Even before his ill-advised mockery of President Trump’s request for “a favor” from new Ukrainian leader Volodymyr Zelensky, House Intelligence Committee Chairman Adam B. Schiff (D-Burbank) was seen by Republicans as blinded by bias against Trump. And now that Schiff is leading the initial phase of the House impeachment inquiry, he has become Exhibit A in the GOP argument that the whole thing is rigged.
As if to confirm those suspicions, Schiff’s committee has turned a portion of its website into a glossy, political-campaign-style presentation of the case against Trump, titled: “Read for yourself: President Trump’s Abuse of Power.” It’s accessible from the main page of the Intelligence Committee’s website through a prominent link bearing the innocuous-sounding title, “Impeachment Inquiry.”
“The House of Representatives launched an impeachment inquiry to ascertain the full extent of the president’s misconduct, and thanks to testimony from dedicated, nonpartisan public servants, we now have a much fuller picture of how President Trump abused the State Department and other levers of government for his own political gain,” the page states in its introduction. “Pursuant to House Resolution 660, we are now releasing transcripts of these witness interviews so every American can see the facts and decide for themselves: is this conduct acceptable?”
The question featured in boldface on the website may sound neutral, but the page is anything but. Instead, it highlights excerpts from selected witnesses to paint a damning case against Trump.
This is precisely why Republicans focus at least as much on the process of the inquiry as the substance. But it’s important to put what Schiff is doing in historical context, not because he’s breaking with precedent but because he’s adapting past practice to the current legal reality.
President Nixon’s “Saturday Night Massacre” — his attempt to shut down the Watergate investigation in October 1973 by having the Justice Department fire special prosecutor Archibald Cox, which prompted the top two DOJ officials to resign rather than carry out Nixon’s order — helped persuade Congress to enact a law in 1978 creating a judicially appointed independent counsel to investigate allegations of presidential wrongdoing. Independent counsel Lawrence Walsh subsequently probed the Iran-Contra arms-for-hostages scandal during the Reagan administration, and then independent counsel Kenneth W. Starr dug into the Whitewater land-fraud allegations against President Clinton.
Starr’s Whitewater investigation covered several years and produced nothing, but with the help of attorneys for Paula Jones, who’d sued Clinton for sexual harassment, Starr forced Clinton in August 1998 to testify before a grand jury about an alleged White House affair with an intern named Monica Lewinsky. Clinton falsely denied having “sexual relations” with her, and within a few months, the House impeached him in a lame-duck session. The Senate declined to convict him the following year.
Congressional Republicans hated the Walsh investigation. Congressional Democrats hated the Starr investigation. As a result, Congress let the independent counsel statute lapse in 1999. Since then, the primary responsibility for investigating the president has rested with the Justice Department. Most recently, a top DOJ official appointed special counsel Robert S. Mueller III to look into possible Russian collusion with the 2016 Trump campaign after Trump fired FBI Director James B. Comey, who had been leading the counterintelligence probe.
The current attorney general, Bill Barr, has shown no inclination to investigate the allegations that Trump leaned on Ukrainian officials to conduct investigations that would benefit Trump politically; in fact, the DOJ has already decreed that Trump’s request in the July 25 phone call with Zelensky did not violate federal campaign-finance laws against seeking donations from foreign sources.
So in the absence of an independent counsel or a special counsel, Schiff has put himself in the role of the person assembling the case against Trump. That’s why the depositions were conducted in private sessions, as grand jury testimony is done, making it hard for witnesses to coordinate their stories (hello, Gordon Sondland!). That’s also why Trump isn’t being given the chance to participate yet, although Republicans on the committees are certainly advancing the narratives Trump’s lawyers would be advancing to defend the president.
The public hearings that begin this week will give Republicans more of the openness they sought, but Schiff is likely to remain in Kenneth W. Starr mode. He’s leading a three-committee effort to gather evidence about Trump’s machinations on Ukraine; it will be up to the House Judiciary Committee to open the process to Trump’s lawyers, who will challenge the evidence and try to put it into a very different context. The Judiciary Committee will then decide whether to recommend articles of impeachment for the House to vote on.
Notably, Starr laid out 11 specific grounds for impeaching Clinton based on his conduct with Lewinsky and his efforts afterward to cover it up. If Starr’s investigation of that episode is any guide, one can expect the report Schiff produces to be similarly pointed and conclusory. It’s safe to bet too that Republicans with situational amnesia about Kenneth W. Starr will complain that the process was irredeemably tainted from the start.