Don’t Believe the Hype, Unless Someone Substantiates the Hype

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As President Trump has — unsurprisingly — dramatically ramped up his refusal to comply with any congressional scrutiny and oversight, the impeachment debate has moved in a new direction. Or at least one part of the existing argument has become much more salient. That is this: the claim that by moving into a formal impeachment process, perhaps as little as beginning a formal impeachment inquiry, the House will strengthen its ability to compel cooperation from the executive branch on all the documents and testimony it is now trying to get. In other words, whatever you think about the politics or wisdom of impeachment, Democrats need to start the process because that’s the only way they’ll have the standing to do effective investigation.

The problem is I see no evidence this is true.

I’m not dismissing this out of hand. It’s actually a claim or a question I’ve been trying to get my head around for some time. It does make sense that Congress’s claim to need information and testimony should be all the greater in the context of fulfilling what all agree is a critical, black letter constitutional mandate: the decision over whether to impeach a President. There’s just little evidence it’s true.

The possible exception is in the case of getting access to grand jury testimony. But at present that’s a narrow seam of evidence. For the moment it’s only tied to the Mueller Report. And the key redactions in the Report focus much more on purported damage to on-going cases, not grand jury testimony.

Beyond this grand jury testimony, does it strengthen Congress’s hands? Maybe? If you look at reporting on this you see various experts saying it should or it might. It’s mainly a hope.

Most of the claims Trump has made seem frivolous on their face. If courts are operating even broadly within existing precedent or the logic of the constitution Trump will lose. The issue is delays working through the courts. Possibly greater standing in an impeachment context won’t make the system operate faster. It’s also quite possible that judges — and even more Supreme Court Justices — won’t operate within precedent or the logic of the constitution. But that’s just another reason why operating on the basis of people’s wishful thinking about how judges should act is a fool’s errand.

I want to be clear on this point. I don’t consider this a closed issue. I’m neither a constitutional scholar nor do I have the finest grained understanding of the trends within the federal judiciary. I’m still trying to talk to more experts to get a clearer view of this. If you have specific expertise in constitutional law or the appellate bar or other specific expertise, I’d really like to hear from you on this. For the moment, my point is simply this: Many people are treating it as a given that beginning an impeachment inquiry will significantly or even dramatically increase the House’s ability to compel the White House’s cooperation. I see little or no evidence to believe that is true.

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