Editor’s Note: Ross Garber teaches about political investigations and impeachment law at Tulane Law School and has served as lead counsel for four US governors in impeachment proceedings. The opinions expressed in this commentary are his own. View more opinion at CNN.
As an impeachment defense lawyer, I often warn about the perils of initiating impeachment proceedings. I emphasize that they should be undertaken only where there is credible information of egregious misconduct that would affect an official’s ability to continue in office, and in full recognition of the incredibly high standard for impeachment, the rigorous process involved, the inevitable disruption in governing and the potential political costs.
But House Speaker Nancy Pelosi has set a bar for an impeachment process that even I haven’t dared advocate. And while she may believe an impeachment process would hurt Democrats in 2020, she has sought to justify her aversion to impeachment with statements that are unsupportable and erroneous. This undermines the public’s trust and could have consequences for future impeachment efforts.
This week on “The Tonight Show Starring Jimmy Fallon,” Speaker Pelosi seemed to suggest that a potential post-presidency criminal case against the President could be undermined were the House to impeach and the Senate fail to convict.
“There is a school of thought that says,” Pelosi observed, “‘If the Senate acquits you, why bring charges against him in the private sector when he’s no longer president?’ So when we go through with our case, it’s got to be ironclad. Ironclad.”
But impeachment has nothing to do with the criminal process. As the Constitution makes clear, and the Supreme Court emphasized in Nixon v. United States, impeachment and removal is within the sole purview of the Congress. The criminal justice process is implemented by the executive and judicial branches. Impeachment and criminal prosecution have no impact on each other. The Office of Legal Counsel at the Justice Department has explicitly said as much. The speaker is simply wrong.
The speaker also suggested in 2017 that the House can impeach only if a president violates the law. Particularly given the proliferation of federal criminal laws, it is likely that conduct serious enough to warrant impeachment is also a federal crime, but this is not necessarily so.
The Constitutional standard for impeachment, “treason, bribery and other high crimes and misdemeanors,” has its origins in Great Britain and was intended to implicate grievous offenses against the state, but not necessarily only those that are crimes. This principle is obvious when one considers that for quite a while after the Constitution was adopted there were very few federal crimes.
The speaker has also suggested that she believes an impeachment process should not be undertaken unless it is “almost impossible for the Senate to exonerate.”
Although House members should consider whether evidence is serious and strong enough to warrant conviction by the Senate before casting a vote for impeachment, the speaker has set a novel and unrealistically high burden for simply initiating an impeachment process. It would also be unfair and improper to begin an impeachment process only if conviction has been conclusively predetermined.
The whole point of an impeachment process is to conduct a fair evaluation of the facts and constitutional standard. Initiating an impeachment process also provides a forum for the public to learn about the relevant facts and the constitutional burdens.
Impeachment hearings might also develop new evidence. The speaker’s notion of requiring certainty of conviction before even considering charges is wrongheaded and improper.
Finally, there’s the “he’s just not worth it” standard: Speaker Pelosi said, “Impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path, because it divides the country. And he’s just not worth it.”
While Speaker Pelosi is right that impeachment is divisive, the process of considering whether a president engaged in conduct that constitutes treason, bribery or other high crime or misdemeanor is a core constitutional power and responsibility of the House.
Partisanship is to be expected, especially at the outset; it is the default posture in Washington. But let’s take a look at some history. The impeachment process involving President Nixon began as a largely partisan effort, but eventually members of the President’s own party came around, resulting in his resignation. Here too, Speaker Pelosi is wrong to suggest that uniform opinion be required about the result before even initiating an evaluation of the facts through the impeachment process.
The purpose of this piece is not to advocate for impeachment. It is to urge that the topic be approached responsibly. And it’s not just about Donald Trump. Someday a different House leadership will confront potential misconduct by a different president and will look for guidance to the words and actions of this speaker and this House of Representatives.