Number 2 in a series (watch this space for more)


  1. Have the Democrats impeached Trump?

The Democrats have not yet impeached Donald Trump. They are in the process of holding investigation hearings to determine if there is sufficient evidence to impeach him. Multiple committees are engaged in such investigations, but Adam Schiff heads the investigation with the most traction.

  1. I thought there were other committees, like the one headed by Jerry Nadler, which were looking into impeachment. What happened to them?

Currently there are six committees looking at various Trump activities that may warrant impeachment: Financial Services, the Judiciary, Intelligence, Foreign Affairs, Oversight and Ways and Means. Nadler heads the Judiciary Committee. 

Those other committees have not dropped their investigations, but they are having difficulty obtaining documents and witnesses due to the decision by the President to exert executive privilege over anything that pertains to what happens in the White House. Several committees have turned their complaints over to the judicial system and are awaiting decisions about compliance.

  1. Why would Congress investigate the President at all?

We have a government based on a system of checks and balances, designed to thwart abuse of power by any one branch. Congress has always had oversight responsibilities, which means they routinely investigate actions by the Executive Branch. When Republicans were in charge of both houses of Congress during the first two years of the Trump Presidency, they essentially ignored oversight responsibility. When the Democrats regained control of the House of Representatives, they reinitiated oversight, much to the consternation of the White House, which has resisted their efforts.

  1. How is impeachment related to the Mueller Report?

The Mueller Report was never an impeachment investigation. It was an investigation by a Special Prosecutor to look into Russia’s involvement in the 2016 elections. Also, because of a Justice Department internal ruling, the report could not recommend charging the President with any crimes.

What that report found was that Russia did interfere in the 2016 election, using false and misleading stories to influence public opinion against Hilary Clinton. In other words, the Russians worked to elect Donald Trump. The report did not find sufficient evidence to conclude that a conspiracy between the Trump and Putin supporters existed, but it did not rule out such a conspiracy.

During the investigation the Mueller team did find multiple instances of obstruction that could rise to the level of impeachable charges, but felt it was not their responsibility to pursue such charges for two reasons: the Justice Department ruling that a President can not be charged and the existence of the impeachment process. In other words, they threw that part of the investigation to Congress.

It is the Mueller Report that initiated impeachment investigations in the Judiciary Committee, which are now on hold as demands for witness testimony and documents make their way through our court system.

  1. Who is Adam Schiff?

Adam Schiff chairs the House of Representatives Intelligence Committee. That committee, along with the Foreign Affairs and Oversight Committees, are looking into the possibility the President abused his power when he withheld funds from Ukraine until its leaders agreed to an investigation of a Trump political opponent.

6. What’s the impeachment investigation in Schiff’s Committee about?

The original Ukraine complaint came from an anonymous whistleblower; that person came into possession of information that he or she believed indicated a grievous abuse of power. He or she then followed procedures set in place for filing such complaints. The Inspector General, who received the whistleblower’s complaint, investigated it and found its claims to “be credible” and “urgent.” He then sent the complaint, in accordance with due process, to the acting director of national intelligence, Joseph Maguire. That’s where things stalled.

Maguire refused to send the complaint to the Intelligence Committee within seven days, although he is required to do so by law. He also failed to respond to an Intelligence Committee’s subpoena for the complaint. Although he did not share the complaint with Congress within the required seven days, he apparently shared it with both the White House and the Justice Department.

Consequently, the whistleblower sought advice on how to advance his complaint to Congress. That led to a public conflict between Adam Schiff’s committee and the National Intelligence Director. Eventually, the whistleblowers’ complaint was made public and the White House released a summary of a July phone call between President Trump and the recently elected leader of Ukraine. That phone call is at the heart of, but not the full scope of, the complaint.

The whistleblower’s charges involved the use of the office of the Presidency for personal gain. The President refused to release congressionally appropriated funds to Ukraine for their defense against Russian aggression until he received a favor in return – an investigation of a potential political opponent, Joe Biden, and his son. In other words, the President conditioned foreign aid on receiving a political favor. Moreover, he asked that favor from a foreign country, which is itself an illegal act.

  1. Why are Democrats investigating Trump in secret?

The current hearings are being held in private, because the Justice Department, which should have undertaken an investigation, did not. Investigations are almost always done privately, partially to ensure that witnesses do not know what other witnesses have said.  Also, it’s not Democrats alone in those closed-door hearings. All members of the three committees overseen by Adam Schiff are involved and those members include 48 Republicans.

Closed-door hearings are common, particularly with investigations by the Intelligence Committee, which often deals with confidential matters. Republicans routinely used them during the Obama Administration, including many of the Republicans now claiming that closed-door sessions are unfair.

Once the preliminary investigation stage is over, there will be public hearings involving witnesses, most of whom will have testified behind closed doors. Also, the transcripts of the closed-door hearings will eventually be released to the public.

  1. Is it true that no Republicans are allowed in the Trump hearings?

That’s absolutely false and Republicans who are complaining about “secret” hearings know it. Republican members of the three committees involved in the hearings can attend, do attend and, we assume, ask questions.

  1. If it’s not true that the hearings are secret, why are the Republicans complaining about it?

At the moment it’s difficult to defend the behavior of the President, particularly in light of the opening statements of witnesses that have been publicly released. It’s commonplace in legal practice to complain about the process, when you can’t really challenge the facts. So, GOP defenders of the President are doing their best to throw dust in the air and pretend “there’s nothing to see here.” They hope, by complaining about the process and labeling it unfair, low information voters and Trump supporters will believe them and ignore the evidence.

  1. How come these witnesses are testifying, when other committees had difficulty securing witnesses and documents?

In some cases these witnesses no longer work for the government; in some cases they do. However, in all cases those individuals whose testimony would be covered by executive privilege have been subpoenaed by the committee and are complying with the subpoena.

  1. What are the likely charges against Trump and on what are they based?

Although down the road Trump might have to confront charges related to campaign finance abuses (he is essentially an unindicted co-conspirator on one of the charges that sent his former attorney Michael Cohen to jail), tax fraud, and obstruction of justice relating to the Mueller Report, he is currently in most danger from charges that he abused the power of his office in an attempt to compromise a potential political opponent. Two tangential charges may flow from that investigation – that he obstructed justice by obstructing investigation into those charges and that he failed to “faithfully” execute the orders of Congress by delaying the release of appropriated funds to Ukraine.

  1. If Trump is impeached by the House and acquitted by the Senate, can he be impeached again?

Yes, there is no Constitutional limit to the number of times a person can be impeached, although it would have to be for other charges. There is, however, a potential political cost to multiple failed impeachments.

  1. What’s likely to happen about this impeachment business in the coming weeks?

The investigation into the whistleblower’s charges and related activities will probably continue behind closed doors for a couple of weeks. There will then be public hearings, somewhat like the Watergate Hearings. They would be televised in real time.

The House has an interest in trying to finish the process before the end of the year. So, unless something surprising is uncovered, watch for public hearings to show up in November related to specific impeachment charges. Watch for a vote in the House on those charges in late November or early December, sending the matter to the Senate.

  1. What’s likely to happen in the Senate?

For Trump to be convicted and removed from office, 2/3s of the Senate must vote to impeach him. That means a significant number of Republicans have to vote with the Democrats and that is, at least at the moment, unlikely to happen.

If it moves to the Senate, here are the things that can happen: Mitch McConnell can stall bringing the matter to the floor of the Senate or bring it to the floor with a vote to dismiss; McConnell can bring the charges to the floor with an expedited trial; or McConnell can bring the charges to the floor for a regular trial. Any trial will be public and televised. Chief Justice Roberts presides. It is at the trial that the President’s attorneys would have an opportunity to bring witnesses and cross-examine the House witnesses.

Stay tuned for Impeachment 103