How the Democrats’ impeachment rules neutralize some key Republican complaints

From the moment House Democrats launched their impeachment inquiry, President Donald Trump and Republicans have criticized the process as a partisan “witch hunt.”

Republicans have highlighted the secluded nature of the investigation, with key depositions unfolding in private. They’ve complained about the rules preventing most lawmakers from participating in the hearings. Broadly speaking, Republicans have said the process was unfair.

But it appears many of their complaints will be neutralized after the Democratic-controlled House passes a resolution setting the parameters for the next stage of the inquiry. Democrats unveiled their proposed resolution on Tuesday and plan to hold a floor vote on Thursday.

Here’s a breakdown of the major GOP complaints that the resolution addresses:

Lack of formal vote

Republican pushback: Republican leaders, including House Minority Leader Kevin McCarthy, have been arguing that conducting the inquiry without an official vote from the House to conduct an impeachment inquiry would render the process “devoid of any merit or legitimacy.”

Democratic resolution: “Resolved, That the Permanent Select Committee on Intelligence and the Committees on Financial Services, Foreign Affairs, the Judiciary, Oversight and Reform, and Ways and Means, are directed to continue their ongoing investigations as part of the existing House of Representatives inquiry into whether sufficient grounds exist for the House of Representatives to exercise its Constitutional Power to impeach Donald John Trump, President of the United States of America.”

Analysis: Pelosi has accurately pointed out many times that the Constitution does not require a vote for House committees to begin an impeachment inquiry. And a federal judge ruled last week that the House inquiry is legitimate, even without a formal vote authorizing it.

The first thing the resolution calls for is the continuation of ongoing investigations “as part of the existing” inquiry. So, it technically doesn’t authorize the opening of the inquiry. But that doesn’t really matter — although it could add legitimacy to the probe and help Democrats politically.

Limited transparency

Republican pushback: Several Republican lawmakers have protested the secretive nature of the initial hearings, which so far have taken place behind closed doors with attendance limited to members of the three House committees directly involved in the investigation.

Democratic resolution: “The chair of the Permanent Select Committee shall designate an open hearing or hearings pursuant to this section.”

Analysis: The second section of the proposed resolution addresses the issue of transparency by mandating that House Intelligence Committee Chairman Adam Schiff hold public hearings. This move was expected — Democrats previously suggested open hearings for key witnesses.

Selective leaks

Republican pushback: Trump has complained that the House Intelligence Committee has been “selectively” leaking pieces of certain witnesses’ testimony to support their position.

Democratic resolution: “The chair is authorized to make publicly available in electronic form the transcripts of depositions conducted by the Permanent Select Committee in furtherance of the investigation described in the first section of this resolution, with appropriate redactions for classified and other sensitive information.”

Analysis: The resolution doesn’t actually mention leaks — but it authorizes the public release of full transcripts of depositions. Complaints of cherry-picking should go away once the full transcripts of key witnesses are released to the public for all to see.

Republican witnesses

Republican pushback: Republican members, such as Rep. Jim Jordan, have slammed the process over what they see as partisan procedures. Because they are in the minority, Republicans haven’t had subpoena power or the ability to call in witnesses for testimony.

Democratic resolution: “To allow for full evaluation of minority witness requests, the ranking minority member may submit to the chair, in writing, any requests for witness testimony relevant to the investigation described in the first section of this resolution within 72 hours after notice is given for the first hearing designated pursuant to paragraph (1). Any such request shall be accompanied by a detailed written justification of the relevance of the testimony of each requested witness to the investigation described in the first section of this resolution.”

“(4)(A) The ranking minority member of the Permanent Select Committee is authorized, with the concurrence of the chair, to require, as deemed necessary to the investigation— (i) by subpoena or otherwise (I) the attendance and testimony of any person (including at a taking of a deposition); and (II) the production of books, records, correspondence, memoranda, papers, and documents; and (ii) by interrogatory, the furnishing of information.”

Analysis: The Democratic resolution symbolically gives Republicans subpoena power, but only if the Democrats on the committees agree to issue the subpoenas. The likelihood of agreement on this front is very slim. While Democrats threw the GOP a bone, the complaints are likely to continue, because they won’t be able to compel testimony from their desired witnesses.

Barring lawyers

Republican pushback: In a scathing letter to House Democratic leaders, White House counsel Pat Cipollone claimed the impeachment inquiry was unfair to the President by denying him “the right to confront the witnesses” and “to have the assistance of counsel.”

Democratic resolution: “The House authorizes the Committee on the Judiciary to conduct proceedings relating to the impeachment inquiry referenced in the first section of this resolution pursuant to the procedures submitted for printing in the Congressional Record by the chair of the Committee on Rules, including such procedures as to allow for the participation of the President and his counsel.”

Analysis: The proposed resolution could pave the way to resolving Cipollone’s concerns, by opening the door to “the participation of the President and his counsel.” But it doesn’t set anything in stone — that is up to the House Judiciary Committee, which drafts articles of impeachment.

Cross-examinations

Republican pushback: A few House Republicans have criticized the Democrats for not allowing them to fully participate in the hearings, with McCarthy accusing them of preventing Republicans from cross-examining witnesses. They say this creates a one-sided inquiry.

Democratic resolution: “… the chair and ranking minority member of the Permanent Select Committee shall be permitted to question witnesses for equal specified periods of longer than five minutes, as determined by the chair. The time available for each period of questioning under this paragraph shall be equal for the chair and the ranking minority member. The chair may confer recognition for multiple periods of such questioning, but each period of questioning shall not exceed 90 minutes in the aggregate. Only the chair and ranking minority member, or a Permanent Select Committee employee if yielded to by the chair or ranking minority member, may question witnesses during such periods of questioning.”

Analysis: The proposed resolution outlines a clear plan for Republicans to question witnesses, and that the Republican ranking member will have the same amount of time as the Democratic chair. But the committees are stacked with more Democrats than Republicans — because the Democrats control the House — so the Republicans overall would likely end up with less time.