Judiciary Democrats spent roughly seven months investigating a litany of allegations that President Donald Trump abused his power, but the charges laid out in the articles of impeachment unveiled Tuesday don’t reflect any of that work.
The result is the latest sign that the panel with sole jurisdiction over drafting articles of impeachment has been marginalized as its probe became overshadowed by allegations that Trump pressured Ukraine to investigate his domestic political rivals, withholding a White House meeting and congressionally appropriated security assistance as leverage.
Speaker Nancy Pelosi announced the impeachment inquiry Sept. 24, saying the probe would focus on Ukraine and setting up a process that limited the Judiciary Committee’s role. Multiple Democratic sources have suggested she intentionally sidelined the panel after moderate caucus members complained Judiciary Chairman Jerrold Nadler botched hearings on former special counsel Robert S. Mueller III’s report on Russian interference in the 2016 election and Trump’s obstruction of that investigation.
Under Pelosi’s process, the Intelligence, Oversight and Foreign Affairs panels conducted the evidence-gathering and deposed 17 fact witnesses, 12 of whom also testified at public hearings before the Intelligence Committee.
The matter was formally handed over to the Judiciary Committee last week, giving it only a brief time in the spotlight. The panel had just two hearings, one with testimony from constitutional law professors and another with presentations of the evidence from Intelligence and Judiciary counsels.
Judiciary Democrats did not bring any fact witnesses before the panel and rejected the eight witnesses Republicans wanted to call as falling outside the scope of the inquiry or otherwise unnecessary to advance testimony already provided to the Intelligence panel. The White House, which was not afforded a role in the Intelligence Committee’s proceedings, declined an invitation to participate in the Judiciary hearings.
Florida Rep. Val Demings, one of only two Democrats on both the Intelligence and Judiciary panels, said the decision to have the former lead the investigation was appropriate because the allegations dealt with national security, and evidence could have delved into classified information.
“Now we’re doing what Judiciary was created to do,” Demings said. “Intel did the investigation, sent it over to Judiciary. We’re here to uphold the Constitution and the rule of law and write articles of impeachment. So I feel good about where we are.”
Pelosi ensured the drafting of the articles was done in coordination with all six committee chairs who investigated Trump’s abuses of power. But only the findings from the Ukraine probe led by her longtime ally and fellow California Democrat Adam B. Schiff, the chairman of the Intelligence Committee, were incorporated.
The decision to only charge Trump with abuse of power and obstruction of justice in relation to Ukraine came despite signals from Nadler that he wanted Mueller’s findings to be included in the impeachment articles. The New York Democrat brought up the special counsel’s investigation in his opening statement at the Dec. 4 hearing with constitutional experts, saying Trump welcomed Russia’s interference in the 2016 election.
“When his own Department of Justice tried to uncover the extent to which a foreign government had broken our laws, President Trump took extraordinary and unprecedented steps to obstruct the investigation, including ignoring subpoenas, ordering the creation of false records, and publicly attacking and intimidating witnesses,” Nadler said.
Democrats debated whether to charge Trump with obstruction of justice for his efforts to end the Mueller probe and the House Judiciary investigation that followed up on the special counsel’s work.
Pelosi offered a telling answer when asked during a CNN town hall Thursday if she would agree if Nadler wanted to include findings from Mueller in the articles.
“We’re operating collectively,” she said. “It’s not going to be ‘Somebody puts something on the table.’ We have our own, shall we say, communication with each other.”
On Tuesday, the speaker declined to say if she was the one pushing the narrow approach but noted that she supports her chairmen.
“It’s no use talking about what isn’t,” she said at Politico’s Women Rule summit. “This is what is, and that’s how we’re going forward.”
Ahead of the decision on articles, Nadler and Schiff both appeared on Sunday political talk shows and signaled their preferences without directly staking a position.
“We’re going to have to decide what to do … after we have the evidence tomorrow and after consultations with others in the caucus,” Nadler said on NBC’s “Meet the Press.” “There are a wide variety of factors that have to be considered, including the degree of proof, the degree of confidence and where the members of the caucus are. We certainly have an abundance of evidence on various things.”
But the abundance of evidence Nadler clearly found in the Mueller report didn’t seem to be enough for Schiff. The former prosecutor told CBS’ “Face the Nation” that his strategy in a charging decision is to go with “the strongest and most overwhelming evidence and not try to charge everything, even though you could charge other things.”
“There is overwhelming evidence that the president sought to coerce Ukraine into interfering in our election, essentially sought to cheat in our next election by getting a foreign government to weigh in,” he said. “And the president also deeply sought to obstruct the investigation into that wrongdoing. And I think that is the gravamen of the offense here.”
Schiff basically summarized the two articles as they would be drafted. His view was buoyed by a majority of the caucus who felt a simple case focused on Ukraine would be easiest to explain to the public.
Moderate Democrats, ones from districts Trump won in 2016, in particular, wanted to avoid articles on the Mueller probe for fear it would be seen as an attempt to relitigate the 2016 election.
Most Judiciary Democrats have been careful not to publicly voice frustration with their limited role in the impeachment process. But the fact that they were overruled on the scope of articles is difficult to hide.
More than half of the 24 Democrats on the panel were ready to open an impeachment inquiry not long after the release of Mueller’s report this spring. The rest of the caucus came around after the Ukraine matter was unearthed. As that investigation unfolded, Judiciary Democrats frequently expressed interest in charging Mueller’s obstruction of justice findings.
Judiciary Democrats offered strikingly similar explanations Tuesday, suggesting the articles incorporated Mueller’s findings even though there were no direct references to his report in the resolution.
“All of the evidence of obstruction of justice contained in the Mueller report becomes pattern evidence in the impeachment articles,” Maryland Rep. Jamie Raskin said. “It really demonstrates a pattern of obstructing justice and interfering with investigations, so that’s the critical thing there. Similarly, the evidence of the president inviting Russia in and embracing Russian involvement in our election becomes the pattern evidence for the invitation to President [Volodymyr] Zelenskiy to get involved in our elections.”
California Rep. Eric Swalwell also argued that “the president’s pattern of conduct” was reflected in the articles.
Nadler, at Tuesday’s news conference with Pelosi, Schiff and the other chairs to announce the articles, also described “a familiar pattern” as he mentioned the obstruction of Congress charge.
The word pattern does not appear in the nine-page resolution, but each article makes obscure reference to “consistent” behavior.
“These actions were consistent with President Trump’s previous invitations of foreign interference in United States elections,” the abuse of power article reads after describing Trump’s actions regarding Ukraine.
A line in the obstruction of Congress article following a description of Trump’s efforts to block the Ukraine probe reads largely the same: “These actions were consistent with President Trump’s previous efforts to undermine the United States Government investigations into foreign interference in United States elections.”
Changes not expected in markup
The Judiciary Committee is scheduled to mark up the two articles of impeachment Wednesday and Thursday. Panel Democrats say they’re not anticipating the articles to change much, if at all, during markup — another sign that they’re following leadership’s lead, not the other way around.
“I can’t imagine one right now,” Georgia Rep. Hank Johnson said when asked about amendments he and his colleagues may offer. “I think these articles have been well thought out, and we’ve been briefed on them, and I don’t expect that there’s going to be any [Democratic] amendments.”
If Democrats do offer any amendments, they will be “friendly” ones, he said.
Republican amendments likely won’t be so friendly. But they also won’t be substantive, according to Judiciary ranking member Doug Collins.
“There’s no way you can fix bad [articles], and we’re not going to because we don’t believe he should be impeached, we don’t believe he should be censured,” the Georgia Republican said. “I think you’ll see amendments that will allow for further debate and further comment.”
Collins and Judiciary Republicans have panned the impeachment inquiry as a “sham” and have been quick to point out that Pelosi took power away from the Judiciary Committee. During one hearing, Collins called the panel “a shell” of its former self.
“It’s very concerning, I’ll say that,” he said Tuesday. “And look, I think Chairman Nadler did what he felt he would need to, but I do believe that they’ve set very bad precedent for the future.”