Ever since House Speaker Nancy Pelosi announced the beginning of an impeachment inquiry in September, congressional Republicans have complained that the process is opaque, unfair, and illegitimate. About 30 Republican House members even forced themselves into a deposition in a secure room being used for a hearing, possibly endangering national security, to prove a point about transparency and the rights of the accused. (Never mind that the rules by which the impeachment inquiry is proceeding were approved by the Republican-controlled House in 2015.)
This week, congressional Republicans may get their wish. The House is expected to vote as soon as Thursday on a measure that would give the imprimatur of the chamber to the impeachment proceedings already underway. In addition to codifying procedures for future hearings and subpoenas from the investigating committees, the resolution would allow transcripts from the private depositions to be released publicly and centralize all evidence in the Judiciary Committee (which usually has jurisdiction over impeachments). In a statement, Pelosi said that resolution would also lay out “due process rights” for the president, a reference to language in the resolution that instructs the Rules Committee to come up with procedures that “allow for the participation of the President and his Counsel.”
In other words, Democrats are giving Republicans everything they’ve wanted for weeks—which is the last thing Republicans should have hoped for.
House Republican leader Kevin McCarthy criticized Pelosi in early October, saying she’d given “no clear indication as to how [the] impeachment inquiry will proceed—including whether key historical precedents or basic standards of due process will be observed,” and asserting that the committee chairs’ handling of the inquiry was “calling into question the integrity of such an inquiry.”
Now House Democrats are acceding to McCarthy’s requests. If the resolution passes, which it’s expected to do, future impeachment hearings will be more public, with clarified roles for Republican participation in the process (including some subpoena power) and protections for the president. McCarthy and other House Republicans will have to find a new line of defense.
The reason House Republicans lambasted their own rules in the first place was that arguing about process was politically more expedient than arguing about substance. The Trump administration used the same tactic when discrediting the Mueller investigation: It’s a witch hunt; it was started under false pretenses; it’s part of a deep-state conspiracy; it’s a bunch of angry Democrats. Never mind the possible obstruction of justice by the president of the United States, they implored—the important thing is that no one ever should have found out about it in the first place!
(After Mueller declined to accuse the president of any crime directly, Trump and his defenders added a substantive argument—“No collusion, total exoneration”—to the procedural argument.)
New scandal, same tactic. The Democrats announce an amorphous impeachment inquiry, and the Republicans attack it on process grounds. The whole point is to distract from the substance of the issue by, ironically, appealing to an innate sense of fairness and propriety.
Attacking the process instead of the substance is also easier for Republicans politically. For one thing, the Democratic leadership decided to allow Rep. Adam Schiff to spearhead one prong of the inquiry. He repaid their trust by hyperbolically reenacting the most inculpatory piece of evidence the Democrats have, the memo from the July 25 Trump-Zelensky phone call. Because really good investigators always publicly undermine their own evidence.
Schiff’s antics distracted for several days from the impeachment proceedings—nearly all House Republicans cosponsored a resolution condemning him—and helped Republicans avoid talking about the quid-pro-quo inherent in President Trump’s shadow Ukraine policy. But it is worth remembering that, according to recent opinion polling, a plurality of Republicans—yes, Republicans—believes that inviting foreign interference in American elections is an impeachable offense.
It’s possible that congressional Republicans could convince their voters that, actually, this is the way the world works and quid-pro-quos aren’t really that bad and also Gorsuch! and socialism! That’s the line Rep. Mo Brooks has adopted. In a less-than-subtle bit of legerdemain, though, Brooks advocated for quid-pro-quo between governments—not between a government on one side and a political campaign on the other.
At least Brooks is trying to use his office to lead his constituents in one direction or another. That’s more than can be said of Rep. Jim Jordan (R-Shirtsleeves), who has preemptively announced that the vote to open the impeachment isn’t enough: “Even if they try to change something to give a little bit of due process, we’re all still going to vote against this because this is such a sham and it’s been such a sham from the beginning.” (Never mind that, as Kim Wehle has explained here at The Bulwark, the term “due process” is not really relevant to impeachment proceedings.)
Jordan is reinforcing a position that’s already been overrun. It’s going to be hard for Jordan and his fellow Republicans to make an argument about transparency and rights of the minority from the dais of a hearing room with C-SPAN cameras rolling.