Impeachment rights for Trump include loophole for Democrats to take them away

Nadler can deny president and his counsel ability to call or question witnesses, if they block others from testifying

House Judiciary Chairman Jerrold Nadler, center, speaks at a July news conference with Intelligence Chairman Adam B. Schiff and Speaker Nancy Pelosi. The Democrats released rules Tuesday giving the president the ability to participate in House Judiciary’s impeachment proceedings but with a loophole to take those rights away. (Tom Williams/CQ Roll Call file photo)

House Democrats are playing hardball with President Donald Trump. They released procedures Tuesday to allow him and his counsel to participate in the eventual Judiciary Committee portion of the impeachment inquiry, but tucked in a provision that would allow them to take away all the rights they’re granting him.

Under the House Judiciary procedures, Trump and his counsel will be invited to attend all panel proceedings and ask questions. They can also request additional evidence or witness testimony, but the “committee shall determine whether the suggested evidence is necessary or desirable.”

While those due process rights generally align with ones afforded in the previous two presidential impeachments, they provide a big caveat that allows Democrats to strip Trump’s rights away as easily as they gave them to him.

[House Democrats clarify impeachment procedures but probe remains partisan]

Judiciary Chairman Jerrold Nadler has “the discretion” to deny the president and his counsel the ability to call or question witnesses or otherwise “impose appropriate remedies” if the administration refuses to make witnesses available for testimony or fails to produce documents to any House investigating committee.

That provision applies to Trump's stonewalling of any ongoing probes in the Intelligence, Oversight, Foreign Affairs, Judiciary, Financial Services and Ways and Means committees. 

The Trump White House has already blocked administration officials from participating in closed-door depositions in the impeachment inquiry led by the Intelligence, Oversight and Foreign Affairs panels, although some have defied the order and testified under subpoena. 

If the administration doesn’t reverse course and allow the requested witnesses to participate — as well as turn over documents the committees have requested from various government agencies involved in the Ukraine matter at the heart of the probe — they’re risking the ability to participate in the impeachment process later on. 

Nadler told CQ Roll Call Wednesday that the provision is "just a precaution," declining to elaborate further about the rationale for including it.

"I hope we don't need to use it," the New York Democrat said.

House Republican aides said providing the Judiciary chairman such discretion is novel and there is no precedent for it in the procedures for the Clinton and Nixon impeachment proceedings.

The provision gives Nadler broad discretion to punish Trump for stonewalling any aspect of Democrats’ impeachment investigation, not just allegations Trump withheld U.S. military aid from Ukraine to pressure the country to investigate his political rivals that are the primary focus of the inquiry.

If Trump doesn’t turn over his tax returns to the Ways and Means Committee or his financial records to the Financial Services panel — requests he and his counsel are currently fighting in court — Nadler can use his discretion to deny him and his counsel access to the impeachment proceedings. 

The Judiciary Committee’s impeachment procedures were released Tuesday evening by Rules Chairman Jim McGovern. The supplemental document expands on the resolution the Massachusetts Democrat released earlier in the day that outlined procedures for the Intelligence Committee to hold public hearings as part of the impeachment inquiry and required the panel to transfer its investigatory findings to Judiciary.

It’s not clear why the Judiciary procedures were not included in the base text of the resolution, which generally summarized the committee’s role in the process and said the specific procedures governing Judiciary’s proceedings would be entered into the Congressional Record by McGovern. A Rules Committee spokesman did not return a request for comment.

Nadler said it was because the three-page Judiciary procedures were “too long” to be included in the eight-page resolution. The House frequently passes legislation that is longer than 11 pages. 

Republicans will most certainly cry foul about about the loophole Democrats gave themselves to deny Trump access to the proceedings, just as they’ve panned other aspects of the process. And it’s unlikely it convince Trump to cooperate with the probes, which he has already described on multiple occasions as a “witch hunt.”

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