised the idea with House Speaker Nancy Pelosi (D-Calif.), who shot it down. But Judiciary Committee members have grown convinced that launching an inquiry is important for the pragmatic purpose of increasing Democrats’ legal leverage to overcome the Trump administration’s maximal resistance to oversight on all fronts.
Specifically, Democrats want to compel former White House counsel Donald McGahn — who witnessed multiple, damning instances of Trump obstructing justice — to testify to Congress, over the White House’s objections.
The House is set to sue to make this happen, with the goal of getting a judge to rule on the administration’s claim that the White House can assert “absolute immunity” to such requests. If Democrats win that, it could compel more cooperation on other fronts.
But an impeachment inquiry would make that more likely to succeed. As the Times reports, Judiciary members believe a unilateral inquiry without a full House vote would accomplish that goal:
Doing so, they think, would strengthen their hand in the courts and potentially persuade judges to move more quickly on cases like the potential one against Mr. McGahn, while building on any momentum generated by Mr. Mueller.
If Judiciary Committee Democrats themselves believe this, then they should feel obligated to launch an inquiry.
How Democrats can do this
One objection here might be that if the Judiciary Committee does launch its own inquiry, that might compel Pelosi and other moderates to say it shouldn’t be happening, further deepening the split.
But Democrats I spoke with believe there’s a way to avoid this pitfall. Judiciary Democrats can say they’re formally considering drafting articles of impeachment. This could entail hearings that examine Trump’s misconduct — and feature experts on high crimes and misdemeanors and impeachment history — with an eye towards determining what, precisely, such articles of impeachment should say.
This would have the virtue of being procedurally proper, and in keeping with what history tells us about how this process is supposed to work.
It would also give Pelosi and moderates a way to respond that doesn’t politically inconvenience them or the caucus as a whole. They can say the full House is not involved in an impeachment proceeding and that the relevant committee is simply examining whether it will ultimately draft articles of impeachment.
What’s more, since this would also maximize Democrats’ legal leverage, it would also avoid the risks of inaction. If the committee does not do this and Democrats lose some of these oversight battles in court, it might be too late at that point to commence an inquiry — because of the looming election — and the chance to enhance the odds of legal success would have been lost, leaving oversight neutered.
Moderates are going too far
The current process is a mess. Liberals and moderates are raging at each other and getting nowhere. Moderates are actively downgrading Mueller’s findings to stave off pressure for an inquiry. Centrist Rep. Jeff Van Drew (D-N.J.) actually said of Mueller’s testimony: “I didn’t see anything amazing. I mean, did you? He looked tired.”
I have written sympathetically about the moderates. We should take seriously that they inhabit Republican-leaning districts. But it’s not defensible for them to downplay all we’ve learned.
Mueller testified powerfully to Trump’s deep betrayal of the country (extensive efforts to encourage and collaborate with a foreign attack on our political system), which Mueller has now confirmed Trump might have lied to investigators about. Mueller recounted rampant corruption and lawlessness (extensive and likely criminal obstruction of justice and efforts to severely degrade law enforcement and other institutions).
Moderates should be able to oppose an inquiry without minimizing these profoundly serious matters. If the Judiciary Committee launches its own inquiry, it creates a way out of this impasse. It will channel the left’s energy into the constructive activity of examining what impeachment articles should look like. Moderates can distance themselves in a less damaging way that doesn’t keep provoking endless firefights.
Over time, the arguments on either side of the core question — whether Trump’s extensive corruption and wrongdoing constitutes high crimes and misdemeanors, and whether that merits impeachment — can play out, and we’ll learn which is more persuasive.