House Democrats dealt themselves several advantages inside the rules for the public portion of the impeachment inquiry, which could have big implications for the speed and perceived fairness of the proceedings.
Under those rules, President Donald Trump’s lawyers couldn’t participate in the high-profile House Intelligence Committee hearings about the president’s dealings with Ukraine that are now central to the inquiry — and aren’t guaranteed a chance to later ask those witnesses questions or object to their testimony.
Republicans couldn’t force committee votes on subpoenas that House Judiciary Committee Chairman Jerrold Nadler or Intelligence Committee Chairman Adam B. Schiff want to issue, a power given to both sides in the Clinton presidential impeachment.
And Nadler could deny the president’s lawyers some procedural protections if the administration refuses to make witnesses available for testimony or fails to produce documents to any House investigating committee.
Republicans and their aides are raising concerns about those provisions ahead of a House Rules Committee markup of the impeachment inquiry rules Wednesday, and an expected floor vote Thursday. House Democrats say they want to make their case in public ahead of the political season next year.
Democrats and their aides point out that the House consideration of articles of impeachment isn’t a trial — that happens in the Senate if the House eventually approves one or more article of impeachment.
The most salient advantage comes from Democrats’ plan to hold hearings first at the Intelligence Committee, which would then send that information to the Judiciary Committee for consideration on possible articles of impeachment.
While the rules give Trump’s lawyers procedural protections that generally align with those given to previous presidents at the House Judiciary Committee, they do not extend those same powers for the portion at the Intelligence Committee that has become the focus of the impeachment inquiry.
Schiff has been leading closed-door depositions with witnesses about whether Trump withheld military aid for Ukraine to pressure that country to investigate former Vice President Joe Biden, one of Trump’s main political rivals. Some witnesses are eventually expected to testify publicly before the Intelligence Committee.
Nadler is not required to have any of those witnesses testify again at the Judiciary Committee portion of the impeachment process. Taken together, that could mean Trump’s lawyers would not get a chance to object to testimony or evidence, or question those witnesses.
Rep. Pramila Jayapal, D-Wash., a member of the Judiciary Committee, said it was possible that some witnesses who appear before the Intelligence Committee would not testify again in the Judiciary Committee.
“I find it ironic that the president and the president's team would argue about process questions, when fundamentally they've ignored all of the process that was set up for the House around subpoenas,” Jayapal said.
“We have looked at all of the previous impeachment hearings, and developed a process that matches what has been done in the past, and I think it will allow for plenty of due process for the president and his attorneys,” Jayapal said.
Rep. Ben Cline, R-Va., a member of the Judiciary Committee, told CQ Roll Call that the panel should be able to call back any witnesses from the Intelligence Committee hearings.
“To ask the Judiciary Committee to move articles of impeachment based on incomplete testimony from witnesses who have already testified, and through a process that was unfair to begin with, I can’t see how any member of the Judiciary Committee would support such a thing,” Cline said.
The rules also give Schiff the power to decide what closed-door depositions to make public, what witnesses to call to testify and what to include in a report that will be sent to the Judiciary Committee.
Because of that, although Republicans on the Intelligence Committee can add their dissenting views to that report, the rules could mean that the president’s counsel is limited to getting only information that the Intelligence Committee decides to transfer to the Judiciary Committee. Republican aides say that could mean information that could be beneficial to the president may never be aired.
Democrats also changed rules about committee subpoenas from those used in the Clinton impeachment. While the panel’s top Republican still will have the ability to call for subpoenas, that ranking member no longer has the ability to call for a committee vote if they disagree with a subpoena the chairman wants to issue.
That would take away Republican power to act as a check on the authority of the chairman, which would encourage reasonableness from both sides, Republican aides say.
While the rules would allow Trump’s lawyers to participate in the eventual Judiciary Committee portion of the impeachment inquiry, a provision would allow them to take away those powers.
Nadler would have “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 administration could risk its ability to participate in the impeachment process if it doesn't reverse course. House Republican aides called the rules unprecedented because no such provision was included in procedures for the Clinton and Nixon impeachment proceedings.
Nadler told CQ Roll Call on Wednesday that the provision is “just a precaution” and that “I hope we don't need to use it,” but declined to elaborate further about the rationale for the provision.
Lindsey McPherson contributed to this report.
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