By Lambert Strether of Corrente
You blind guides! You strain out a gnat but swallow a camel. –Matt 23:24
Patient readers, I had originally intended to compare and contrast the statements of the four lawyers (Feldman, Karlan, Gerhardt, and Turley) appearing before the House Judiciary Committee. But I changed course, for a few reasons: First, Feldman, Karlan, and Gerhardt simply didn’t produce serious documents; all were short, and Karlan’s wasn’t even footnoted, whether to facts, or to law. Turley’s statement at least showed signs of legal reasoning, as opposed to preaching to the choir, but there’s no point my summarizing it; you can just read it. Second, since the House Judiciary’s report on the “Constitutional Grounds for Impeachment” followed so soon after the lawyers’ testimony that it could hardly have been influenced by it, their testimony was evidently for show. Finally, this abbreviated Season 2 of Impeachment!, “UkraineGate,” reminds me of nothing so much as Gish Gallop: There’s too much to track in the time frame available, the few trustworthy interpreters are overwhelmed, and that’s by intent. (Season 1, “RussiaGate,” was more of a Gish stroll by comparison.)
So I’m going to do something completely different. Conventional wisdom agrees that when impeaching a President, the House plays the role of the prosecutor, and brings and prosecutes the indictment; and the Senate then tries the case. From Senate.gov, just as a change from citing the Federalist Papers, which I too shall get to:
In impeachment proceedings, the House of Representatives charges an official of the federal government by approving, by majority vote, articles of impeachment. A committee of representatives, called “managers,” acts as prosecutors before the Senate.
The question nobody seems to be asking is whether the House, in this impeachment inquiry, is acting as a prosecutor should act. That is the question I will ask in this post. (I’m sensible that we have actual prosecutors in the readership, and so I’m going out on a limb here; the fact that nobody I can find has gone out on this particular limb doesn’t mean that it is, or is not, a good limb to go out on. We’ll see!)
So, assuming the House to be performing the role of a prosecutor, how should a good prosecutor act? From the American Bar Association, “Criminal Justice Standards for the Prosecution Function“:
. The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances. The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.
What then is justice? Philosophers differ, but here is a definition from which “the rule of law” (of which we hear so much) can be derived. From the Stanford Encyclopedia of Philosophy:
The third aspect of justice to which Justinian’s definition draws our attention is the connection between justice and – that is what the ‘constant and perpetual will’ part of the definition conveys. Justice is the opposite of arbitrariness. It requires that …. Following a rule that specifies what is due to a person who has features X, Y, Z whenever such a person is encountered ensures this. And although the rule need not be unchangeable – perpetual in the literal sense – it must be relatively stable. This explains why justice is exemplified in the rule of law, where laws are understood as general rules impartially applied over time. Outside of the law itself, individuals and institutions that want to behave justly must mimic the law in certain ways (for instance, gathering reliable information about individual claimants, allowing for appeals against decisions).
The Law Dictionary conceptualizes the requirement for “impartial and consistent application of rules” as fairness. From “The Four Pillars of the Rule of Law“:
It’s one thing for the laws to be written fairly, but if they are enforced in such a way that is either arbitrary or unfair then the rule of law begins to break down. For example, if a jurisdiction passes laws against drug use, but then only enforces those laws against a particular ethnic minority or social group, then the laws are not being enforced fairly. Citizens living under a rule of law system have a right to know that the laws are being administered and enforced in a way that is fair and accessible.
There are many theories of justice, but surely the “impartial and consistent application of rules” is understood by lay readers as fundamental. From the Washington Post, “The U.S. court system is criminally unjust“:
We like to believe that decisions made in U.S. courts are determined by the wisdom of the Constitution, and guided by fair-minded judges and juries of our peers.
Unfortunately, this is often wishful thinking. Unsettling research into the psychology of courtroom decisions has shown that our personal backgrounds, unconscious biases about race, gender and appearance, and even the time of day play a more important role in outcomes than the actual law.
Having established that the House, when impeaching a President, acts as a Prosector, that the duty of a prosecutor is not merely to seek conviction, but justice, let’s now ask ourselves whether the House, assuming it to have impeached Trump, will have acted in accordance with its duties, or not.
As a sidebar, it may be urged that unlike a prosecutor’s office, the House has no permanent prosecutorial function. Indeed, House.gov seems, unlike the Senate, to have no page on impeachment at all; and the House is structured very differently:
The House is the only branch of government that has been directly elected by American voters since its formation in 1789. Unlike the Senate, the House is not a continuing body. Its Members must stand for election every two years, after which it convenes for a new session and essentially reconstitutes itself—electing a Speaker, swearing-in the Members-elect, and approving a slate of officers to administer the institution. Direct, biennial elections and the size of the membership (currently 435 voting Representatives) have made the House receptive to a continual influx of new ideas and priorities that contribute to its longstanding reputation as the “People’s House.”
It could be argued, then, that the “rules” for impeachment need only to be consistent during the two years of a House session, and could then be changed at the next session, an evident absurdity since the President serves for four years, and could presume himself acting unimpeachably for two years, and then be impeached, for the same acts, in the third. Clearly, some sort of institutional memory of what is impeachable and what is not, even if tacit, must be shared among the three branches of government and the public — even if not adhered to by all. Fortunately, for Trump’s impeachment, we have such repository in the person of the Leader of the House — one might call them the Chief Prosecturor — Nancy Pelosi, to whose remarkable statement I now turn. End sidebar.
Here is how Nancy Pelosi describes her past exercise of her prosecutorial function (in this case, declining to prosecute:
— CNN (@CNN) December 6, 2019
Here is the transcript, which is extremely verbose:
DEAN CHIEN, STUDENT, JOHNS HOPKINS UNIVERSITY: So, Speaker Pelosi, you resisted calls for the impeachment of President Bush in 2006, and President Trump, following the Mueller report earlier this year.
This time it’s different. Why did you impose – why did you oppose impeachment in the past? And what is your obligation to protect our democracy from the actions of our President now?
PELOSI: Thank you. Thank you for bringing up the question about – because when I became Speaker the first time, there was overwhelming call for me to impeach President Bush, on the strength of the war in Iraq, which I vehemently opposed, and again not – again, I – I say “Again,” I said – said at other places that I – that was my we – all has always (ph) Intelligence.
I was Ranking Member on the Intelligence Committee even before I became part of the leadership of Gang of Four. So, . It just wasn’t there.
. And to this day, people think – people think that that it was the right thing to do.
If people think that Iraq had something to do with the 9/11, I mean it’s as appalling what they did. But I did – and I’ve said, if somebody wants to make a case, you bring it forward.
(Remarkably, or not, Pelosi kept her knowledge that the Iraq War was built on lies secret from the public. This doesn’t strike me as the right approach to “a Republic, if you can keep it.”) First, apparently a President’s “misrepresentation to the public” that led to war — a war that resulted, even in the early years of the war, in tens of thousands of civilian deaths, thousands of American deaths, hundreds of billions of dollars, and the Abu Ghraib torture scandal — is not a “high crime or misdemeanor.” Pelosi would have us believe that Bush’s disinformation campaign was not, as Madison writes in Federalist 65, a case of “misconduct of public men, or, in other words…the abuse or violation of some public trust.” And why? Because “[Bush] won the election.” Except Pelosi gets the timeline wrong. Bush won his election in 2004. The Democrats took back the House in 2006 — how we cheered, then; it was almost as satisfying as Obama’s inaugural — based in large part on Bush’s botched handling of Iraq. Pelosi “won the election.” And then didn’t do anything with her power.
Let’s ask a little consistency from our Chief Prosecutor, shall we? Because that’s what justice demands? If “misrepresentation to the public the public” in service of taking the country into war — the aluminum tubes, the yellowcake, all the whackamole lies that Bush put forth — is not impeachable, then how on earth is what Trump did, even under the very worst interpretation, impeachable? Are we really going to convict Trump because he — Bud from Legal insists I insert the word “allegedly” — tried to muscle Zelensky? Here is what Turley, who approached his statement as a lawyer would, did with that accusation. I’m going to quote a great slab of this, because the whole thing ticks me off so much:
Presidents often put pressure on other countries which many of us view as inimical to our values or national security. Presidents George W. Bush and Barack Obama reportedly put pressure on other countries not to investigate the U.S. torture program or seek the arrest of those responsible.103 President Obama and his staff also reportedly pressured the Justice Department not to initiate criminal prosecution stemming from the torture program.104 Moreover, presidents often discuss political issues with their counterparts and make comments that are troubling or inappropriate. However, contemptible is not synonymous with impeachable. Impeachment is not a vehicle to monitor presidential communications for such transgressions. That is why making the case of a quid pro quo is so important – a case made on proof, not presumptions. While critics have insisted that there is no alternative explanation, it is willful blindness to ignore the obvious defense. Trump can argue that he believed the Obama Administration failed to investigate a corrupt contract between Burisma and Hunter Biden. He publicly called for the investigation into the Ukraine matters. Requesting an investigation is not illegal any more than a leader asking for actions from their counterparts during election years.
Trump will also be able to point to three direct conversations on the record. His call with President Zelensky does not state a quid pro quo. In his August conversation with Sen. Ron Johnson (R., WI.), President Trump reportedly denied any quid pro quo. In his September conversation with Ambassador Sondland, he also denied any quid pro quo. The House Intelligence Committee did an excellent job in undermining the strength of the final two calls by showing that President Trump was already aware of the whistleblower controversy emerging on Capitol Hill. However, that does not alter the fact that those direct accounts stand uncontradicted by countervailing statements from the President. In addition, President Zelensky himself has said that he did not discuss any quid pro quo with President Trump. Indeed, Ambassador Taylor testified that it was not until the publication of the Politico article on September 31st that the Ukrainians voiced concerns over possible preconditions. That was just ten days before the release of the aid. That means that the record lacks not only direct conversations with President Trump (other than the three previously mentioned) but even direct communications with the Ukrainians on a possible quid pro quo did not occur until shortly before the aid release. Yet, just yesterday, new reports filtered out on possible knowledge before that date— highlighting the premature move to drafting articles of impeachment without a full and complete record.105
Voters should not be asked to assume that President Trump would have violated federal law and denied the aid without a guarantee on the investigations. The current narrative is that President Trump only did the right thing when “he was caught.” It is possible that he never intended to withhold the aid past the September 30th deadline while also continuing to push the Ukrainians on the corruption investigation. It is possible that Trump believed that the White House meeting was leverage, not the military aid, to push for investigations. It is certainly true that both criminal and impeachment cases can be based on circumstantial evidence, but that is less common when direct evidence is available but unsecured in the investigation. Proceeding to a vote on this incomplete record is a dangerous precedent to set for this country. Removing a sitting President is not supposed to be easy or fast. It is meant to be thorough and complete. This is neither.
Put Turley’s justifiable polemic against a childish West Wing view of international relations aside. Just look at the triviality of the subject matter, whether you think Trump is guilty or not. White House appearances. Military aid. Corruption investigations. How is lying the country into the Iraq war not impeachable, and this mass of anodyne trivialities impeachable? When it’s the same prosecutor declining to indict for Iraq, and deciding to indict for Ukraine? Whatever this is, it’s not “the impartial and consistent application of rules”, and that means the House is failing in its prosecutorial duty to seek justice, and not merely conviction.
NOTE Yes, I’m leaving the national security aspects of Ukraine aside. We can take up the question of whether the interagency process should run foreign policy, or the President, and the Blob’s peculiar view of the national interest another time.
UPDATE I also see I didn’t get to the (quite prescient) Federalist Papers. Another time.