By Andrew McCarthy
There is no impeachment inquiry. There are no subpoenas.
You are not to be faulted if you think a formal inquest is under way and that legal process has been issued. The misimpression is completely understandable if you have been taking in media coverage — in particular, reporting on a haughty Sept. 27 letter from House Democrats, presuming to direct Secretary of State Mike Pompeo, on pain of citation for obstruction, to cooperate in their demands to depose State Department officials and review various records.
The letter is signed by not one but three committee chairmen. Remember your elementary math, though: Zero is still zero even when multiplied by three.
What is portrayed as an “impeachment inquiry” is actually just a made-for-cable-TV political soap opera. The House of Representatives is not conducting a formal impeachment inquiry. To the contrary, congressional Democrats are conducting the 2020 political campaign.
The House has not voted as a body to authorize an impeachment inquiry.
What we have are partisan theatrics, proceeding under the ipse dixit of Speaker Nancy Pelosi (D-Calif.). It raises the profile, but not the legitimacy, of the same “impeachment inquiry” House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) previously tried to abracadabra into being without a committee vote.
Moreover, there are no subpoenas. As Secretary Pompeo observed in his fittingly tart response on Tuesday, what the committee chairmen issued was merely a letter. Its huffing and puffing notwithstanding, the letter is nothing more than an informal request for voluntary cooperation. Legally, it has no compulsive power. If anything, it is rife with legal deficiencies.
The Democrats, of course, hope you don’t notice that the House is not conducting a formal impeachment inquiry. They are using the guise of frenetic activity by several standing committees — Intelligence, Judiciary, Foreign Affairs, Oversight and Reform, Financial Services, and Ways and Means — whose normal oversight functions are being gussied up to look like serious impeachment business.
But standing committees do have subpoena power, so why not use it? Well, because subpoenas get litigated in court when the people or agencies on the receiving end object. Democrats want to have an impeachment show — um, inquiry — on television; they do not want to defend its bona fides in court.
They certainly do not want to defend their letter. The Democrats’ media scribes note the chairmen’s admonition that any failure by Pompeo to comply “shall constitute evidence of obstruction of the House’s impeachment inquiry.” What a crock.
In criminal proceedings, prosecutors demand information all the time and witnesses often resist — just as congressional Democrats encouraged the Justice Department and FBI to resist when Republican-controlled committees were trying to investigate such matters as Foreign Intelligence Surveillance Act abuse. Presumptively, resisting an information request is not evidence of obstruction. It is evidence that the recipient of the demand believes he or she has a legal privilege that excuses compliance. The recipient can be wrong about that without being guilty of obstruction.
Congressional Democrats know this, of course — many of them are lawyers. They are issuing partisan letters that pose legally offensive threats, rather than subpoenas, because this is a show, not an impeachment inquiry. Subpoenas don’t require chest-beating about obstruction. Everyone knows they are compulsory, but everyone also knows they may be challenged in court. Such challenges take time, though, and Democrats are in a hurry to close this show after a short run.
To be sure, the Constitution vests the House alone with the power of impeachment (as opposed to impeachment trials, which are the sole responsibility of the Senate). The judiciary has no authority to tell the House how to conduct impeachment proceedings. And the House is a “majority rules” institution, so if Speaker Pelosi and her partisans want to ipse dixit their way to impeachment articles, no one can stop them.
That said, the courts maintain their authority to protect the legal rights of persons and institutions ensnared in kangaroo tribunals. The fact that House Democrats invite you to their circus does not require you to beclown yourself.
Any competent court asked to evaluate a demand for information under the rubric of impeachment will observe that the process has a history. When the Framers debated whether to include an impeachment clause in the Constitution, they had serious concerns. They were designing a separation-of-powers system that endowed the coordinate branches with checks and balances to police each other. They understood that impeachment authority was necessary, but feared it would give the legislature too much power over the executive.
They also worried that impeachment could be politicized. If it were too easy to do procedurally, or it could be resorted to for trifling acts of maladministration, factions opposed to the president would be tempted to try to overturn elections and grind the government to a halt.
To address these concerns, the Framers adopted a burdensome standard — high crimes and misdemeanors (in addition to treason and bribery) — that would restrict impeachable offenses to truly egregious abuses of power. Then they erected an even higher bar: a two-thirds supermajority requirement for conviction in the Senate.
All this was to ensure that the electoral will of the people must never be overturned in the absence of misconduct so severe that it results in a broad consensus that the nation’s well-being requires removing the president from power.
Although the House has the raw power to file articles of impeachment based on frivolous allegations and minor abuses, the Senate supermajority requirement for removal is designed to have a sobering effect on the lower chamber. Impeachment should not be sought out of partisanship. There must be misconduct that would convince objective Americans, regardless of their politics, that the president must be ousted — not merely criticized or censured, but stripped of authority.
In defending against any congressional demand for information, the president has various privileges against disclosure. Executive components such as the State Department are also repositories of highly sensitive information involving national security and foreign relations — conduct of the latter being a nearly plenary executive authority. The judiciary is generally deferential toward the executive’s claims of privilege. But Congress is given wider latitude to probe in a real impeachment inquiry. When the House, as an institution, endorses such an inquiry in a formal vote, the courts must presume the inquiry is based on a reasonable suspicion of grievous misconduct.
By contrast, any reasonable judge asked to weigh the demands for information presented to Pompeo would not give them the time of day. They do not reflect the judgment of the House. They are reflective, instead, of partisan House leadership that realizes it does not have impeachable offenses — so much so that Pelosi & Co. fear the wrath of voters if Democrats in districts friendly to President Trump are put to the test of voting to authorize a formal impeachment inquiry.
Every presidential impeachment inquiry, from Andrew Johnson through Bill Clinton, has been the subject of bipartisan consultation and debate. The House has recognized that its legitimacy, and the legitimacy of its most solemn actions, must be based on the consideration of the whole body, not the diktat of a few partisan bosses.
Not this one. This one is a misadventure in exactly the bare-knuckles partisanship the Framers feared. To be sure, no one has the power to prevent willful House leadership from misbehaving this way. But we’re not required to pretend the charade is real.
Democrats are mulishly determined to ram through an article of impeachment or two, regardless of whether the State Department and other agencies cooperate in the farce. Their base wants the scarlet-letter “I” attached to Trump. The party hopes to rally the troops for the 2020 campaign against Trump (although smarter Democrats know it could boomerang on them).
If Democrats truly thought they had a case, they wouldn’t be in such a rush — they’d want everyone to have time to study it. But they don’t have a case, so instead they’re giving us a show.
Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His latest book is “Ball of Collusion.” Follow him on Twitter @AndrewCMcCarthy.