So far, most of the House impeachment investigation into President Trump has taken place behind closed doors — the ordinary process for this sort of investigation, no matter what some House Republicans may claim. The Clinton and Nixon impeachment processes both began with a private investigation to gather facts before taking those facts public, as did the Republican-led House Select Committee on Benghazi’s investigation.
But the Trump impeachment investigation is likely to go public very soon. According to the Washington Post, public hearings could begin as soon as mid-November. The hearings may give Democrats their best chance to make the case to voters that Trump’s actions warrant removing him from office.
On the other hand, there are few spectacles in Washington that are more useless than the typical congressional hearing.
Unprepared members of Congress, often racing from a fundraiser or a meeting with a lobbyist, read staff-prepared questions with little time to follow up. In the House of Representatives, each member may have only five minutes of questioning time before the talking stick is passed to someone else — typically a member of the other party.
It’s almost impossible to keep a narrative going, or to wear down a witness. The topic of questioning can change every time a new lawmaker begins their time at the mic. When a particularly effective questioner gets a chance to speak, hostile witnesses can filibuster until the end of that lawmaker’s time. And every time a member of the opposing party steps up, the questions can rapidly descend into conspiracy theories touted by the least responsible conservative outlets.
Maybe this disjointed feast of grandstanding is good enough for a hearing investigating how a deputy undersecretary managed a federal grant program. But it is no way to bring down a president. Just think of last July’s hearing with special counsel Robert Mueller, a debacle for Democrats, where Democratic lawmakers struggled to extract interesting answers from a surprisingly reluctant witness — while many Republicans touted conspiracy theories about Russian false flags and secret “Western” intelligence operatives.
If Democrats want the Trump impeachment hearings to succeed, they cannot rely on a process that seems designed to ensure that every member of the committee gets five minutes of screen time and to accomplish little else.
The hearings are all the more important because it is so unlikely that the Republican-controlled Senate will ultimately vote to remove Trump from office. As a constitutional matter, the House could hold an impeachment vote whenever it wants, with or without hearings.
But, as a practical matter, the impeachment hearings are Democrats’ opportunity to argue before a jury consisting of the entire American electorate.
Democrats “should remember that this isn’t a criminal trial, and their job isn’t to prove beyond a reasonable doubt that Trump committed some particular crime,” Josh Chafetz, a law professor at Cornell and the author of Congress’s Constitution: Legislative Authority and the Separation of Powers, told me. “Their job is to convince the American public that Trump should be removed from office.”
There is no surefire way to ensure that the Trump impeachment hearings will end with Trump being removed from office, or even that they will convince the public at large that Trump is unfit for the presidency. But there are ways to maximize the chance that the hearings will prove their case.
The hearings should not waste time. They should not get bogged down in procedural fights. And, above all, they should be conducted by professionals who know how to win over a jury as large as the entire American electorate.
Where things stand right now
For the moment, the impeachment process looks fairly disjointed.
House Speaker Nancy Pelosi announced in late September, not long after news of Trump’s call with the Ukrainian president broke, that the House would hold an official impeachment inquiry. That inquiry is spread across six different committees — the House committees on the Judiciary, Intelligence, Oversight and Reform, Foreign Affairs, Financial Services, and Ways and Means. Thus far, the Intelligence Committee has taken the lead on the inquiry into Trump’s Ukraine call.
The advantage of spreading the inquiry out over many committees is that it allows members of Congress who are accustomed to working on particular issues to specialize in the parts of the impeachment inquiry where they are most knowledgeable. It also avoids a turf war among lawmakers who might be upset if they were excluded from the investigation.
The disadvantage is that the hearings can quickly become sprawling and difficult to keep up with. Committees are likely to move at different paces, and to roll out news as they uncover it. Multiple hearings could occur on the same day, and it can be difficult for voters to tell which hearing is the most important.
Much of the investigation, moreover, takes place in private. These closed-door sessions are an ordinary part of the investigative process — it’s a good idea to know what potential witnesses may say before putting them on television — and some of the same witnesses may testify openly in later hearings. But the closed-door meetings also fueled Republican conspiracy theories about what’s going on in the private sessions.
Eventually, however, there are likely to be public impeachment hearings on Ukraine, and potentially on other issues that arise during the impeachment inquiry. When that happens, Democrats can take several steps to maximize the effectiveness of the hearing and to minimize Republicans’ chances of turning them into an easily forgotten spectacle.
Questions should be asked by a professional prosecutor, not by members of Congress
There is an entire profession devoted to the task of convincing lay people that a person accused of a crime is guilty: prosecutors.
If Democrats want the impeachment hearings to succeed, they shouldn’t send amateurs — even amateur members of Congress — to do a professional’s job.
This has been evident to members of Congress investigating past scandals, who have brought in outside prosecutors to do at least some of the questioning. As attorney Seth Rosenthal notes in a 2007 paper arguing that Supreme Court confirmation hearings should be led by expert counsel: “Congress has tasked outside counsel with leading the investigations into and conducting questioning at hearings on the following matters, among others: Watergate; the Iran-Contra scandal; the Keating Five scandal; and Whitewater.”
One of the turning points in the Watergate investigation, for example, came when Nixon aide Alexander Butterfield revealed to Senate Watergate Committee Chief Counsel Samuel Dash — the lawyer the Senate brought on to question witnesses — that the president knew that the Oval Office was bugged. Dash “became known for his measured questioning of White House witnesses, slowly drawing out answers that sometimes struck like bombshells,” according to the New York Times.
“Butterfield’s revelation that Nixon himself knew his office was bugged led directly to the supreme court decision, in United States v Nixon, that the president must hand over the tapes” the Guardian noted in its obituary of Dash. “And, that decision led, in August 1974, to Nixon’s forced resignation.”
It is, of course, impossible to know if Watergate would have ended differently if Dash hadn’t been present. But, by bringing in a former prosecutor to question White House witnesses, Senate investigators helped ensure that his questions would be conducted with a degree of skill and professionalism.
Of course, there are some members of Congress who are, themselves, former prosecutors. But one reason to turn questioning over to a full-time lawyer is simply that this lawyer could devote all their time to building the case against Trump. A member of Congress simply doesn’t have the capacity to do that.
To begin with, members of Congress spend an obscene amount of time raising money. As former Rep. Steve Israel (D-NY) noted in a 2016 op-ed, in less than 16 years in Congress “I’ve spent roughly 4,200 hours in call time, attended more than 1,600 fund-raisers just for my own campaign and raised nearly $20 million in increments of $1,000, $2,500 and $5,000 per election cycle.”
When they aren’t raising money, members of Congress often spend hours of time each day meeting with constituents and lobbyists about issues that range from historically important to parochial. But few of these meetings will involve impeachment. Most members also spend hours — perhaps as much as 10-12 hours in many weeks for lawmakers from western states — in airports and on airplanes flying to and from their district.
The result is that representatives, even those with distinguished careers as prosecutors in their pasts, rarely have enough time to adequately prepare for hearings. To be sure, members of Congress are likely to spend much more time preparing for a historic showdown with a hated president than they put into the typical hearing. But their jobs as lawmakers will unavoidably pull them in many directions.
As Reece Rushing, who served as director of Oversight and Investigations for Democrats on the House Natural Resources Committee, told me, lawmakers are often completely dependent on staff to write their questions — and the ones who tried to come up with their own questions typically made matters worse. Committees have better hearings, according to Rushing, when “members did not deviate from the prepared material.”
Members of Congress are “just sort of a mouthpiece” for their staff at these hearings. They simply “don’t have the time” to know all the details a questioner needs to know to conduct an effective interrogation on their own, Rushing said.
One caveat is that turning question time entirely over to professional counsel would likely require the House to change its rules — though the rules do allow counsel to share question time with members of Congress. Currently, those rules allow a committee to give a staff member the power to question a witness, but this time must be split evenly between the majority and the minority parties, and “may not exceed one hour in the aggregate.”
But even just a half-hour of professional questioning per witness would be preferable to the way House committees typically operate.
The most skilled questioner should receive extra time
Realistically, it is unlikely that lawmakers will fully relinquish their questioning time to a professional prosecutor. Nor does history suggest that they need to fully relinquish this role in order to hold successful hearings. The Senate Watergate hearings split questioning between senators and professional counsel. One of the most memorable moments of those hearings was Sen. Howard Baker’s (R-TN) question to White House Counsel John Dean: “What did the president know, and when did he know it?”
But even though lawmakers will almost certainly spend some time questioning witnesses, there are ways to ensure that the most effective questioners receive additional time.
The House Rules typically limit questioning to five minutes per member at hearings, but the same rules provide that “a committee may adopt a rule or motion permitting a specified number of its members to question a witness for longer than five minutes,” provided that the amount of extended time is divided equally between the majority and the minority and does not exceed one hour per witness.
There are plenty of lawmakers who “have actually practiced law” and these members are more likely to be effective questioners than their colleagues, as Molly Claflin, chief oversight counsel at activist watchdog group American Oversight and a former counsel to the Senate Judiciary Committee, told me.
Rushing noted that it may also be possible for members to yield time to others: “It could be a smart move,” for example, “to have members give back their time” to the chair.
Having one person conduct questioning, Claflin said, would “be more effective because you will still have one train of thought.” This avoids a situation where the ”next person comes on and then we’ve switched topics altogether.”
It also avoids a situation where even Democratic members may subvert the hearings for their own selfish interests. Members in heavily Democratic districts may be tempted to use the hearing to give a long, angry speech about why Trump is terrible — the sort of thing that could earn them positive coverage at home but that will do little to advance the case for impeachment.
Democrats in swing districts, meanwhile, could go to such lengths to avoid looking like partisans that their questions could undermine their party’s broader case — and some of these members might actually prefer to pass their time to someone else so that they don’t become the face of impeachment back home.
Don’t count on the courts
The hearings are also important because Democrats are unlikely to be able to make their case in the courts, or even by uncovering documents the White House wishes to keep secret.
Last May, federal Judge Amit Mehta ruled that Trump’s accounting firm must turn over financial documents sought by House investigators, and a federal appeals court upheld that decision earlier this month. Yet House investigators still do not have the documents. And, it is likely to be months or even potentially more than a year before the House’s subpoena is enforced, and that’s assuming that the Supreme Court doesn’t ultimately side with Trump.
The point is that the wheels of the law turn very slowly, and a court victory that takes months or years to win may be no victory at all.
“The law may be on your side,” Rushing said, “but time isn’t.” If Democrats go hunting for incriminating documents that will turn the nation hard against Trump, they may find them — in 2021.
A closely related risk is that a battle over subpoenas can quickly transform a conversation about a gross betrayal of the public trust into a conversation about eye-glazing topics like executive privilege. “Outside of about a one-mile radius around the Capitol Building, no one really cares about process,” Claflin said.
Every minute the news focuses on whether the White House should turn over documents is a minute the news is not focused on Trump’s attempt to shakedown a foreign leader for personal gain. And that’s a gift to Donald Trump.
It’s important, in other words, to not let a bunch of process fights cover up the fact that Democrats already have damning evidence against the president. Democrats, in Rushing’s words, are “starting out with the smoking gun.”
The impeachment process began after the White House released a readout of a call where Trump suggested that US military assistance for Ukraine would be contingent upon Ukraine doing political favors for Trump. White House chief of staff Mick Mulvaney admitted on national television that this was a quid pro quo — although he later, somewhat incompetently, tried to walk that admission back. And senior administration officials testified in private sessions that Trump made “security assistance money” contingent upon political favors.
Subpoenaed documents and the like may help bolster the case against Trump, but the House investigation began very close to its conclusion.
The Watergate scandal was a drama that took years to unfold — beginning with a June 17, 1972 break-in at the Watergate Hotel and culminating in the August 5, 1974 release of the “smoking gun tape,” where President Nixon is caught on tape conspiring to shut down the investigation into this break-in.
Democrats do not need to spend months or years hunting for a similarly damning piece of evidence because they already have it. They just need to make sure that the American people understand what they have.