November 16, 2019, 6:00

Rep. Zoe Lofgren has been part of every modern impeachment. Here’s what she’s learned.

Rep. Zoe Lofgren has been part of every modern impeachment. Here’s what she’s learned.

Rep. Zoe Lofgren (D-CA) is the only member of Congress who was part of the Nixon impeachment, the Clinton impeachment, and is still serving today. Lofgren is also the second-most-senior Democrat on the crucial Judiciary Committee. In the latest episode of Impeachment, Explained, she walks us through how a House impeachment process actually works, what she learned participating in the past two, what’s different this time, and the role those of us who don’t serve in Congress need to realize we’re playing.

You can subscribe to Impeachment, Explained at Apple, Spotify, Stitcher, or wherever you get your podcasts. A transcript of my conversation with Lofgren, lightly edited for length and clarity, follows.


Ezra Klein

Let’s begin with the big picture. Constitutionally and procedurally, what is the House’s role in impeachment?

Zoe Lofgren

The House of Representatives has the sole authority to impeach. Impeachment is not removal. Impeachment is a finding or an allegation that the object of the impeachment — in this case the president — has committed treason, bribery, or other high crimes and misdemeanors.

Ezra Klein

I’ve found that the easiest way to think about the difference between impeachment and removal is that impeachment is essentially the bringing of charges, right?

Zoe Lofgren

That’s correct.

Ezra Klein

What is the difference between the decision to open an impeachment inquiry and the decision to impeach?

Zoe Lofgren

“Inquiry” is just an investigation. Right now, the [House] Intelligence Committee is taking the lead with some assistance by the Government Oversight and the Foreign Affairs Committee to develop facts. When they’ve done that, they will present those facts to the Judiciary Committee.

Ezra Klein

In terms of this fact-finding process, is there a difference between that happening under the impeachment power and what would happen in the normal course of typical congressional oversight and investigation?

Zoe Lofgren

You could do this legally and constitutionally without ever mentioning the word “impeachment” at the investigation stage. In fact, there have been some investigations ongoing in the Judiciary Committee that have now been subsumed by the Intelligence Committee concerning Ukraine.

The real issue is whether the House of Representatives will decide by a majority vote to adopt what are called “articles of impeachment” over allegations that the president has committed misconduct that meets the standard in the Constitution. Historically, that’s gone through the Judiciary Committee, but every impeachment is different.

I was on the [Judiciary] Committee during the Clinton impeachment and I was on the staff of Congressman Don Edwards, who was on the Judiciary Committee, during the Nixon impeachment. I was only a law student, so I wasn’t in charge of anything — although I did write one of the articles. But I had a bird’s-eye view for some of that as well.

Ezra Klein

I love that offhand, ‘I actually did write one of the articles of impeachment for Richard Nixon, but you know, no big deal.’ This was the article about the Cambodian bombing?

Zoe Lofgren

Correct. I only wrote it because no one else wanted to, and John Conyers insisted that he wanted to offer it, so I wrote it.

Ezra Klein

The Senate only holds a trial concerning the specific articles of impeachment that the House decides on. So how do those articles get written? How does the House decide which articles move to the floor vote and then ultimately move to the Senate?

Zoe Lofgren

Historically, that’s been through the Judiciary Committee. Articles are proposed and voted on by the members in an open session. Those that get a majority of votes are forwarded to the Senate.

It’s too early to say what those articles will be. In the case of Nixon, the articles were written just the week before the actual vote. You can’t do it before all the fact-finding has been completed.

Ezra Klein

And the House can vote to clear some of the articles but not others, right? Let’s say the Judiciary Committee puts forward 10 articles of impeachment against Donald Trump, could the House decide only to send three of them to the Senate?

Zoe Lofgren

Yes, each article traditionally is voted on separately. I remember during Clinton’s impeachment, some members voted for some [articles] and not for others. Of course, the Nixon impeachment never made it to the floor because he resigned after the Judiciary Committee acted.

Ezra Klein

This is the first modern impeachment that will happen in a president’s first term. For both Nixon and Clinton, impeachment occurred in the second term, so the president had already faced voters for reelection. In these cases, impeachment was going to be the last opportunity for accountability.

In this case, the impeachment process will take place in the year of an election. So there’s a question of what kinds of offenses or abuses should be handled through impeachment and what should be left for voters. What is your line between an offense that is properly left to voters in an election and an offense that is properly part of the congressional impeachment process?

Zoe Lofgren

There are policy issues that should be left for the election. That’s where the voters decide. “High Crimes and Misdemeanors” are activities so extreme that they threaten the constitutional order itself. That’s why the extraordinary remedy of impeachment and potential removal is in place — for when the whole system of government is threatened by certain behavior.

Ezra Klein

One concern I’ve heard from people on the left — and I know that Speaker Pelosi has been discussing directly — is the idea that if something is not included in the articles of impeachment then it is as if Congress is clearing it as normal behavior. How do you think about that?

Zoe Lofgren

I don’t think that’s the case. For example, a lot of things Nixon had done were clearly improper but not everything was put into an article. You have to home in on the things that are the most urgent and coherent. Also, this is a very focused inquiry. It’s focusing on the president’s conduct relative to whether he subsumed America’s policy goals for his personal interest and whether that posed a threat to the national security of the United States. [It’s about] whether he failed in his oath of office and whether he is a threat to the constitutional order.

Ezra Klein

One of the arguments we’ve been hearing from Republicans is that the process so far has been secret, closed-door, and partisan. What’s your view on that?

Zoe Lofgren

I’m not on the Intelligence Committee myself, but I will note that we’re following the same rules adopted by the Republicans in the last Congress. In the Judiciary Committee in the last Congress, we had plenty of closed-door depositions. And the way you do it is both the Democrats and Republicans are in the room. For the first hour one party’s lawyers and members get to ask questions. At the end of that hour it switches to the other party and the members and the lawyers ask questions and it goes back and forth. That’s the process being used in this case; it’s not anything new.

In the case of Nixon, there were plenty of private depositions held in the Judiciary Committee. Members of both parties were there. Again, this is nothing new.

Ezra Klein

If I understand correctly, there are a couple of committees that are involved currently in the deposition process. The Judiciary Committee is not yet one. So, Republicans on those committees are allowed into those hearings and can ask questions, but you are not allowed into the hearings.

Zoe Lofgren

That’s correct. I’m not on the committees that are doing the fact-finding.

Ezra Klein

So when the Republicans stormed the hearings saying that they were closed, it was just as closed to you as it was to them.

Zoe Lofgren

There’s about a hundred members that are on the three committees — about a quarter of the Congress. So they’re just grasping at straws. The new procedures provide how we’re going to move into the public phase of this — how the facts are going to be transmitted to the Judiciary Committee. That’s an important next phase.

Ezra Klein

Another argument you’ve heard from the president and from his allies is that what the president is getting is not due process. That he’s being treated in some way worse than a common thief. He doesn’t get to see as accusers. He doesn’t know who the whistleblower is. What’s your view on that?

Zoe Lofgren

It’s not correct. What we’re proposing provides more rights to President Trump than had been provided to President Clinton during the impeachment effort against him. So, the president’s lawyer is going to be present. Certainly the Republicans are participating. I thought it was unfortunate that they tried to make the public believe somehow that the Republicans were not included in these depositions. They get as much time as the Democrats.

Ezra Klein

There’s been a somewhat confusing debate about whether or not a vote was needed to begin the impeachment process. This week, Democrats took that vote. What’s the importance of the resolution, in your opinion?

Zoe Lofgren

The vote really isn’t a start of the impeachment inquiry; it references a continuation of the impeachment inquiry. There’s no requirement in the Constitution for a vote to start it. Just last week, a federal district court said there’s no vote needed; Congress decides for itself how to proceed.

The establishment of how we’re going to proceed is a useful thing. How are the hearings going to be held? How is the president’s lawyer going to be able to participate? All of those things are worth making known.

Ezra Klein

This will be the third impeachment process you’ve served in. What feels different to you this time?

Zoe Lofgren

Thinking back to the Nixon impeachment, there were certainly very serious divisions. The Republicans didn’t think Nixon should be impeached; most of the Democrats had become convinced that he should be. But as the proceedings went forward and a lot of time was spent not just in depositions but listening to the tapes, it really did change people’s minds.

The difference is that Republicans weren’t in favor of impeachment, but there was a level of dignity that was present. We’ve had some very outrageous behavior from some members that you never saw in the ’70s. It’s sort of a clown show type of thing, and that’s very destructive. This is serious. We don’t know for sure if the president will be impeached. We don’t yet know for sure if there will be articles of impeachment because we’re not there yet. We’re in the fact-finding stage. But we should take this seriously because it’s about our oath of office to defend the Constitution. That’s about preserving the democracy that our country has enjoyed for over 200 years. And we should approach this with gravity, with a sense of responsibility, with dignity and honestly with a sense of sorrow. This is not a cause for joy. It shouldn’t be for anyone.

Ezra Klein

I’ve been thinking recently about what would have happened if the Nixon impeachment had played out in this Congress, in this media era, in this context. I’m curious if you have any reflections or suspicions about that.

Zoe Lofgren

Nixon had his defenders, but they approached this with the tremendous dignity and they were willing to look at the facts. They didn’t create their own world. Some of what I hear in the media and repeated by elected officials is like an alternate reality. In the Nixon case, you saw people who were devoted to President Nixon, who believed in his policies, and who didn’t believe that he had been guilty of the things that he was accused of. Yet when the facts came out, they were able to accept reality and realize that they had been lied to. I’ll never forget the look on Chuck Wiggins’s face — one of the most vigorous defenders of President Nixon — when he realized that Nixon had lied to him. There’s something of a different environment today.

Ezra Klein

When you look around at your colleagues, do you think there is still the capacity for movement? Are there revelations that would make people who are in one place now move to another place five months from now?

Zoe Lofgren

I think it is possible. Despite popular belief, we do talk to each other across the aisle. I’ve certainly heard Republican members say, “If it were X and Y, then we’d have to do something.” So it’s really a question of what do the facts show and do people accept the facts? Obviously, the leadership is trying as much as they can to protect a president of their party. I understand that. But the real question is, can we look at fact-finding, have a level of confidence as to what the facts are, and then proceed based on those facts?

Ezra Klein

Is there anything you wish people knew about the process or you think they misunderstand that we didn’t cover?

Zoe Lofgren

I think that citizens’ voices should be heard. As you watch the evidence and have an opinion, you should express it to your elected representative in an orderly and cordial way. This is a tough time for the country. This is a hard thing for all of us. It’s a stress test for our democracy and there are very high stakes. So I think each one of us, whether we’re participating in these events as members of Congress or as citizens and voters, ought to be aware of the gravity and the solemnity with which this question should be approached and take our responsibilities seriously in a very orderly and dignified way.

Sourse: vox.com

Related posts

Leave a Reply

Your email address will not be published. Required fields are marked *