In a “Dear Colleague” letter, Speaker Nancy Pelosi (D-Calif.) explained that “the President, his Counsel in the White House, and his allies in Congress have made the baseless claim that the House of Representatives’ impeachment inquiry ‘lacks the necessary authorization for a valid impeachment proceeding.’ They argue that, because the House has not taken a vote, they may simply pretend the impeachment inquiry does not exist.” Pelosi is right that this argument is baseless, but does not specifically mention last week’s federal court opinion reaffirming the House’s position.
Former prosecutor Mimi Rocah tells me that she finds it “slightly surprising they would do the vote now that a federal judge just ruled on Friday that it is a legitimate inquiry in a persuasive opinion.” Nevertheless, she notes that “doing the vote before an appeal means that point should be moot on appeal, and so this district court ruling will stand regardless.”
Pelosi continued, “This week, we will bring a resolution to the Floor that affirms the ongoing, existing investigation that is currently being conducted by our committees as part of this impeachment inquiry, including all requests for documents, subpoenas for records and testimony, and any other investigative steps previously taken or to be taken as part of this investigation.” She adds that this will set out the procedure “for hearings that are open to the American people, authorizes the disclosure of deposition transcripts, outlines procedures to transfer evidence to the Judiciary Committee as it considers potential articles of impeachment, and sets forth due process rights for the President and his Counsel.”
She says, “We are taking this step to eliminate any doubt as to whether the Trump Administration may withhold documents, prevent witness testimony, disregard duly authorized subpoenas, or continue obstructing the House of Representatives.”
So why bring this up now, especially after a court held in Democrats’ favor? One possibility is that in preparing an article of impeachment on obstruction of Congress, Pelosi does not want to leave a crack open whereby Trump’s lawyers would say, well, he had a good-faith belief the impeachment process was not officially underway.
Constitutional scholar Laurence Tribe approves of Pelosi’s move. “This resolution makes perfect sense now that the House leadership has wisely decided to forgo further judicial jockeying and to move expeditiously to public hearings,” he argues. “Calling the Trump administration’s bluff this way will make it clear that the continued stonewalling of the administration — and of those current and former officials who use the administration’s gag order as an excuse for seeking what amount to advisory judicial opinions on whether to comply with congressional subpoenas — is just a stalling tactic, not a good-faith effort to resolve conflicting obligations when confronted with a subpoena from Congress and a directive from the White House to defy that subpoena.”
Tribe also underscores that the resolution does not “authorize” impeachment but instead “affirms” it is underway. He says, “By taking that course, the speaker smartly avoids conceding that there was any infirmity in the inquiry prior to this authorization vote.”
As Rocah did, Tribe points out that the decision from Judge Beryl Howell last week could always be appealed, so now is a good time to foreclose further litigation.
Former prosecutor Joyce White Vance concurs. “Democrats are increasingly cutting off the legal escape routes while developing the facts," she tells me.
In sum, fresh from a court win and sensing the Republicans are in disarray, Pelosi is not only willing but looking forward to taking the winds out of Republicans’ sails. She conveys an aura of confidence and highlights progress made in the investigation. So what are the Republicans going to do once they cannot grouse about process? They might actually have to confront the unpleasant reality that the facts establish Trump committed impeachable conduct. It will be fascinating to see what they do then.