Four Questions About the Public Impeachment Hearings

On Wednesday, the House’s impeachment inquiry will go public when it holds its first hearing on the Ukrainian scandal that will be open to the public. The House Permanent Select Committee on Intelligence, led by Chairman Adam Schiff, D-Calif., will preside over the hearing as the committee hears testimony from US diplomat, Bill Taylor, and Deputy Assistant Secretary of State for European and Eurasian Affairs, George Kent. Former Ukranian Ambassador Marie Yovanovitch is scheduled to testify in a public hearing on Friday.

We have a good idea of what each witness will discuss in these hearings because Democrats have released the transcripts of their closed-door depositions. However, there are four issues on which readers may need further clarity before tomorrow's hearing.

Can Republicans move Jim Jordan, R-Ohio, to the Intelligence Committee just for these hearings?

Late last week, Jordan, the ranking Republican on the House Committee on Oversight and Government Reform, replaced Rep. Rick Crawford, R-Ark., on the Intelligence Committee temporarily. In doing so, Republicans added a forceful and vocal defender of President Trump to the committee. Jordan is also someone who Trump loves to see on camera defending him.

But can Republicans do that? Put differently, can a committee’s Republicans (or Democrats) change their membership on the panel whenever they want? 

The short answer: Yes, with caveats. 

The long answer: each party decides committee assignments at the opening of each Congress. They are usually uncontroversial; the House often adopts committee rosters by unanimous consent. 

Parties can change their committee line-ups during a Congress by adopting a simple resolution. While this usually happens when a member resigns mid-Congress, committee rosters can change for other reasons, as well. However, it requires approval by the full House.

A determined majority can stop prevent the minority from changing its committee members mid-Congress by blocking a simple resolution to do so. That means that House Democrats could have blocked adding Jordan to the Intelligence Committee by objecting to a unanimous consent request or by voting against a simple resolution that would have authorized the change. 

Furthermore, the Intelligence Committee isn’t a standing committee. That means that the Speaker alone makes all appointments rather than the full House. Usually, these appointments are noncontroversial as well, and the majority party gives deference to the minority party in making assignments to the panel. But the Speaker’s approval is nevertheless needed to authorize the minority slate. Consequently, Speaker Pelosi, D-Calif., could have denied Republicans’ request to add Jordan to the Intelligence Committee.

This fact raises the question: Why did Speaker Pelosi approve the move in the first place?

First, the norm that allows each party to choose their line-ups on committees (even the Intelligence Committee) is a strong one. Continued adherence to it benefits both Democrats and Republicans. Both parties want the right to name their rosters on the panel, given the strong likelihood that it could be in the minority soon. Blocking Jordan would have created a new precedent that future majorities would surely use to stack committees even more to their favor. 

Second, Pelosi would have given Republicans a strong process argument that Democrats are not allowing the president’s allies to defend him during the public hearings had she blocked Jordan’s move. In doing so, she would have affirmed Republicans’ long-standing, though misleading, complaint that Democrats have rigged the impeachment inquiry against the president. 

While Democrats would not have broken any rules in blocking Jordan’s move, it would be easier for Republicans to make the case that Democrats are stacking the deck against Trump than it would be for Democrats to explain the nuances of committee assignments to the public. 

In other words, the headache caused by blocking Jordan was not worth sparking a messaging battle that Democrats were unlikely to win.

Do the Republicans have the right to call their witnesses?

No, Republicans do not have the right to call their witnesses. Only a majority of the Intelligence Committee’s members can call witnesses. However, Republicans can request that Democrats support them in calling a specific witness to testify.

Still, Democrats’ deciding to ignore Republican requests to call specific witnesses is not cost-free. Winning the messaging battle over the issue could be tough. Democrats do not want Republicans to derail their case during the hearings by supporting their requests to calling witnesses who will be distracting (i.e., Hunter Biden, or the whistleblower him/herself). 

By denying the Republicans’ requests to call specific witnesses, Democrats open themselves to criticism by rejecting the president his due-process rights. Yet by approving Republican requests to call particular witnesses, Democrats are likely hoping that the witnesses they call will limit their remarks to the Ukrainian matter only and will not taking shift the committee’s hearings away from the story that Democrats want to tell.

How will tomorrow’s impeachment hearing work?

As outlined in the impeachment rules and procedure resolution that the House recently approved, this week’s hearings will be structured a bit differently than other congressional hearings. First, both Chairman Schiff and Ranking Member Devin Nunes, R-Calif., will each have forty-five minutes to question committee witnesses before questioning is extended to other committee members in five-minute blocks (alternating between the two parties).

Second, all committee members, including the chairman and ranking member, can yield their allotted time for questioning to other members (watch for Jordan to get more Republican time). 

Third, committee members can also yield their allotted time to professional staff members and committee counsels who know the material inside and out and may have more background in questioning and cross-examining witnesses. The recently released transcripts suggest that these staffers will conduct most of the interrogation, with Democrats leaning on former federal prosecutor Daniel Goldman, and Republicans relying on Steve Castor, an investigative counsel for the House Committee on Oversight and Government Reform.

What should readers look for?

On the Democratic side, pay attention to how well (or not) the party’s committee members can outline the basics of their case against the president: that Trump abused the powers of his office for personal political gain. Democrats want to present the facts already collected in private depositions from the witnesses that they believe the public will find trustworthy. They think it is a simple story that the public will understand and agree with. Still, the onus is on Democrats to prove the president’s guilt. They must change minds through their presentation of the facts in the case. Any deviation from those facts, or convoluted presentation of those facts, will distract from their intended message and make it harder for Democrats to achieve their goals in the public hearings.

On the Republican side, look for questioning by the party’s committee members that attempt to confuse the simple Democratic message. Republicans will likely continue to target the process and argue that it has stacked against the president. Republicans will also question the witnesses’ qualifications, backgrounds, and connections to Trump. Some Republicans are likely to use their five minutes to make speeches decrying the entire process rather than trying to poke holes in the substance of witnesses’ testimony. Republicans will also try to force witnesses to respond “I do not recall” as many times as possible to highlight the fact that they were not directly involved with the alleged crime and, therefore, cannot speak authoritatively on the subject. Also, look for Republicans to make the case that the president did nothing wrong and, therefore, should not be impeached.