“I’ve Never Seen Evidence So Clear”: Inside the House Effort to Draft Articles of Impeachment

November 25, 2019
In The News

In February, 1974, just as the House Judiciary Committee’s impeachment inquiry into Watergate was getting under way, John Doar, the inquiry’s lead counsel, asked two young staffers to prepare a report. The impeachment of a President was, at the time, all but unprecedented—the only previous instance had taken place more than a century earlier, in 1868—and Doar wanted to know how he and the Committee ought to interpret the famously terse phrase “Treason, Bribery, or other high Crimes and Misdemeanors,” which the Constitution, in Article II, Section Four, established as acceptable grounds for impeachment. One of the staffers assigned to the task was Hillary Rodham, a twenty-six-year-old Yale-trained lawyer who’d joined the staff after working at the Children’s Defense Fund. The other was Bill Weld, a twenty-eight-year-old attorney from a Boston law firm, who at that point was still nearly two decades away from being elected the sixty-eighth governor of Massachusetts. Rodham and Weld were among the earliest staff attorneys hired by Doar, and their first project was to determine what counted as impeachable conduct.

As Weld told me last week, the inquiry staff had set up shop in what had recently been the Hotel Congressional, a block away from the Capitol. Not long after Weld started, Doar called him and Rodham into his office. “He said, ‘Bill, Hillary, I need a memo on what’s grounds for impeachment or removal of a President, but it’s Friday afternoon, so what do you say? You have it on my desk Tuesday morning.’ So we went to the Library of Congress and looked in the law books and went nearly blind looking for a definition of what was an impeachable offense. Many weeks later, a whole bunch of us concluded, or realized, that you don’t look in the law books for that; you look in the newspapers.”

Weld found newspaper articles from Philadelphia in 1787, and comments in the Founders’ constitutional debates, about the impeachment of Warren Hastings, the governor-general of India, which would end in acquittal after a seven-year trial for high crimes and misdemeanors—specifically, gross maladministration, corruption in office, and cruelty. The lessons that the inquiry’s report took from English precedent were, on the one hand, that “high crimes and misdemeanors” had “no roots in the ordinary criminal law” and, on the other, that the phrase was used to describe parliamentary impeachments that had to do with “damage to the state in such forms as misapplication of funds, abuse of official power, neglect of duty, encroachment on Parliament’s prerogatives, corruption, and betrayal of trust.”

Weld is running against Donald Trump for the Republican Presidential nomination next year, but, unlike Mark Sanford, who was, briefly, another G.O.P. primary challenger, he thinks that there is no question that Trump ought to be impeached. When I asked what articles he would draw up this time around, he proposed three. “No. 1”—listed under the heading of bribery and extortion—“would be the Ukraine caper, because that’s such a classic example for impeachment,” he said. “The two things that the framers of the Constitution were most worried about were foreign interference in our affairs and corruption of office, by which they meant—and by which I mean—abuse of the President’s office in order to secure a personal gain, a private gain, whether it’s financial, whether it’s political, whether it’s for the President himself, whether it’s for his family.” Weld says that the evidence presented in the House Intelligence Committee’s public hearings in the past two weeks amounts to “the most quintessential, classical example for impeachment and removal that, frankly, I’ve ever seen or could conceive of. I’ve read the transcript of every page of every impeachment trial in the history of the United States, and there’s nothing like this.”

A second article, Weld suggested, might comprise the “ten examples of clear and convincing evidence of obstruction of justice, which are contained in Volume II of Bob Mueller’s report.” There, too, he said, “I can tell you, having conducted and supervised many obstruction-of-justice investigations, I’ve never seen evidence like that. I’ve never seen evidence so clear.” Weld said “a third possible article would be—similar to the third article against President Nixon—contempt of Congress.” On that front, “President Trump and his defenders have gone beyond any historical claim ever made,” he added, by asserting that “Congress has no authority to investigate him at all.” He alluded to a recent speech by William Barr, in which the Attorney General, as Weld put it, “said that the President’s power under Article II is so absolute that he can’t be questioned as to why he exercised the power.” That, Weld said, is “nothing other than the divine right of kings.”

Zoe Lofgren, a representative from California, also worked for Congress during Watergate, on the personal staff of one of the Democrats who served on the Judiciary Committee. Last week, as Alexander Vindman, a National Security Council director, and Jennifer Williams, an aide to Vice-President Mike Pencetestified in a lavish committee room three floors below her office, Lofgren recalled the arrival of the Watergate inquiry’s staff at the Hotel Congressional, which she remembers as a “really crummy building.” Though Lofgren was still a law student at the time, and had come to Washington to work on a bankruptcy bill, she helped draft one of the articles of impeachment against Nixon. “It was like trying to figure out, ‘We’ve got all this evidence—what are we going to do?’ ” she said. The articles came together quickly: Doar released a first set of proposed articles on Friday, July 19, 1974; public hearings on a revised set began the next Wednesday; and the first votes were held that Saturday, July 27th.

Lofgren is now the second-most senior Democrat on the House Judiciary Committee, and a similar task will soon await her and her colleagues. Democrats on the Intelligence Committee, working in consultation with members on the Oversight and Foreign Affairs Committee, have already begun working on a report that will detail the results of the Ukraine investigation. As Ted Lieu, a Judiciary Committee member from California, told me last Thursday, “A number of people on the Intelligence Committee are going to have a very busy Thanksgiving. They will be writing a report to deliver to the Judiciary Committee, and we’ll get that some time in early December.” Once the Judiciary Committee receives the report, it will begin working, in close consultation with Nancy Pelosi, the Speaker of the House, to determine whether to bring articles of impeachment to the House floor, and what those articles ought to be. “I think if we’re going to go down the road to formal articles of impeachment,” Lieu said, “that we would do it before the end of the year.”

Democrats, for now, are being careful not to say anything too specific about what they expect in the coming weeks. In the two months since the whistle-blower complaint was delivered to Capitol Hill, the Democrats have deposed seventeen witnesses, and they have assembled a strikingly robust factual record of what happened in Kyiv and in Washington this summer. But the price of this remarkable pace is abandoning the luxury of extended planning: the forward-looking horizon of the Democrats and staff members working on the impeachment inquiry has lately been measured in days, not months. As a judicial-committee aide told me on Saturday, “So much of all of this is still being decided on. There’s nothing certain.”

And yet, there is little doubt that at least some articles will be filed. Lieu, for instance, told me that “people can disagree on whether, as a political matter, we should do impeachment, but I think, as a factual matter, the President engaged in misconduct that would qualify as impeachable conduct.” Less certain was how many and how broadly any articles associated with the Ukraine scandal would be framed. On Wednesday—after Gordon Sondland, the Ambassador to the E.U., testified not only that the President had demanded a quid pro quo from Volodymyr Zelensky, the President of Ukraine, but that Mike Pompeo, the Secretary of State, and even Vice-President Pence were aware of the demand—Eric Swalwell, of California, who sits on both the Intelligence and Judiciary Committees, told me that he’d seen “strong evidence” of bribery, abuse of power, and obstruction of Congress. Throughout the inquiry, the Trump Administration has refused to turn over documents to House Democrats, and Sondland complained repeatedly last week that he had not been allowed access to phone records, State Department e-mails, and other documents that would have helped him check his memory about certain details. While Swalwell was still reserving final judgment on which articles he thinks should be filed, he said of the Administration, “The only reason they’re blocking access is because it would help witnesses piece together this scheme rather than exonerate the President.”

A bigger question is whether Democrats will attempt to frame articles around any of the other matters that they have been investigating. A few weeks after Pelosi announced an official impeachment inquiry, in late September, an aide to the inquiry told me that two other Oversight Committee investigations were also being considered as part of the effort, one that examined the President’s potential violations of the Constitution’s foreign-emoluments clause, and another that looked into allegations by Michael Cohen, the President’s former personal lawyer and fixer, that Trump and his company had misled their lenders and the tax authorities about the value of their properties. What’s more, lawyers for the Judiciary Committee have recently argued in court that they are still considering whether to bring articles based on the Mueller report, especially for obstruction of justice.

Unlike in a criminal case, the Watergate report argued, “the cause for the removal of a President may be based on his entire course of conduct in office.” There has been no suggestion that the Democrats are now seriously considering such a broad indictment of the President. As Pramila Jayapal, a Democrat of Washington, put it to me, “This is not about ‘What do we not like about the President?’ and ‘Do we think he’s racist or not?’—which are things that trouble me deeply. But that’s not what this is.” Jayapal, like every other Democratic member I’ve spoken to, insisted that “we’ll literally just follow the relevant facts; we’ll take a look at all of the information in front of us, and then we’ll figure out where we go from there.” At the same time, she said, “what I am struck by as I’ve watched these proceedings is that Ukraine is really just a restatement of a pattern that we saw with the Mueller report.” As a hypothetical example of what a more broadly inclusive impeachment article might look like—“I’m not speculating on what the articles would be!” she said—Jayapal cited obstruction of Congress. Most of such an article, she explained, “could be around what happened with the Ukraine scandal, but you could potentially bring in some other pieces that reflect that pattern.”

For now, the odds appear to favor a narrow set of articles centered on Ukraine. Mary Gay Scanlon, for instance, the vice-chair of the House Judiciary Committee and a former attorney from Pennsylvania, told me, “I know, coming from a trial background, you can’t have the kitchen sink. You have to have a theory and go with it, and not clutter things up too much.” Lieu alluded to his past work as an Air Force prosecutor when he told me that “both for explaining to the American people, as well as to the jury, which in this case are a hundred senators, it’s always more effective to keep things straightforward and simple. You don't want to confuse the issues. Trump has engaged in a lot of misconduct. I think some of the misconduct voters can decide at a ballot box. The difference with the Ukrainian issue is that it directly affects elections.”

For other Democrats, the argument for presenting a narrow set of articles is historical in addition to being political. Lofgren, for instance, told me that she had opposed impeachment when the Mueller report was released. Even though “you had very clear instances of obstruction,” she said, “unless you can see what the coverup is covering up, and whether that activity meets the definition of high crime and misdemeanor, it doesn’t really take off.” In 1998, when she was a junior member of the Judiciary Committee, Lofgren filed a dissenting view in the Clinton impeachment, which she opposed in part based on her reading of the Watergate staff report. “The 1974 Report instructed us,” she wrote, “that: ‘not all presidential misconduct is sufficient to constitute grounds for impeachment. There is a further requirement—substantiality.’ ” As Lofgren described it to me last week, “There’s a lot of things that meet the criteria of bribery. Like, if you eat your peas, you get dessert. But the gravity issue is what damage has been done to the system of government? And what risk is there to the democracy? That’s what we have to decide.” And, although she professes to be reserving judgment for now—“you can’t rule out that something else could pop up tomorrow”—she allowed that “at this point the information that’s in the public arena that’s clear and overwhelming is the Ukraine matter.”

On Monday, a district-court judge is expected to decide whether Don McGahn, the former White House counsel, is required to comply with a congressional subpoena. The case is likely to be appealed, but its ultimate outcome will influence whether key witnesses in the Ukraine matter, such as Mick Mulvaney, the acting White House chief of staff, and John Bolton, the former national-security adviser, feel compelled to testify. Dangerous as the candid testimony of someone like Bolton could be for the President, any public hearings that the Judiciary Committee decides to hold could also present some risk for the Democrats. Unlike the Intelligence Committee hearings, and following the precedent of the Nixon and Clinton impeachments, any Judiciary Committee hearings will formally involve the President at every step: he will be allowed to request new witness testimony; he will be allowed to submit other evidence for the Judicial Committee to consider, including as part of a “full and fair record”; and his counsel will be allowed to attend all hearings, raise objections to any evidence, and question any witnesses. Subject to the approval of the Judiciary Committee chairman, Jerrold Nadler, the President’s counsel will also be allowed to make a concluding presentation, as Clinton’s White House counsel, Charles Ruff, did in 1998. (These rights, however, come with a significant caveat, which did not exist in the Nixon or Clinton impeachments: at Nadler’s discretion, the Judiciary Committee may decide to count any stonewalling by the President as evidence of obstruction of Congress; more drastically, Nadler can even prevent the President and his counsel from calling and questioning witnesses.)

Throughout the inquiry so far, Adam Schiff, the chairman of the Intelligence Committee, has successfully avoided one of the biggest political risks the Democrats ran in putting the Ukraine matter at the center of their impeachment push: namely, that the investigation of a corrupt and ham-handed attempt to smear Joe Biden would end up inadvertently smearing Joe Biden. There was, after all, more than a minor chance that the public hearings, by making reference to the accusations against Hunter Biden, might, perversely, have the same effect as the public announcement Trump demanded of Zelensky. During the past two weeks, Republicans used their time in front of the cameras to mention those accusations every chance they had; even so-called moderates, such as Will Hurd, of Texas, who acknowledged during the public hearing on Thursday that Trump’s call with Zelensky represented “inappropriate, misguided foreign policy,” argued that Hunter Biden’s activities in Ukraine were material to the investigation at hand. Schiff’s unwavering control of the proceedings largely neutralized this threat, but there is no guarantee that Nadler and the Judiciary Committee will have the same luck.

Compared to past impeachment pushes, Democrats’ effort this year has polled well, with most surveys showing majority support for impeachment of the President and more than a few showing majority support for his removal from office. But television ratings dropped each day in the course of the hearings, and, according to a poll tracker at FiveThirtyEight, support among independents for impeachment fell from forty-six per cent on the day before the hearings began to forty-one per cent on Saturday. The risk of diminishing returns is one reason that Mark Meadows, a Republican from North Carolina, told me last Thursday, during a break in the Fiona Hill and David Holmes hearing, that he expected Democrats to keep the articles of impeachment limited to Ukraine. “It’s very dangerous to broaden it out,” he said. “If they spent all this time on Ukraine, with public hearings, and on the impeachment effort, and then, all of a sudden, they throw in a couple of articles where they haven’t had this much time, that’s a hard thesis to support.” Meadows also expects the Intelligence Committee to present its report to the Judiciary Committee the week of December 2nd. “I think it goes at breakneck pace to get to Judiciary and to the floor,” he said. “Any momentum that the Democrats believe they have will only subside if they take a lot longer.”

Given that the House is still expected to impeach Trump on a party-line vote, or something very close to it, I asked Meadows if he thought that the Democrats had overplayed their hand politically. “We won’t know until November of 2020,” he told me. “In my opinion, will this cost some of their Democrat members of the House their seats? I think the answer is yes.” But, he added, “Sometimes, you know, if they believe that their cause is righteous, then that’s probably a cost worth paying.”

Most of the Democrats I spoke to recognize that, as Lieu put it, “it would be extremely difficult to get a conviction” in the Senate, even as they also insist, as Jayapal told me, that “tipping points happen very quickly with public sentiment, and they do depend on the people who have the microphone actually saying how people should think about something. It’s about us helping people to understand what is happening.” But, universally, they argue that what’s at stake in the impeachment fight cuts deeper than any short-term political calculation. “None of us is naïve about the likelihood that, even in the face of overwhelming evidence, the Republican Party is going to do the right thing here,” Sean Patrick Maloney, an Intelligence Committee member, told me after the hearings ended last Thursday. “But, at the end of the day, these things are going to be judged in the light of history, not just in terms of what happens over the next few weeks. I’m very confident about that judgment.”

In May, 2018, Schiff used an Op-Ed in the Times to warn Democrats against impeaching Trump. “Impeachment is an extraordinary remedy,” he wrote, “not to be entertained lightly, and in the case of a president, would mean putting the country through a deeply wrenching process.” In his closing statement on Thursday, however, he explained his reasons for changing his mind: “It came down to timing.” The day after Robert Mueller testified that the President invited Russian interference, he said, “Donald Trump is back on the phone asking another nation to involve itself in another U.S. election. That says to me this President believes he is above the law, beyond accountability.” This was a twist on the argument Democrats have been making for some time. The problem, as Schiff posed it, wasn’t only that Trump abused his power. It wasn’t even that he abused his power to cheat in an election, which was the usual answer to why impeachment, and not mere oversight, was the proper remedy for Trump’s behavior. The problem for Schiff, a former prosecutor, was that Trump was an unrepentant recidivist, a President who was going to keep abusing his office as long as he was allowed to do so.

Ultimately, it will be Nancy Pelosi who decides whether and how any articles of impeachment are framed. Pelosi is known as a meticulous vote-counter, and, given her general tendency not to make legislative moves without knowing that she has the firm support of her caucus, and also her reluctance to support impeachment in the first place, it seems likely that she will only allow articles that have a good chance of unifying Democrats behind them. Yet, in addition to these parliamentary practicalities, she is also, no doubt, alive to the deep symbolism of the choice that now confronts her. Assuming they pass a vote of the full House, the articles will stand as a durable historical marker, a lasting answer to the question of how Pelosi, one of the most effective Speakers of the House in the past century, used her majority to confront a President who, in Weld’s words, “so clearly wants to be a monarch.” In a private caucus meeting in late September, at which Pelosi first announced her support for the impeachment inquiry, television screens in the room quoted a speech that Abraham Lincoln delivered at Cooper Union, in New York, in 1859. “The people are the rightful masters of both Congresses, and courts,” Lincoln said, “not to overthrow the Constitution but to overthrow the men who pervert it.”