Opinion

Opinion | Ben Clements and Ron Fein

The case for starting impeachment hearings against Trump

Lesley Becker/Globe Staff; Adobe
Lesley Becker/Globe Staff; Adobe

It’s time to begin impeachment hearings against President Trump. The political-media establishment continues to insist that Congress shouldn’t rush to impeach, but that’s a straw man. Nobody seriously argues that the House should vote now whether to impeach. Instead, it should begin as every impeachment proceeding has begun: with impeachment hearings.

Impeachment is a three-part process. The second and third steps — a vote to impeach in the House of Representatives, and then a trial in the Senate — are specified in the Constitution. But congressional impeachments always begin with a critical first step: The House Judiciary Committee investigates whether to recommend articles of impeachment to the full House. The committee subpoenas documents and testimony, prepares legal analyses, and holds hearings. Through this investigation, the committee determines what the president has done, and whether it constitutes grounds for impeachment.

The grounds for starting impeachment hearings are clear. We already have publicly available evidence of serious impeachable offenses, including obstructing justice, directing federal agencies to target the president’s political “enemies list,” using federal taxpayer dollars to line his own pockets, and pocketing unconstitutional payoffs from dubious foreign governments — and that’s before we even discuss criminal acts to secure the 2016 election.

Some say that the House shouldn’t start impeachment hearings until special counsel Robert Mueller completes his investigation. But that rests on the misconception that only criminal acts are impeachable, ignores historical precedent, and invites Congress to shirk its constitutional duty. Mueller’s investigation focuses solely on what crimes may have occurred in connection with Russian election interference and Trump’s efforts to hinder that investigation. He has no authority to determine whether impeachable offenses have occurred, and his investigation does not cover the full extent of potential grounds for impeachment. For example, Trump’s unconstitutional payoffs from foreign powers and his misuse of federal agencies to harass his political adversaries are impeachable offenses even if they do not involve criminal conduct.

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Nobody knows how long Mueller’s investigation will take. And those expecting a detailed tell-all report could be disappointed — Mueller might not produce that type of report, and Trump and his hand-picked attorney general may find ways to smother many of Mueller’s findings.

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We can learn from the Nixon impeachment process. The Judiciary Committee didn’t sit around waiting for the Watergate special prosecutor. Instead, it started its impeachment inquiry on Oct. 30, 1973 , before the new special prosecutor was even appointed. In fact, the committee didn’t receive a report from the special prosecutor until March 1974. If Congress had waited for that report before even starting, Nixon might have remained in office for another year. And, as with most impeachment proceedings, Congress did not rely on any criminal charge or conviction in the articles of impeachment that ultimately ended Nixon’s presidency.

The same logic applies here. When Mueller or other federal prosecutors provide new evidence, the Judiciary Committee can fold that evidence into its impeachment investigation — just as it did in 1974. The Mueller investigation will continue for many months, if not years, and Congress need not and should not wait for its conclusion before starting the impeachment inquiry.

Some say that we shouldn’t even take this first step until we know the outcome of the final step — a vote after a Senate trial. They argue against even starting an impeachment inquiry until there are 67 guaranteed votes to convict in the Senate. But it’s too early to count Senate votes before the hearings begin. The evidence that will come out at impeachment hearings can persuade reluctant senators and the broader public.

That’s what happened with Nixon. In October 1973, as the Judiciary Committee began its impeachment inquiry, less than 30 percent of the public supported impeachment. (By contrast, today 46 percent support impeaching Trump.) As late as May 1974, most Americans still did not support impeachment, Republicans in both chambers of Congress defended Nixon, and newspapers around the country reprinted a confident editorial statement insisting that “there isn’t a ghost of a chance the Senate will vote to convict.” But three months later, Senate conviction was guaranteed, and Nixon resigned. The impeachment process itself changed public opinion, including in the president’s own party.

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Some suggest that Congress should first hold investigative hearings without using the word “impeachment”; then, after all those hearings, decide whether to start a second round of hearings for impeachment. That’s a recipe for stalling past 2020. An impeachment inquiry takes time. We should take the time to do it carefully — but once, not twice.

We can’t afford to wait. Trump continues to use every power that he has, and some that he doesn’t, to lash out at his critics, distract the public with made-up crises, and do everything in his power to protect himself. Impeachment hearings should begin immediately.

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Ben Clements is a former federal prosecutor, former chief legal counsel to the governor of Massachusetts, and the chairman of the board of Free Speech for People. Ron Fein is the legal director of Free Speech for People. They are coauthors, with John Bonifaz, of “The Constitution Demands It: The Case for the Impeachment of Donald Trump.”