Rep. Jerrold Nadler (D-N.Y.) confirmed that the committee’s investigation into whether Trump obstructed justice, lied in his written response to special counsel Robert Mueller’s questions, or broke other laws or constitutional provisions, is now on a path that could ultimately lead to his impeachment ― or not.
In a reflection of this new direction, the committee explicitly cited Congress’ impeachment power in a new lawsuit to be filed against the Department of Justice on Saturday to obtain the underlying grand jury evidence presented in Mueller’s investigation.
“Because Department of Justice policies will not allow prosecution of a sitting president, the United States House of Representatives is the only institution of the federal government that can now hold President Trump accountable for these actions,” the lawsuit states.
Nadler said the filing will state that the House needs to acquire these documents to decide “whether to exercise its full Article I powers,” including recommendations for articles of impeachment. Numerous legal scholars have stated that courts will be more deferential to congressional requests for testimony and documents when Congress makes those requests under its impeachment power.
“Yes, we’re crossing a threshold with this filing,” Rep. Veronica Escobar (D-Texas) said. “And we are now officially entering into an examination of whether or not to recommend the articles of impeachment.”
Other committee members who have called for an official impeachment inquiry into Trump confirmed that view.
“From my personal point of view, we are in an impeachment inquiry,” Rep. Jamie Raskin (D-Md.) said.
“This is an impeachment investigation,” said Rep. Eric Swalwell (D-Calif.).
Asked if he agrees that the committee is in an impeachment investigation, Nadler replied, “In effect.”
The key difference between a formal impeachment inquiry and what the committee is doing now, according to Nadler, is that the committee is not solely bound to deciding whether to file articles of impeachment, but could opt to move in an entirely different direction.
The decision to move closer to impeachment comes after Mueller testified to the House judiciary and intelligence committees on Wednesday. “Mueller’s testimony removed all doubt” that the president broke the law and lied to the American public about it, Nadler said on Friday.
This declaration appears to be a way to bridge the divide in the House Democratic Caucus over whether to formally launch an impeachment inquiry.
At least 100 House members have backed an impeachment inquiry. That includes at least 15 of the 25 Democrats on the Judiciary Committee. Other Democratic lawmakers have stated they would vote for an impeachment inquiry if it came to that point, but are unwilling to publicly push for it.
But Democratic Party leadership, vulnerable incumbents, particularly freshmen, and the party’s moderate factions have opposed such a move. Speaker Nancy Pelosi (D-Calif.) told reporters earlier on Friday that she was “not trying to run out the clock” on impeachment.
A decision by the committee to declare that it’s engaged in some form of impeachment process without requiring a floor vote takes some burden off the caucus’ most fearful incumbents.
The House Judiciary Committee can pursue this new strategy without an official impeachment inquiry because there is no single way for Congress to impeach a president.
There are some explicit rules laid out in the Constitution. The House of Representatives must vote to impeach a president first. Then the Senate, with the chief justice of the United States presiding, must decide, by a two-thirds vote, whether to convict or not. The House can get to that impeachment vote in any way it sees fit, while the Senate can set its own rules for its trial.
When the House impeached President Andrew Johnson in 1868, there was no formal impeachment inquiry. The House voted to impeach him and then most of the action took place within the confines of the Senate trial.
The only true historical instance of a full-on impeachment inquiry was the 1974 investigation into President Richard Nixon. The House Judiciary Committee began to hire staff for an impeachment inquiry in December 1973. In a nearly unanimous vote, the House voted to empower the committee to initiate such an inquiry. To do so, the committee put together a dedicated staff that worked across partisan lines to investigate and draft articles of impeachment. The committee reported out three articles of impeachment. Nixon resigned before the full House could vote.
The House did formally vote to create an impeachment inquiry ahead of impeaching President Bill Clinton in 1998. The Judiciary Committee, however, only held perfunctory hearings before the House voted to impeach shortly after the midterm elections. Then-House Majority Whip Tom DeLay (R-Texas) pushed Republicans to impeach Clinton quickly to placate the party’s conservative base.
For now, the current Judiciary Committee’s process is going through the courts. Nadler will file a lawsuit for Mueller’s grand jury testimony on Saturday. He will subsequently file suit to enforce the committee’s subpoena for ex-White House counsel Don McGahn’s testimony. The committee’s ability to compel this information would enable it to show the American public what Trump did that warrants impeachment.
“If our committee is going to recommend articles of impeachment to the House, we must make the strongest argument,” Nadler said.