Parliamentary Flashback: Impeachment Then & Now

CPI Staff — Monday, November 25, 2019

There are not a lot of parliamentary rules for how the House and Senate handle impeachment. But there are a lot of precedents from the previous two modern impeachments of President William Clinton, in 1998, and the impeachment inquiry of President Richard Nixon, in 1974.

From a parliamentary standpoint, in the absence of rules, precedent carries significant weight in establishing how proceedings should take place. The Senate, in particular, operates day-to-day with over a million precedents governing its parliamentary behavior.

Parliamentary bodies rely on past precedent to guide future action. If both parties agreed to something in the past, it sets expectations for future behavior that both parties can follow. 

Both parties are, of course, free to ignore precedents, but in doing so, precedent loses much of its weight and meaning, giving rise instead to a “make it up as you go” environment that is less reliable and arguably less credible.

In approaching the impeachment inquiry of President Donald Trump, House Democrats have departed from past precedent in significant ways, the most important of which limit the president’s ability to review any of the evidence against him, or take part in the proceedings.

Below is an outline of the differences between the 2019 impeachment proceedings, outlined in H.Res.660, which the House passed on October 31, as they compare to the proceedings in 1974 and 1998.

COMMITTEE AUTHORIZATIONS

THEN (1974 & 1998)

  • Inquiry rules authorized and directed the Judiciary Committee to investigate if sufficient grounds exist for impeachment.

NOW (2019)

  • Inquiry directs six committees — led by the House Permanent Select Committee on Intelligence (HPSCI) — to “continue their ongoing investigations” as part of the impeachment inquiry.

COMMITTEE PROCEDURES

THEN

  • The Judiciary Committee adopted its own procedures for conducting the impeachment inquiry that closely mirrored those relied on during the Nixon impeachment inquiry.

NOW

  • The Judiciary Committee most operate pursuant to the procedures imposed by the Chairman of the Rules Committee.
  • The Judiciary Committee may adopt additional procedures as long as they are not inconsistent with the procedures issued by the Rules Committee.

SUBPOENA POWER

THEN

  • Authorized both the Chairman and the Ranking Member of the Judiciary Committee to issue subpoenas, acting jointly or unilaterally.
  • If either the Chairman or Ranking Member declined to act, the other had the right to refer the decision to exercise subpoena authority in a certain circumstance to the full Committee.

NOW

  • Authorizes Chairs of HPSCI and the Judiciary Committee to issue subpoenas.
  • Authorizes the Ranking Members of HPSCI and the Judiciary Committee to issue subpoenas — but only with the permission of the Chairman.
  • Does not allow either Ranking Member to check the authority of the Chairman to issue subpoenas.

PRESIDENT’S COUNSEL’S RIGHT TO PARTICIPATE 

THEN

  • Committee procedures during the Clinton and Nixon impeachments included the ability of the president’s counsel to:
    • Attend all hearings, including those in executive session
    • Question any witness called before the Committee
    • Submit written requests for additional testimony and precise summaries of what he would propose to show
    • Respond to evidence received and testimony presented either orally or in writing, as determined by the Committee

NOW

  • The inquiry resolution bifurcates the impeachment and only allows the president’s counsel to participate in proceedings before the Judiciary Committee, which is secondary to HPSCI. It provides no ability to participate in the ongoing HPSCI investigation.
  • As a result of only being allowed to participate in the Judiciary Committee proceedings, the president’s counsel will only have access to documents transmitted to the Judiciary Committee and not all material obtained in the course of HPSCI’s investigation.