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Pelosi's Impeachment Plan Isn't Set in Stone Yet

Jonathan Bernstein

(Bloomberg Opinion) -- House Speaker Nancy Pelosi and the Democrats have made their decision on impeaching Donald Trump: They’re going fast, and they’re going small.

There will be only two articles of impeachment, both centered on the Ukraine affair: one on abuse of power for soliciting foreign interference in the 2020 election, and the other for blocking Congress’s investigation. The Judiciary Committee’s consideration of the plan is now set for this week, and the panel is on course to finish up with final House votes before the Christmas recess. 

At least that’s what Pelosi and Democratic committee chairs are planning. There’s still that Judiciary Committee meeting itself to navigate. Back in 1974, during the impeachment of President Richard Nixon, committee members actually offered three additional articles during the committee’s markup (that is, the working meeting for considering and approving bills and resolutions). One was agreed to along with the two in the original resolution, meaning three articles of impeachment were approved for consideration in the full House. 

In 1998, in the impeachment of President Bill Clinton, no new articles were offered, and two amendments were adopted. 

Judiciary Committee Republicans were certain to oppose whatever Democrats put on the table. As for committee Democrats, changes in the House since 1974 make it less likely that they will try to challenge the plan of the House party leadership. 

The House is far more party-dominated and top down than it was 45 years ago. If committee members decided to offer additional articles, they would probably be defeated, and the leadership would probably not look kindly on the effort. 

There are strong arguments, as Rick Hasen notes, for a narrowly focused impeachment. The currently drafted articles do refer, if obliquely, to Trump’s other actions: in publicly welcoming election interference from Russia in 2016 and China in 2020, for example, and in obstructing justice in fighting the Russia investigation.

Pelosi has surely done a head count. She realizes that broader articles would have difficulty passing, and she may believe that offering them would put the entire project at risk. She knows her caucus.

Nevertheless, impeachment without in any way including the many ways in which Trump has violated his oath of office doesn’t really sit right, either. There are three major topics (at least!) that are not addressed: not only obstruction of justice in the Russia probe, but also Trump’s violations of the emoluments clauses of the Constitution, and various other abuses of power.

Ignoring them while moving ahead with the other two articles could be interpreted as congressional approval of Trump’s lawlessness outside of the facts in the Ukraine case. On the other hand, impeachment articles that are defeated can set precedents, too, as was the case with one of those 1974 committee amendments, which would have charged Nixon for his military policy in Cambodia. 

How to square that circle?

The best solution would be for one or more Democrats on the Judiciary Committee (Eric Swalwell? Jaime Raskin? Pramila Jayapal?) to introduce two or three additional articles, force debate over them, and then withdraw them without a vote.  This could be done on the grounds that (as Hasen points out) the House hasn’t yet done sufficient investigations, and the articles would therefore be premature at this point.

Such a maneuver would make it clear that the House, or at least House Democrats, take the president’s misbehavior seriously and show that there’s support for continuing tough oversight, no matter what happens to impeachment over in the Senate. 

Yes, drawing it out would complicate things and wouldn’t make the party leadership happy.(2) Pelosi appears to want a quick march through the committee, with a debate focused on one easy-to-understand story line. 

But besides the risks to anyone who would try this, there’s also an upside. If handled adroitly, it could make the authors of the new articles into national liberal heroes. 

In the 1970s, members of the House were willing to step up and take action themselves. Maybe some of that spirit of individual initiative is still alive today. The coming days provide a very modest but appropriate way to show it.

(1) Although presumably the semi-rebels would give plenty of notice, so the leadership could be ready for scheduling and retain some control over exactly what would be offered. One advantage to leadership: If some committee Democrats insist on talking about things beyond the Ukraine scandal, this would give them their opportunity, so they could remain on-message during the rest of the markup.

To contact the author of this story: Jonathan Bernstein at jbernstein62@bloomberg.net

To contact the editor responsible for this story: Katy Roberts at kroberts29@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.

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