Tensions Sure to Flare in Mark-Up Process for Impeachment Articles

Rep. Jerrold Nadler, D-N.Y., center, speaks during a hearing last week of the House Judiciary Committee on the constitutional grounds for the impeachment of President Donald Trump. (Drew Angerer/Pool photo via AP)

WASHINGTON (CN) – Impeachment of a president is rare indeed but on Wednesday the marvel of the moment runs headlong into a more familiar routine for lawmakers who will gather to debate and finally complete the articles of impeachment for President Donald Trump in a traditional legislative hearing known as a markup. 

The House Judiciary Committee holds the reins at this phase in the impeachment process, and Republicans and Democrats will convene at 7 p.m. to discuss amendments proposed Tuesday to the two articles against Trump, abuse of power and obstruction of Congress. 

If history is any guide, this markup will likely be contentious. Democrats control the committee majority: 24 Democrats to 17 Republicans.

At every turn of the impeachment inquiry, Republicans have attacked the legitimacy of the process. Now that the articles of impeachment have been unveiled, they are unlikely to abandon that strategy.

The House minority first assailed the closed-door questioning of witnesses as secret testimony in a congressional “bunker,” their derisive description of the secure facility in the basement of Congress. 

Democrats defended the secrecy as a necessary part of the process, akin to a grand jury proceeding in a criminal prosecution. Their release of the closed-door testimony in full, in reams of thousands of pages of documents, has not stifled Republicans’ criticism. 

More than 100 hours of testimony from 17 witnesses later — many conducted in full view of international broadcasters for the public — the House minority continues to depict the impeachment inquiry as a proverbial Star Chamber, the English court that became a symbol of political oppression, in which President Trump’s due-process rights have been violated.

Trump boycotted the proceedings, explaining his position in a two-paragraph missive from White House counsel Pat Cipollone. 

In raising procedural objections to the process, Republican Congress members have interrupted witness testimony to raise multiple motions — among them, bids to schedule a minority hearing and expose the whistleblower who set the impeachment inquiry in motion — with little success.

Making liberal use of his gavel, House Judiciary Committee Chairman Jerrold Nadler of New York has tabled these motions with a united Democratic front behind him.

Republicans typically have dragged out the process by pushing their motions to a roll call, even when it has become clear that they are outvoted in the committee.

Where this road ends for the committee, however, won’t be revealed Wednesday night.

The markup hearing is scheduled over two days with the second session held on Thursday at 9 a.m. Once completed, the finalized articles head to the full House for a vote, likely sometime early next week.

Forty-five years ago the House Judiciary Committee voted in favor of impeaching then-President Richard Nixon, but the final vote included its share of pushback as committee Republicans initially rejected the process with as much vehemence as seen from GOP committee members today. 

Ken Hughes, an expert on Watergate with the University of Virginia’s Miller Center, has spent time recently reviewing decades-old remarks from members of the 1974 committee. 

History, as it often does, has repeated itself, Hughes noted in a recent interview with Courthouse News. 

“It’s amazing how much political rhetoric of 2019 echoes that of 1974,” he said. “Republicans in 1974 called the impeachment inquiry a witch hunt and a kangaroo court. They complained their witnesses were not being called, that hearings were held in closed doors in executive session and that the president was the victim of selective leaks. That much hasn’t changed.”

But congressional Republicans of yore, like the 1974 committee’s ranking Republican member Edward Hutchinson, were willing to “stand up for the constitutional role of Congress,” Hughes said.

Hutchinson urged members to understand that a president could not use his executive privilege to withhold witnesses or documents. The committee’s own Republican counsel at the time, Albert Jenner, agreed with Hutchinson and even went so far as to issue a warning to the committee that the president’s refusal to comply would assuredly be the basis for an article of impeachment.

Hutchinson would be the equivalent on the committee today to Representative Doug Collins, the Republican ranking member who has put forward a staunch defense, top to bottom, of Trump’s conduct with Ukraine and the president’s refusal to submit to congressional oversight.

Collins and other Republicans on the committee today likely would not recognize the committee’s minority members of the Nixon era.

Take Robert McClory, Hughes said, a Republican committee member from Illinois who argued for Nixon’s impeachment based on his obstruction of Congress.

“He said things it’s hard to imagine any congressional Republican saying today,” Hughes remarked.

McClory argued in committee that the “doctrine of executive privilege has no application whatsoever in an impeachment inquiry,” Hughes recalled, citing one of McClory’s speeches. 

On this, McClory was adamant.

“The president’s position has been that he should be the sole arbiter of what is — what should be turned over and what he should not turn over,” he said in 1974. “Well, if he’s to be the sole arbiter, then how in the world can we conduct a thorough and complete investigation. We just couldn’t.” 

Even one of Nixon’s most loyal defenders, Charles Wiggins, a California Republican on the committee, at least acknowledged that the president’s refusal to comply with subpoenas was an impeachable offense.

“The Constitution recognizes the primary of the legislative branch in impeachment,” Wiggins said at the time.

Wiggins ultimately voted down the article on obstruction of Congress.

“But he recognized its legitimacy,” Hughes noted. “In 1974, most Republicans on the House Judiciary Committee towed the party line and voted against impeachment but some of them put the Constitution and the rule of law above their partisan interests. And that was crucial.” 

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