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Sat Nov 2, 2019, 12:49 PM

As impeachment enters a new phase, keep an eye on endangered Republicans

By Ruth Marcus

Deputy editorial page editor

President Trump and his Republican allies can’t seem to decide whether they want his defense to be based on substance — He did nothing wrong! It was a perfect call! — or procedure — Democrats were out to get him from the start! It’s a Soviet-style inquisition! That confusion is no surprise: Both arguments are unconvincing, and Republicans will increasingly have to figure out how to deal with that unpleasant reality.

It’s a rule of Washington that if you’re arguing over process, you’re losing. That holds especially true here, because the procedural laments are not only procedural, they’re bogus. Republicans contend that the new House rules to govern the inquiry deny Trump basic elements of due process and that the previous handling of the investigation was so flawed it taints any proceedings going forward.

“If you were in the legal term, it’d be the fruit from the poisonous tree,” said House Minority Leader Kevin McCarthy (R-Calif.). That’s ridiculous. The House conducted its initial proceedings in secret — just like the Benghazi committee — but Republican lawmakers from the relevant committees were allowed to attend and ask questions. Administration lawyers were not present — following the example set by House Republicans, who, when they were in the majority, barred government lawyers from attending such depositions. Even assuming some imaginary unfairness, take McCarthy’s argument to its logical conclusion: Congress should ignore video of Trump shooting someone on Fifth Avenue because it was improperly obtained?

It would be more concerning if the rules governing the next phase of the proceedings were unfair. But they are effectively identical to the procedures employed in the Nixon and Clinton impeachments, letting Republicans subpoena witnesses and documents, subject to the approval of the majority. When the House Judiciary Committee takes up the matter, Trump’s own lawyers will be allowed to call and cross-examine witnesses. This right may be suspended if Trump “unlawfully refuse[s]” to produce documents or let witnesses testify — a reasonable threat given the administration’s refusal to cooperate with what the White House described as “this illegitimate impeachment proceeding.”


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