Trump this week escalated his fight against the Democratic-led investigation of his dealings with Ukraine with a letter from the White House counsel that contends the administration cannot cooperate with an inquiry that is “invalid” in part because the full House hasn’t voted to investigate.
Many constitutional law experts disputed the White House legal analysis, and it’s not clear that Trump would be any more cooperative if the House did vote.
A decision whether to call the president’s bluff is likely to be a main topic when Pelosi convenes a conference call with House Democrats at the end of the week. Representative Dan Kildee of Michigan, one of the leadership’s vote counters, said Democrats could easily pass a resolution authorizing the impeachment inquiry with as many as 230 votes.
But Gerald Connolly of Virginia, a senior Democrat and a member of a committee leading the inquiry, said there are plenty of reasons not to hold that vote.
“Caving to their phony demands could -- in an odd way -- have unintended consequences of actually empowering their various arguments,” he said of the White House and Republicans. Connolly also pointed to shifting public opinion, as evidenced in polls, in favor of the inquiry even without a House vote.
In the two weeks since Pelosi said the House was beginning an impeachment investigation into whether Trump pressured Ukrainian officials to investigate former Vice President Joe Biden, a potential 2020 challenger, both sides have been girding for a potentially protracted fight over documents and witnesses.
With the White House vowing to block any cooperation, Pelosi is scheduled to hold the conference call on Friday to chart the next steps. The committees conducting the investigation have already issued a salvo of subpoenas for testimony or records directed at administration officials such as Secretary of State Michael Pompeo as well as Trump’s personal lawyer Rudy Giuliani.
“We continue investigating and digging to uncover more of the truth. Nothing has changed,” Pelosi spokeswoman Ashley Etienne said Wednesday. For now, she added, Democrats haven’t settled on legal or tactical responses to the White House letter other than to keep moving forward with the probe.
Pelosi hasn’t ruled out holding a House vote, though she’s derided it as a “Republican talking point” and unnecessary.
“If we want to do it, we’ll do it. If we don’t, we don’t. But we’re certainly not going to do it because of the president,” Pelosi said in an interview last week with the Atlanta Journal-Constitution.
Republicans, led by Minority Leader Kevin McCarthy of California, have been using ads, press releases and other efforts to hammer Democratic House members from GOP-leaning districts over impeachment.
Vice President Mike Pence is campaigning over the coming weeks in the districts of four Democratic freshmen who defeated Republican incumbents in 2018.
Making a Link
Although most of those lawmakers have said publicly that they support the inquiry, a floor vote would more directly link them to an effort that’s long been a rallying cry of the outspoken progressive wing of the Democratic Party, a frequent target of the president and his allies.
Trump and Republicans also have complained about the fairness of the process, citing closed-door hearings, and what they say are limitations on committee Republicans to subpoena their own rebuttal witnesses, or for the White House to have legal counsel in the room during depositions.
“If Democrats were interested in fairness, they would follow the same process as previous impeachment proceedings. Instead, they just make up the rules as they go along,” said Representative Jim Jordan of Ohio, Case Western law professor Jonathan Adler said the administration’s assertion that the House must vote to conduct the inquiry is without legal merit. It is instead a political argument to voters that they shouldn’t consider the investigation legitimate.
“As a political matter, if the House leadership wants to take some of these issues away from the White House, they could take a vote on the floor. They may decide politically to do that even in the absence of a legal requirement to do so,” he said.
Michael W. McConnell, director of the Constitutional Law Center at Stanford Law School, said the lack of a vote on the impeachment investigation gives Trump a plausible justification for not cooperating. He would have no excuse to ignore the inquiry if there were a vote, he said.“He can of course defend himself and his office, but it is not up to the president to decide whether a properly authorized impeachment inquiry is warranted,” McConnell said. “That’s why it is strange that Speaker Pelosi is proceeding in this fashion. Procedural regularity matters.”
Precedents regarding impeachment investigations and proceedings don’t provide a clear road map.
Tom Campbell, a law professor at Chapman University and a former Republican congressman from California, said that in 1973 the House Democratic leadership wanted to put the GOP minority in a tight spot by putting some on record against even starting impeachment proceedings against President Richard Nixon, a fellow Republican. Then-Minority Leader John Rhodes foiled that plan by telling Republican House members they had a “free vote” to vote yes, and almost all did, Campbell said.
In 1998, Campbell said, Speaker Newt Gingrich wanted to give cover to Republican members potentially facing primary pressure for not moving aggressively to impeach President Bill Clinton. They could point to their vote to commence proceedings generally to ward off such attacks, he said.
Campbell said Pelosi also may be making political calculations about holding a vote.
“She does not want to make her moderates vulnerable next November, until she has specific articles of impeachment ready,” Campbell said. “This allows those members to say they are simply studying the evidence and have not reached any hasty conclusions.”
“Preliminary votes to start impeachment proceedings have, thus, always been political acts--not constitutionally compelled acts,” he added.