With House Democrats barreling toward impeaching President Trump, Speaker Nancy Pelosi is continuing to stave off a full House vote authorizing a formal inquiry – a step Republicans argue not only insulates vulnerable Democrats running in red districts but shuts down the GOP’s ability to wage a legal offensive of its own.
House Democrats who support Trump’s impeachment have more than enough votes to follow through, with 223 now backing his ouster compared to just 12 holdouts, several tallies show.
So far, however, Pelosi has declined to hold a vote on moving forward with the inquiry, and her aides make a point of saying it’s not required.
“There is no requirement under the Constitution, House Rules or House precedent that the House has to take a vote before proceeding with an impeachment inquiry,” Pelosi spokeswoman Ashley Etienne told RealClearPolitics in a statement. “The Committees of the House now have robust authority under the House’s existing rules to conduct investigations for all matters within their jurisdiction, including impeachment investigations.”
“For several decades, impeachment investigations have frequently been conducted without a full vote,” Etienne added.
But Republicans are quick to point out that in the only presidential impeachment investigations to have taken place over the last four decades – those against Presidents Bill Clinton and Richard Nixon — the House voted on the inquiry, thus authorizing the Judiciary Committee to investigate.
This time, that committee is not driving the train. Instead, when the House is in recess the next two weeks, members of two panels -- House Intelligence, Oversight and Government Reform, and Foreign Affairs -- plan to hold hearings and interviews on impeachment.
Holding a formal vote on impeachment, conservative legal experts say, would allow Republicans to subpoena documents and witnesses and investigate all the revelations surrounding the whistleblower’s complaint about Trump’s interactions with Ukraine, as well the roles of Joe Biden and his son Hunter in Ukrainian corruption allegations.
“Republicans would have the opportunity to get information from all sources and get it on the table,” Cleta Mitchell, a conservative political law attorney, told RealClearPolitics. “The process they are proceeding under through their committee attorney means they are the only ones who have the rights to gather information.”
Rep. Doug Collins, who serves as the top Republican on the Judiciary Committee, argued Monday that if Pelosi were proceeding in a serious and “somber” manner, as she has claimed, she would bring the impeachment inquiry up for a floor vote.
“Formal impeachment would actually afford due process and ensure both sides are heard,” Collins tweeted Monday.
The Georgia lawmaker, one of Trump’s strongest allies in Congress, accused Pelosi of abusing her power by failing to hold that formal.
“It’s not America when you can simply ramrod a hearing without allowing the person who is being accused or the minority to have more rights. … This is just not fair and the American people will see through this,” he predicted during an interview on Fox News.
But other legal experts argue House Democrats’ failure to hold a vote cuts both ways.
Andrew Napolitano, who served as a New Jersey Superior Court judge from 1987 to 1995, says Trump and administration officials would lose a lot of defenses, including claims of executive privilege, if the House holds a formal vote.
“If they have a vote to go forward with the inquiry, it strengthens their tools to extract information from the executive branch,” Napolitano said Monday on Fox News.
Holding a vote on the impeachment inquiry also could take any legal ambiguity out of House Democrats’ efforts to obtain grand-jury redactions in Special Counsel Robert Mueller’s report, which they have argued could help their Ukraine investigation.
Democrats believe Trump may have lied to Mueller about his contacts with WikiLeaks and are pointing to a redacted passage of the Mueller report in which former Trump campaign Chairman Paul Manafort testified that he “recalled” Trump asking to be kept “updated” about WikiLeaks disclosure of Democratic National Committee emails.
Attaining that redacted grand jury material may come down to whether Democrats are in a formal “judicial proceeding,” such as an impeachment inquiry.
In a recent court filing, Judiciary Committee Democrats argued that they should be able to obtain the redacted sections of Mueller’s report because their investigation of Trump’s possible wrongdoing falls under the exception for judicial proceedings, include including impeachment proceedings.
But the Justice Department pushed back, using Democrats’ own words to argue that they are not engaged in an official judicial proceeding.
In legal filings, the DOJ quoted Judiciary Committee Chairman Jerry Nadler saying that “[a]n impeachment inquiry is when you consider only impeachment. That’s not what we’re doing.” Nadler has continued to waffle over whether his panel’s investigation is an actual “impeachment inquiry.”
Hans von Spakovsky, a senior legal fellow at the Heritage Foundation, said he believes Republicans are overplaying the impact of Pelosi’s resistance to holding a vote on the inquiry.
Republicans are severely limited in launching any type of counter-investigation because of their minority status in the House, he said.
“I think Republicans are limited in what they can do, whether Pelosi holds a vote or not, because they are a minority and the Democrats can out-vote them on any issue and any procedures,” he told RCP.
Van Spakovsky said he suspects Pelosi didn’t hold a vote because she is trying to strike a balance between satisfying “radical” members of her own caucus who have wanted to impeach Trump “since the first day he became president” and trying to avoid forcing Democrats in districts that backed him in 2016 from voting in favor of an impeachment investigation.
“By not holding a vote, she gets the best of both worlds,” he said.