It is by no means a certainty that this will happen, and a lot is in flux. But this risk is plausible enough that Democrats should weigh it seriously — right now — as they chart their course forward.
As this new reporting in The Post indicates, Speaker Nancy Pelosi (D-Calif.) is under pressure from a small group of vulnerable members to make the impeachment inquiry “narrowly focused.” The result is an “emerging strategy” built around a “rapid investigation focused mainly on the accusation that Trump urged Ukraine’s president to dig up dirt about a political rival.”
Pelosi and Democratic leaders have not officially declared that this is the sole focus of the inquiry. But Pelosi has told reporters: “The consensus in our caucus is that our focus now is on this allegation.”
If this solidifies as the House Democrats’ official position on the impeachment inquiry in the coming days, however, that brings with it a potential problem.
As you may recall, before the whistleblower scandal blew up, when a majority of House Democrats still remained skittish, the Judiciary Committee had been pursuing its own impeachment inquiry.
In so doing, the Judiciary Committee consciously sought to strengthen its legal hand in court, to compel the administration to comply with its oversight demands, including for materials underlying the special counsel probe and former White House counsel Donald McGahn’s public testimony to the multiple acts of obstruction of justice he witnessed.
The risk now is that, in declaring that the weight of the full House is behind an impeachment inquiry that’s focused only on the Ukraine matter, it could compromise the Judiciary Committee’s effort to fortify its own position in court.
“If the impeachment inquiry is now just focused solely on Ukraine, that could undercut the position Judiciary has taken in court on both the McGahn and the grand jury materials,” Michael Stern, a former House counsel who has extensively analyzed how impeachment proceedings strengthen the House’s legal position in oversight battles, told me.
In court papers, the Judiciary Committee has explicitly cited its inquiry into whether to bring impeachment articles, arguing that it’s entitled to grand jury materials underlying the special counsel investigation, pursuant to a “judicial proceeding.” It has made a similar argument to compel McGahn to appear.
“The question now is, by announcing an impeachment inquiry focused on one thing, will that create the counter-argument that all this other stuff you were doing before — which you said was an impeachment inquiry — was not one,” Stern said.
What Pelosi is really doing
Here it’s important to acknowledge complexities that are getting lost in all the noise about the impeachment inquiry’s focus.
First, note that Pelosi has not formally announced a narrow focus or held a House vote ratifying such a focus. And she has not precluded articles of impeachment on other matters as well, even as she’s publicly declaring that a narrow focus is generally likely.
This appears designed to straddle the gap between political and legal considerations.
On the political front, this protects front-line members who want to say they support an impeachment inquiry only on a matter involving a serious threat to national security. This allows the House to take advantage of the momentary unity on the Ukraine matter to forge ahead quickly on an inquiry, without the deep divisions that have plagued the caucus until now.
At the same time, that posture is supposed to keep matters just vague enough so that the Judiciary Committee can continue arguing it is pursuing its own impeachment inquiry, to maintain its leverage in court.
In this balancing act, one can envision the inquiry proceeding quickly on the Ukraine issue, and then at the end of this process, articles of impeachment that do sweep in other matters — obstruction of justice, and Trump’s endless emoluments clause violations and corrupt self-enrichment off the presidency, which various committees are examining.
Another possibility might be to vote out articles on just the Ukraine matter around Thanksgiving, and then, if Trump’s approval sinks further and the public warms to impeachment, vote out more articles down the road. What’s happening now simply hasn’t precluded such outcomes.
But at the same time, voting out articles on only Ukraine could give moderates a hook to say Trump’s been held accountable and it’s time to move on. And this approach risks inconsistencies with the current Judiciary Committee posture, with the legal dangers that may entail.
One could also argue that an opportunity is being squandered to firmly declare, now, that the House is fully behind an impeachment inquiry into Trump’s corruption on multiple fronts: his obstruction of justice; his nonstop self-dealing; his use of the presidency to press a foreign power to interfere in a U.S. election on his behalf; and his staff’s corrupt manipulation of whistleblower and classification procedure to cover it up.
A full House vote on a resolution declaring as much would remove any legal ambiguities. And a broader inquiry would not be hard to “message,” either. The unifying thread: On one front after another, Trump has placed his personal and political interests before those of the nation, and in so doing, has serially betrayed the country.
Bottom line: The current posture is perhaps understandable given the messy politics inside the caucus. And it doesn’t have to lead to overly limited impeachment in the end. Of course, it risks some very bad outcomes, as well, and it’s not clear these risks are necessary, just to placate the front-line members.