IMPEACHMENT: A Devastating Dissent
The most striking thing about the impeachment report of the House Judiciary Committee is its upside-down nature. The report is a 650-page doorstop that is designed to accompany the impeachment resolution that the House will put to a vote on Wednesday. Yet the part of the report that is likely — not certain but likely — to prevail in the Senate is not the vast verbiage from the majority. Rather, it’s the part called “dissenting views.”
Normally one would expect “dissenting views” to be a kind of historical footnote. Grand juries, to the function of which the Judiciary Committee role in an impeachment is sometimes likened, don’t even issue “dissenting views.” Grand juries either hand up a true bill, meaning an indictment, or not. In this case, though, if and when the impeachment report goes to the Senate, the dissenting views could well prove dispositive.
They certainly strike us as a devastating reprise. The dissenters — the document is signed by Congressman Doug Collins, the Judiciary Committee’s ranking Republican — start with the fact that the impeachment of President Trump arose in a different way from the impeachment efforts against Presidents Andrew Johnson, Nixon, and Clinton. In those cases, the facts had been agreed on by the time impeachment articles were considered.
In the Clinton case, an independent prosecutor had labored for years to build the case. That work should have been done in the House, we’ve always felt, but there it is. The impeachment of Mr. Trump would, if it happens Wednesday, be the first time the House decided to, as the dissenters put it, “pursue impeachment first and build a case second.” It was done “in haste to meet a self-imposed December deadline.”
The dissenters complain of being sidelined during the hearings and the run-up to them. They fault Judiciary’s majority for failing to invite fact witnesses of any kind during the committee’s investigation and for relying instead on the work of the Intelligence Committee. (In the Senate, ironically, the Democratic minority is now complaining that the facts should now be adduced in the upper chamber.)
Impeachment, the dissenters point out, is warranted only for conduct that constitutes treason, bribery, or other high crimes and misdemeanors. Yet the impeachment articles the House will vote on “do not include any of those specific offenses.” Rather, Article One centers on an “amorphous charge” of power abuse precisely, the dissenters allege, because majority members “lack the evidence to prove bribery, extortion, or any other crimes.”
The dissenters’ reprise of the particulars focuses on statements by President Zelensky that he was unaware of any quid pro quo involving American security assistance. One of these was made as recently as December 2. Dissenters also mark the denial of an aide to Mr. Zelensky that the aide discussed with Ambassador Sondland a quid pro quo that the dissenters reckon is the “linchpin of the Majority’s factual case.”
In respect of the second article of impeachment, the dissenters contend that obstruction of Congress “does not constitute a high crime or high misdemeanor while further recourse is available.” They focus on the failure of Congress to pursue remedies — directly and through the courts — to enforce the inter-branch disputes with the White House over the production of evidence and witnesses. They deem it neglect.
These, of course, are just the broad outlines of a devastating dissent. It reminds us of Justice Antonin Scalia’s dissent from the Supreme Court majority that okayed, in Morrison v. Olson, an independent counsel. It was one of the few cases in history where the dissent became, in effect, the precedent. If the President survives a trial in the Senate, the GOP dissent to the impeachment report will be studied for generations.
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