Democrats’ confusing debate over an “impeachment inquiry,” explained

As support rises among House Democrats for an impeachment inquiry into President Donald Trump, the questions of what exactly an impeachment inquiry is, and what support for it even means, have become increasingly muddled.

That may be by design — since Democrats are split by dueling political incentives.

On Monday, House Judiciary Committee Chair Jerry Nadler (D-NY) still avoided characterizing his committee’s ongoing probe of Trump’s conduct as an impeachment inquiry. But he said on MSNBC that he thought his committee could vote on articles of impeachment in just a few short months (by “late fall, perhaps”).

Meanwhile, as various House Democrats have called for an impeachment inquiry to begin, some Judiciary Committee members have claimed that, well, it already has. The committee “officially started its investigation into the abuse of power by President Trump on March 4, 2019,” Rep. Ted Deutch (D-FL) wrote in an op-ed last week. “In every meaningful way, our investigation is an impeachment inquiry,” he added. So what’s going on?

The background is that Speaker Nancy Pelosi firmly opposes any impeachment push, apparently believing it could imperil Democrats representing districts Trump won and risk her majority. But the party’s base and activists strongly support impeachment — whether over special counsel Robert Mueller’s findings about obstruction of justice or the president’s other conduct in office. So House Democrats, particularly those in more liberal districts, are feeling the pressure.

Now, most of the caucus has been hesitant to outright say that Trump either should or shouldn’t be impeached. So an increasingly popular line has been for Democrats to announce they support opening an impeachment inquiry — which signals concern with Trump’s behavior and sounds like an open-minded effort to get more facts, without committing to a final impeachment position. And now, apparently unable to get leadership’s approval to open a formal inquiry, some Judiciary Democrats are now claiming that their existing investigation happens to be perfectly well-suited to the task.

The real question that divides Democrats, though, is not whether the Judiciary Committee should investigate Trump, but whether House Democrats should put Trump’s impeachment at the top of their political agenda and plunge ahead into that fight.

So it’s not yet clear if Nadler’s latest comments suggest a serious escalation that really could lead to Trump’s impeachment in the not-too-distant future — or whether they’re instead Democrats’ latest attempt to convince their base they’re “doing something” on impeachment despite Pelosi’s continued opposition to, well, actual impeachment.

What is an impeachment inquiry?

The Constitution gives the House of Representatives the power to impeach the president of the United States for high crimes and misdemeanors. (The Senate, meanwhile, then gets to decide whether to actually remove the president from office after impeachment.)

Now, there are few hard-and-fast rules about how impeachment is to get started in the House. There are two main 20th-century examples — Richard Nixon and Bill Clinton — in which the process really kicked off once an official “impeachment inquiry” was opened by the House Judiciary Committee. (Though there is no formal requirement that impeachment start in this way.)

The Nixon and Clinton inquiries were also very different from each other, and had different relationships to existing executive branch probes of each president.

The Nixon inquiry was an intensive, lengthy investigative effort that proceeded alongside the special prosecutor’s continuing grand jury investigation into the Watergate break-in and cover-up and a Senate select committee inquiry into the matter. The House Judiciary Committee opened it in October 1973 (after the Saturday Night Massacre), the House voted to back it in February 1974, and it lasted until July 1974. Major new revelations about the scandal kept breaking throughout that period, and eventually, the committee got to review secret information from the grand jury probe.

The Clinton inquiry, meanwhile, was essentially just a decision about whether to impeach the president based on the findings of independent counsel Ken Starr’s report (which alleged Clinton committed perjury and obstruction of justice to try to cover up his affair with Monica Lewinsky). That impeachment inquiry was officially opened in the Judiciary Committee after votes by the committee and then the whole House in October 1998. The committee held a few weeks of hearings and heard witness testimony (including from Starr), but it wasn’t really a new investigation, and it was over by mid-December.

For both Nixon and Clinton, the inquiries concluded when the Judiciary Committee drafted articles of impeachment and voted to approve them, sending them on to the full House. (Nixon resigned before he could be impeached; Clinton was impeached by the House and then acquitted in the Senate.)

Overall, then, a House impeachment inquiry can be a serious and novel investigative endeavor that unearths new information in an evolving scandal. But it can also be a relatively simple assessment of whether an already-completed investigation’s findings (in Trump’s case, the Mueller report) are impeachment-worthy. The former approach would have no imminent endpoint and take a lot more effort with uncertain results, while the latter approach would be easier and quicker.

Nadler has not opened an impeachment inquiry

On March 4, 2019, Nadler announced that the House Judiciary Committee would investigate “alleged obstruction of justice, public corruption, and other abuses of power by President Trump, his associates, and members of his Administration.” Nadler soon sent a plethora of document requests and subpoenas for testimony. This has been the main probe in which the Judiciary Committee has looked into the Mueller report’s findings and other Trump scandals.

For fairly straightforward reasons, this is not actually an impeachment inquiry into President Trump:

• Nadler has strenuously avoided calling it an impeachment inquiry.
• The House Judiciary Committee never voted to formally open an impeachment inquiry — something it did for Nixon and Clinton.
• The full House of Representatives never voted to formally approve an impeachment inquiry — something it did for Nixon and Clinton.
• Various House Democrats have gradually been announcing that they support opening an impeachment inquiry into Trump, which would certainly seem to imply there is not one already open.

Now, Nadler has stated that Mueller’s report “presents very substantial evidence that the president is guilty of high crimes and misdemeanors.” He’s also said all along that his investigation could eventually lead to the drafting and consideration of articles of impeachment against Trump. But impeachment is not the main declared purpose of this investigation.

Yet half the Democratic caucus now does support opening an impeachment inquiry. And Nadler — who happens to have a primary challenger arguing he hasn’t done enough on impeachment — has reportedly pushed Pelosi to let him open a formal inquiry. (Nadler evidently does not wish to be portrayed as the sole obstacle standing in the way of impeachment, and would rather Pelosi play the heel.)

For now, such an inquiry remains unopened. Nadler could theoretically just hold a vote in his committee to open one, but it seems Pelosi will not allow that and he is currently unwilling to cross her.

Some Democratic impeachment supporters have started to argue they don’t even need a formal inquiry

Yet since special counsel Robert Mueller’s congressional testimony in late July, there has been a rhetorical shift from several members of the Judiciary Committee — to try to redefine their existing probe as that much-demanded impeachment inquiry.

For instance, on Friday, July 26, Nadler told reporters that, as part of a lawsuit seeking Mueller investigation records, his committee would tell a judge they’re considering whether to use “a constitutional power of the utmost gravity: recommendation of articles of impeachment.” This was clearly a deliberate dropping of the “i-word,” though not yet the “double-i phrase.” (Some legal experts have argued that the committee is more likely to succeed in these and other lawsuits if it cites its constitutional impeachment authority.)

At that press conference, his fellow committee members went further. Rep. Mary Gay Scanlon (D-PA) characterized the committee’s probe as “an investigation to see if we should recommend articles of impeachment” — an investigation that started “months ago.”

“A lot of people believe we’ve been in an impeachment inquiry ever since we started looking into high crimes and misdemeanors,” Rep. Jamie Raskin (D-MD) said, while clarifying that his own preferred word choice was “impeachment investigation.”

Raskin also made a point that’s becoming increasingly popular among impeachment-curious Democrats — that “there’s no formal or statutory or House rule for how an impeachment inquiry is to begin.”

This was the argument Deutch used in his op-ed last week. He said that the votes authorizing past impeachment inquiries were necessary to give the Judiciary Committee “additional subpoena authority.” But, he wrote, today’s Judiciary Committee already has the subpoena power it needs. Therefore, “no vote to authorize an impeachment inquiry is necessary” — because “the inquiry has already begun.”

Now, it may seem a bit convenient that, having been unable to open an impeachment inquiry, Democrats suddenly discovered they didn’t need one anyway — just in time for them to go home for the August recess and brag to their liberal constituents about how they’re holding Trump accountable.

But there is indeed some truth to this argument. As Raskin and Deutch say, there’s nothing specific that would necessarily distinguish an “impeachment inquiry” from a regular old investigation, beyond the name and the political valence. If the Judiciary Committee wants to draft, debate, and approve articles of impeachment as part of this existing inquiry, there’s theoretically nothing stopping it from doing so.

But is this for real?

The question of whether this is a face-saving rebranding or a step toward potential impeachment is really up to Nadler, though.

For the moment, his committee is still not yet affirmatively trying to impeach Trump, and doesn’t seem particularly close to doing so. Yet in an MSNBC appearance Monday morning, Nadler signaled that votes on articles of impeachment could come sooner than many currently expect.

Nadler said his next steps with the probe will be twofold:

1. In the courts, the committee is hoping for rulings on getting Mueller’s grand jury material and compelling testimony from recalcitrant witnesses by “the end of October” or “shortly thereafter.”
2. But he’ll also have “hearings in September and October with people not dependent on the court proceedings” — that is, witnesses who will agree to testify.

Then, he said, “If we decide to report articles of impeachment, we could get to that in the late fall, perhaps — in the latter part of the year.”

That’s just a few short months away. So if Nadler is serious about that timeline, we really could be headed on a path toward Trump’s impeachment by the end of the year.

Still, the reluctance to even call what he’s doing an “impeachment inquiry” may be indicative of the political hesitancy here.

Despite all the hair-splitting and pontification around “opening an impeachment inquiry,” that’s not really what the Democratic divide is about. The true split is over whether the party should plunge full steam ahead with impeaching Trump in the House, beginning a political battle that would dominate headlines for the foreseeable future.

Nadler certainly could draft impeachment articles and hold Judiciary Committee votes on them even if Pelosi still doesn’t want this fight. But reporting articles of impeachment would be tossing a hot potato — or a live grenade — out of his liberal-dominated committee and into the full Democratic caucus (which contains 31 Democrats representing districts Trump won in 2016). And so far, House Republicans remain united behind Trump (Rep. Justin Amash, who says he backs an impeachment inquiry, has left the party).

A full House vote of approval for an impeachment inquiry would signal that, yes, the Democratic caucus is ready to tackle this fraught issue. But so far, one hasn’t happened. And that’s likely because of not just Pelosi’s recalcitrance but also larger fears about the strategy within the caucus. Yes, about half of House Democrats now publicly say they support an impeachment inquiry — but the other half still haven’t.

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