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Representatives Adam Schiff and Nancy Pelosi

Many people are aflutter over the recent announcement that the Democrats plan to pass a resolution in the full House detailing their procedure for the impeachment inquiry.

This is a nice gesture, but it is legally unnecessary and will make no difference.

Again, and again, and again, the Constitution grants to the House of Representatives “the sole power of impeachment.” The Supreme Court has refused to decide the validity of the procedure the Senate used for an impeachment trial, pointing to the passage where the Constitution grants to the Senate “the sole power to try all impeachments.” That opinion contains an interesting discussion of the reasons why judicial review of impeachment procedures is a bad idea.

It is logically impossible to fashion an argument that would justify treating the House differently from the Senate on the question of judicial review of its impeachment procedures, since the Constitution grants to the House “the sole power of impeachment.”

It is equally impossible to fashion an argument that would justify allowing the executive branch to interfere where the Supreme Court fears to tread. The Nixon of the case challenging the Senate impeachment trial procedures was a federal judge, so the Court was allowing one of its own to fall by refusing to decide the case. The reason not to allow the executive branch to interfere with an impeachment investigation of the president is far more compelling still.

The House, according to the Constitution, need answer to no one but itself in fashioning impeachment procedures. In theory, they could violate rights with their investigation in a way that the Court would feel duty bound to defend against, but they have not, and the president has plenty of lawyers to raise such issues if they actually arise.

The president’s objections to House impeachment procedures were always entirely specious. More recently, some Republicans in the House have stated their objections to the procedures the House is using for its impeachment inquiry. That they have done so in a typically childish manner is not directly relevant to the justice of their whines. The big problem with Republican whining about the procedures the Democrats were using, particularly for confidential hearings, is that they were using rules the Republicans adopted for that purpose. So the objections of House Republicans are also entirely specious.

Except that it bespeaks an unbecoming, ongoing timidity in the Democrats with their handling of impeachment, this resolution is mostly irrelevant. It is not legally necessary. Its apparent purpose is to silence Republican whining. But, as every parent knows, acceding to childish whining only invites more whining. Since Republicans have so far been happy to engage in entirely unjustified whining, there is no reason to think they will stop just because the Democrats pass this resolution.

Pointless, but mostly harmless. We can hope.

Written by

Uppity gay, Buddhist, author, historian.

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