The Phase Two Hearings Begin

[ Posted Wednesday, December 4th, 2019 – 18:31 UTC ]

Today, I watched some more daytime television. Eight-and-a-half hours of it, to be precise. Because it was time once again to view gavel-to-gavel coverage of an event that has only taken place three (or four, if you count Nixon) times in our nation's history: the impeachment of a sitting U.S. president. The House Intelligence Committee wrapped up its work for now by voting on and making public their report on their findings of fact, and by doing so handed the impeachment inquiry off to the House Judiciary Committee. Which held its first public hearing today by opening with four constitutional scholars as witnesses.

Three of these witnesses were invited by the majority Democrats, and one by the minority Republicans. As with the Intelligence Committee hearings, both Democrats and Republicans were given ample time to question these witnesses, beginning with a 45-minute segment largely devoted to questions from staff lawyers and followed by individual 5-minute question segments from each of the 41 members of the committee. Which is, of course, why it took so long to watch.

I don't have specific, blow-by-blow comments to make this time, instead I'd like to share some overall impressions. The first of these is that I understand why Speaker Nancy Pelosi gave the first phase of the inquiry to Adam Schiff's committee rather than Jerrold Nadler's. Republicans tried to rattle both chairmen with every parliamentary trick they could think of, and Schiff dealt with them in much more effective fashion. Perhaps this is too harsh, though, because Schiff had a few moments in his first public hearing where things appeared to be getting away from his control. So perhaps Nadler will likewise improve in subsequent hearings, to be fair. Being chair means you have to wield the gavel well, and some congressmen do so better than others -- especially when the cameras are rolling.

Today's hearing seemed to me to be nothing short of an interview for possible candidates -- on both sides of the aisle -- for the legal teams which will be responsible for either prosecuting or defending President Donald Trump in the upcoming Senate trial. This actually seemed to be true both of the witnesses and of the committee members.

What was kind of strange to see was that there appeared to be two entirely separate hearings happening simultaneously in the same room. Almost without exception, the Democrats posed questions to their own invited witnesses, while the Republicans asked their questions of their single witness. There was not a lot of back-and-forth between the two sides at all, except when incredibly loaded questions were suddenly sprung on "the other guys." The best -- or, in all honesty, the worst -- example of this was when one Republican actually asked for a "show of hands" from the witnesses as to how they all voted in the last presidential election. This is so inappropriate as to be jaw-dropping, since secret ballots are now a revered institution in American life. No American, in pretty much any setting imaginable should be forced to publicly state how they voted in secret, period. But that's about par for the Republican course in the Trumpian era.

The two sides did not agree, of course. The witnesses called by the Democrats stated unequivocally that they thought that what Trump had done was an abuse of power, an obstruction of justice, bribery, and that it all definitely fell within the meaning of "impeachable offenses." The Republican-called witness disagreed, not so much on the meat of the legal reasoning as on process -- his main point was that things were happening too quickly and that the Democrats had not adequately made their factual case. He even admitted, at times, that if it could be proven to his standards that Trump had indeed pressured a foreign government to interfere in our elections by opening an investigation into his political rival, then that would indeed be impeachable -- but that the Democrats simply hadn't yet adequately made this legal case.

He mostly ignored the glaring contradiction the Republicans have when making this case by sidestepping the key issue. Republicans state that nobody has yet shown direct evidence that Trump himself directly gave the orders for the quid pro quo, and they loudly complain about hearsay and secondhand evidence. But this wouldn't be the case if Congress had now heard from those who could give much more firsthand accounts of Trump's words and actions, because Trump has told all his closest advisors to stonewall the House's testimony requests and subpoenas. If we had heard from people like John Bolton, Mick Mulvaney, Rick Perry, and Mike Pompeo, then perhaps we would have a much clearer picture of Trump's involvement -- but Trump has refused to let any of them testify. Likewise, we might also have a better factual record if the White House had obeyed the subpoenas for documents from various parts of the executive branch rather than stonewalling every single one of them.

The Republican witness today pointed out that the Democrats were rushing the process by not allowing the courts to weigh in on the struggle between the legislative and executive branches, as had been done in both the Nixon and Clinton impeachments. He is right that the process has been somewhat abbreviated, but nowhere near as much as he wildly claimed. He stated that this was the fastest impeachment ever, surpassing even that of President Andrew Johnson back in the 1800s. However, before the hearing even concluded, one of the Democrats entered into the record an article which appeared during the hearing in the Washington Post, which debunked this claim:

It has been 71 days since House Speaker Nancy Pelosi (D-Calif.) announced that the House would begin impeachment proceedings. In the case of Bill Clinton, it was 75 days between the House authorizing the impeachment inquiry and actually impeaching Clinton. (This time, the House waited a month before voting on formalizing the inquiry, but depositions began very quickly after Pelosi’s announcement.)

The Johnson example is even worse for Turley's comparison. Johnson was actually impeached just three days after committing the offense for which he was impeached -- the removal of Secretary of War Edwin M. Stanton. Johnson removed Stanton on Feb. 21, 1868; he was impeached on Feb. 24; and then the House decided on the actual impeachment articles. It was sent to the Senate by March 4 -- less than two weeks after the offense for which Johnson was impeached.

In other words, it has been fast, but nowhere near as fast as happened in 1868.

However, this is a point the Republicans are likely to return to over and over again during this phase of hearings. Yes, things are moving quickly. Speaker Pelosi has a good reason for doing so. Democrats could have taken the route of fighting all of the subpoenas in federal courts, but that would have added months to the entire process. Perhaps this would have produced even-more-solid evidence of Trump's wrongdoings, but then again perhaps it wouldn't have. Even if Trump's absurd claim of "blanket immunity" were to be struck down by the Supreme Court, each of his top aides could simply have appeared before the committees and then refused to answer any questions, either by invoking very specific executive privilege or even the Fifth Amendment protection against self-incrimination on the witness stand. So waiting for the courts might not have changed anything, in the end. This is a gamble Pelosi is taking, which I mostly say because it sure seems like Bolton has a story he'd like to tell in public.

But Pelosi has to take into account the politics of the situation as well. It now seems pretty certain that nowhere near enough Senate Republicans are ever going to be convinced that their Dear Leader Trump did anything wrong, so Trump is almost certainly not going to actually be removed from office. Given that, there is no real reason to delay. Holding a Senate trial next spring or summer likely isn't going to move the needle that much, but what it would do is absolutely dominate the 2020 presidential campaign. As strange as it sounds, in today's political world, a Senate trial in January will quite likely be largely forgotten come next November. Or, at the very least, it's not going to be the top issue on the minds of many voters on either side of the political divide. We'll all have moved on by then, which is precisely what Pelosi is aiming for now by hurrying things along.

Some Democrats in Congress have wanted Trump gone from the beginning, of course. Others have been more cautious in calling for impeachment (Pelosi among them). Once the Ukraine scandal broke, Pelosi felt duty-bound to begin an impeachment inquiry. Her oath of office demands it, to put it another way, when such blatant abuse of power is made public. But, knowing that the Senate is likely not going to agree, she decided to get the whole process over with as soon as possible so that it will have only minimal effect on the 2020 presidential election. That's a political calculation, but then again that's part of Pelosi's job.

Republicans are going to argue this point throughout this phase of impeachment, that much seems certain after today. But they need to sharpen their message a bit, since the comparison to Johnson was so easily debunked. The ranking GOP member on the committee tried to introduce the phrase "the clock and the calendar" to make this point, but this also largely fell flat. It's kind of redundant, after all, to say Democrats are rushing both the clock and the calendar, and there was no real explanation for including "the clock" in the phrase. The political implications of the calendar are pretty plain to see, but what does what time of day it currently happens to be have to do with that, really?

Today was really nothing more than both sides talking past one another, once again. There were some amusing moments -- I would be willing to bet that the word "goldendoodle" has likely never been uttered in a congressional hearing before -- but very few fireworks. The constitutional scholars that weren't invited to testify (and had to make do with being experts who analyzed the proceedings on television) all unanimously wanted to see a lot more actual legal debate. They would have loved to see Democrats pressing the Republican witness on his views in detailed fashion, and vice-versa. But this was not to be.

As of now, it's unclear what is going to happen next in the Judiciary Committee. How many more hearings will they call, and which witnesses will appear? The Republicans will likely be allowed a few witnesses, but also very likely this will not include the ones they are itching to grill most: Joe Biden, Hunter Biden, and the whistleblower. They may appear later in the process, though -- remember, the Democrats are setting all the rules now, but when this moves to the Senate the GOP will be in control of the process. The only thing which seems certain at this point is that today won't be the last day I'll spend watching seemingly-endless testimony starting at (for me, on the West Coast) an incredibly early hour of the day.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


27 Comments on “The Phase Two Hearings Begin”

  1. [1] 
    Elizabeth Miller wrote:

    So, where has Noah Feldman been hiding? Ahem.

    I watched it all, too … :)

  2. [2] 
    Elizabeth Miller wrote:

    I think Turley's best point and one that Democrats should act upon was the idea that more time should be spent on securing witnesses who are refusing to testify and on taking this fight all the way through the courts … damn the torpedoes, full speed ahead!, in other words.

    Who cares how long it takes, especially if it continues through the next election cycle?

  3. [3] 
    Balthasar wrote:

    Liz - Turley's argument falls apart once you consider just how 'ripe' the case is. There is little more for fact-finders to find. Surely it goes into the White House, and Bolton's testimony could help, but Trump and Mulvaney have surely said enough to put on the record that they're firmly in the pro-quid pro quo group. We could find out what Guiliani was working on.

    But the case is ready. No more needs to be done. Send it to the Senate, let 'em vote, and lets start cutting those TV commercials for next year already!

  4. [4] 
    Elizabeth Miller wrote:


    You and I and the other three witnesses today along with most Democrats in Congress and about half of American voters believe that the case is quite clear enough as to what the president has done and that it is impeachable behavior.

    But, the case is not "ripe" enough to persuade any, if not all, Republicans in the Senate to vote against the president. And, at the moment, it's not enough to move the needle on public support for impeachment and removal. Which is only at 50%, give or take.

    It's going to take more effort on the part of the House committees involved in this to secure the testimony of people like Bolton and the guy that left OMB over the Ukraine aid issue, for two examples.

    Nothing good will come from a partisan impeachment vote in the House followed by the same kind of vote for acquittal in the Senate.

    And, then what?

    I think you're going to need more than TV ads.

  5. [5] 
    Balthasar wrote:


    Well, we've got what we've got. Our odd of getting any Republicans seems very slim, regardless of what we say.

    And we could wait for months for Bolton to be unbound by the courts. I'd say the ball is in his court - if he wants to speak, he has the floor.

    Otherwise, we'll proceed. I'd predict the impeachment vote by the full house by Christmas, maybe even Christmas Eve.

    Then it's McConnell's baby. He can assemble all of the Republican witnesses, but why? He'd rather have a short court and a down vote in time for Trump's State of the Union address.

    Democrats will say, "see that? That's why we need him out, cause it's the only way to stop him".

    And they'd be right.

  6. [6] 
    TheStig wrote:


    Are you taking regular walking breaks? Binge TV is not kind to the human body!

  7. [7] 
    John M wrote:

    [4] Elizabeth Miller

    "But, the case is not "ripe" enough to persuade any, if not all, Republicans in the Senate to vote against the president. And, at the moment, it's not enough to move the needle on public support for impeachment and removal. Which is only at 50%, give or take."

    Please keep in mind one thing:

    That 50 percent support for impeachment AND removal is historically extraordinary!

    In the Spring of 1974, only 44 percent thought Nixon should be removed from office.

    It wasn't until early August, following the House Judiciary Committee’s recommendation in July that Nixon be impeached and the Supreme Court’s decision that he surrender his audio tapes, did a clear majority – 57% – come to the view that the president should be removed from office.

  8. [8] 
    Elizabeth Miller wrote:


    Well, this isn't 1974, in more ways than one.

    I'll be surprised if support for impeachment/removal rises very far above 50%, pointing up a very big problem that political leaders in your country must deal with finally instead of ignoring to the peril of the republic.

  9. [9] 
    nypoet22 wrote:

    Just what i was going to say. There's really no apples to apples comparison of the numbers, because we're more tribal today than at any time since the civil war.

  10. [10] 
    Elizabeth Miller wrote:

    Indeed. I'm wondering just how much more tribal it can become. Very scary thought for those of us out in the world who still have hope with regard to America's global leadership role and the good that it can do.

    Speaking of which, I for one am looking forward to hearing Senator Biden testify before the Senate Judiciary Committee about his role in working with Ukrainian leaders to move their country forward to a better place. I simply can't wait!

  11. [11] 
    C. R. Stucki wrote:

    After three solid years ofimpeachment circus, with absolutely zero chance of it ever amounting to anything, it's getting pretty hard to avoid becoming jaded/cynical about what's going on in DC.

  12. [12] 
    nypoet22 wrote:

    No doubt. Fox world has itself convinced that Donald didn't do what all the evidence says he did, but Joe biden did do what all the evidence says he didn't. No wonder people are confused.

  13. [13] 
    C. R. Stucki wrote:


    I wouldn't know about "Fox world", but I really doubt that even Donald's supporters (of which I am NOT one, believe it or not) really think he "didn't do what all the evidence says he did".

    I think it's far more a case of "Of course he did it, all politicians do it, and while maybe it ain't exactly a shining example of moral rectitude, it also ain't illegal"!!

  14. [14] 
    Elizabeth Miller wrote:

    It's just unconstitutional, if the highest law of the land matters anymore in America ...

  15. [15] 
    Elizabeth Miller wrote:


    No doubt. Fox world has itself convinced that Donald didn't do what all the evidence says he did, but Joe Biden did do what all the evidence says he didn't. No wonder people are confused.

    Very well put!

  16. [16] 
    C. R. Stucki wrote:

    Liz [15]

    See my [13]

  17. [17] 
    Balthasar wrote:

    while maybe it ain't exactly a shining example of moral rectitude, it also ain't illegal"!

    If Obama did it, it's illegal. Republicants don't fool me. They're whistling past the graveyard. They know just exactly what Trump did, and are looking the other way, because it's Trump.

    Once he's gone, the far right will canonize him, and the rest will just move on..

  18. [18] 
    nypoet22 wrote:


    how about, "many politicians may do it, but donald was dumb enough to get caught doing it in public, so if he's impeached for it, that's his own damn fault." does that idea register?

  19. [19] 
    C. R. Stucki wrote:


    Yeah, I can agree with that, but it's always important to remember what "it" is.

    Trump's 'original sin', so to speak, was winning an election that everybody told the Dems that it was inconceivable for him to win, or perhaps inconceivable for Hillary to lose, same thing.

    Sure, he's incompetent, sure he's an all-round asshold of a human being, but all that stuff is and always will be, peripheral to that 'sin'.

  20. [20] 
    C. R. Stucki wrote:

    Oops, make that "asshold" in [19] read 'asshole', obviously.

  21. [21] 
    C. R. Stucki wrote:

    Liz [14]

    Sorry, the decision of constitutionality is not yours to make. If the majority of the Senate says it's unconstitutional/illegal, and ultimately perhaps if the Supremes say it's unconstitutional/llegal, THEN it's unconstitutional/illegal.

    As of now, it's NOT "unconstitutional"!

  22. [22] 
    nypoet22 wrote:


    i think you're wrong about everything stemming from hillary. that, and merrick garland, and brett kavanaugh, certainly motivated some dems to take their oversight role to an extreme, but nancy pelosi and the dem leadership really didn't want to do it. they thought it would be futile, as it most likely will be. but donald's actions in ukraine were so brazen and public, they had no choice.


  23. [23] 
    C. R. Stucki wrote:


    Yeah, "brazen, publid", stupid, foolish, incompetent, idiotic, etc., but likely not unconstitutional or illegal.

  24. [24] 
    LeaningBlue wrote:

    [19] Trump's 'original sin', so to speak, was winning an election that everybody told the Dems that it was inconceivable for him to win, or perhaps inconceivable for Hillary to lose, same thing.

    Maybe you should reflect on the following question:

    Why is it that candidate/President Trump's senior inner circle entailed a number beyond coincidence of people that are now known to be agents, assets, or fellow travelers of Putin-based organized crime? If you need a start to that list, here are three:

    Paul Manafort, campaign chairman, previously backwater lobbyist/fixer in the mold of Duke in Doonsbury, and well connected to Putin and state intellegence through associates and private business dealings.

    Michael Flynn, Nat. Sec. Adviser, in spite of warnings from, among others, President Obama and Acting AG Yates.

    Rex Tillertson, Sec. of State, in spite of DJT not knowing him, but as Exxon CEO, negotiated a half-trillion USD oil deal with Putin.

    Yes, maybe it's as simple as there has been three years of persecution of the President because everyone hates him because he beat Hillary.

    Or, just maybe, it has been and continues to be part of the US government's largest counter-intelligence investigation in history.

    In other words, it could be that Donald Trump is a victim, or, alternatively, there are reasons why all roads do lead to Putin.

  25. [25] 
    nypoet22 wrote:

    abuse of power isn't illegal or unconstitutional, but it's certainly impeachable.

  26. [26] 
    Kick wrote:


    nancy pelosi and the dem leadership really didn't want to do it.


    they thought it would be futile, as it most likely will be. but donald's actions in ukraine were so brazen and public, they had no choice.

    Again, exactly.

    I did not think Trump would be impeached because I believed Nancy Pelosi wouldn't allow it; however, Trump left her no choice. This impeachment has absolutely nothing whatsoever to do with Donald Trump winning the election in 2016 via the Electoral College and everything to do with Trump and his henchmen using taxpayers' dollars to force one of our allies to announce an investigation into one of his chief political rivals in the 2020 election. #SSDD

    Balthasar is also dead on accurate in his assessments. You have Perp Trump admitting to his actions on live television... roll tape... and requesting that China also investigate Joe Biden, and nothing John Bolton nor anyone else says after being forced to testify would make the case any stronger or stop the GOP gaslighting of Americans.

    Are there more shoes to drop in this saga? You bet your Christmas balls there are. Rick Perry didn't resign immediately for no reason, you know, but those shoes can drop after Trump is impeached for what he's already confessed and doubled down on... and, like Balthy said... let's get those cameras rolling, filming those commercials. The Grievance Old Party has some gaslighting to do, and their job of snowing the rubes isn't going to get any easier.

    Meanwhile: If Joe Biden went on national television tomorrow and said: "Vladimir Putin, if you're listening, I will release sanctions on Russia if you'll do me a favor of proffering the kompromat your country possesses on Donald Trump and his White House Senior Advisor and daughter Ivana Marie Trump also known as Ivanka Trump and Yael Kushner and Trump's son-in-law and White House Senior Advisor Jared Kushner"... do you think the GOP dipshits, talking heads, and gullible minions would just shrug that off as "nothing to see here"? I'm guessing "not."

  27. [27] 
    Kick wrote:


    Yeah, "brazen, publid", stupid, foolish, incompetent, idiotic, etc., but likely not unconstitutional or illegal.

    It is still illegal to request foreign interference into an election in the United States no matter how many times the old men in Podunk opine that it "likely" isn't. Congress made it illegal so it's therefore illegal... a not altogether difficult concept to grasp.

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