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October 21st, 2019

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Decoding the Dems: Investigation is the new impeachment

Philip Bump

By Philip Bump The Washington Post

Published April 24, 2019

Decoding the Dems: Investigation is the new impeachment
Democrats like to point out that former president Barack Obama was the subject of repeated, ongoing investigations into the attacks in Benghazi, Libya, in 2012. Whenever President Donald Trump has complained about the investigations he faces, including, at times, suggesting that they were somehow without precedent, the numerous probes of Benghazi are offered as a counterexample.

Those investigations, including the Select Committee on Benghazi that was formed in late December, were initiated in part out of concern about how the attacks had unfolded and in an effort to determine how similar events could be prevented. But the Republican members of Congress who launched them also understood the political value of holding Obama's feet to the fire - as well as Obama's first secretary of state, Hillary Clinton.

"Everybody thought Hillary Clinton was unbeatable," Rep. Kevin McCarthy, R-Calif., told Sean Hannity in October 2015, about a year before Clinton would appear as the Democratic nominee on the 2016 presidential ballot. "But we put together a Benghazi special committee, a select committee. What are her numbers today? Her numbers are dropping."

McCarthy faced understandable political blowback for the comment, but, in broad strokes, his comment wasn't wrong. The Republicans formed a committee aimed in part at keeping pressure on Clinton and they succeeded in keeping pressure on her.

In fact, they succeeded far better than they might have expected. Over the course of the select committee's investigation, it determined that Clinton had used a private email address and private email server to conduct some of her work at the State Department. That revelation led to the launch of an FBI investigation and, shortly before the election, an announcement from FBI Director James Comey that newly discovered messages meant that the investigation wasn't closed.

The Benghazi investigation, in other words, may have cost Clinton the presidency. And you know who's probably aware of that? House Speaker Nancy Pelosi.

In the wake of the release of the redacted report summarizing the conclusions made by special counsel Robert Mueller, there's been a renewed focus on the question of impeachment among Democrats. There's an undeniable allure to it for the party's rank-and-file: The pageantry of the trial on the floor of the Senate, the investigation into what's alleged, a vote that could result in President Trump being removed from office - if, you know, a lot of Republicans think he should be.

But Pelosi's not interested in going down that path.

If impeachment "is what we need to do to honor our responsibility to the Constitution - if that's the place the facts take us, that's the place we have to go," Pelosi said in a conference call Monday night.

She referred to past comments she'd made on the subject.

"I wish you would just read my letter because it, I think succinctly, presents some of the reasons, I think - whether it's articles of impeachment or investigations, it's the same obtaining of facts," she said. "We don't have to go to articles of impeachment to obtain the facts, the presentation of facts."

That's a pointed comment. For the same reason that impeachment appeals to Democrats, it's anathema to Republicans. Why engage in that political fight, Pelosi seems to be saying, when Democrats could instead push on investigations that might reveal the same information, do the same political damage to Trump and maintain a sense of dispassion about the whole thing - while keeping the door to impeachment open?

Josh Chafetz, a law professor at Cornell University who studies constitutional law told The Washington Post by email that House committees are empowered to broadly explore Trump, his administration and his past behavior.

"The House's authority to investigate requires that it be pursuing some legitimate congressional purpose. But given how broad congressional power is, almost any subject of investigation will wind up being permissible," he wrote. "An investigation conducted on the topics of the Mueller Report could be justified under the House's power to impeach, but it could also be justified under the power to legislate - for instance, maybe the House is considering changing the statutory definition of obstruction of justice."

Trump and his team are clearly aware that the House investigations are a significant threat. There have already been clear efforts to throw up roadblocks to those probes, including ignoring subpoenas and a lawsuit filed against House Democrats.

Trying to keep Trump from using Democratic actions to rile up his base will never be an effective strategy for his opponents, obviously. But it's definitely going to be somewhat less compelling to his base for Trump to claim that Democrats are unfairly investigating him - as he has - than it is to claim that Democrats are trying to remove him from office directly through impeachment.

Driving Pelosi's thinking here is clearly that the 2020 elections are only about 18 months away. The Benghazi committee discovered Clinton's email server a little before now in the 2016 election, and it drove a lot - too much, many would argue - of the ensuing coverage. The various House investigations that are just ginning up could result in any number of revelations that might similarly bear political fruit.

Why impeach, in other words, when an investigation could swing the 2020 election? Why try to convince a dozen Republican senators to boot Trump from office when you could take the much easier path of convincing American voters to do so?

Setting aside legitimate questions of how the system of checks-and-balances is meant to work, the focus makes political sense, as Pelosi clearly understands. She also understands that it's not helpful to make comments like McCarthy's about the political motivations for those investigations - a comment that he described as being "not helpful" in his aborted 2015 bid to himself become speaker.

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