Why Kevin McCarthy’s “Sham” Talk is a Lie

Here are the actual Rules of Impeachment

House Minority Leader Kevin McCarthy, R-Bakersfield, CA (Photo: Alex Wong/Getty Images)

House Minority Leader Kevin McCarthy is a familiar face this fall as he makes the rounds of media polititalk shows to call out impeachment proceedings as a Democrat “sham”. He also tweets frequently, and this is currently his pinned tweet:

McCarthy: Putin Pays, No Gays

First, a brief snapshot of Mr. McCarthy. A House Republican from Bakersfield, California, McCarthy once signed a letter from the Family Research Council pledging his agreement that gay candidates should be barred from public office, and said that he will never support one. He also engages in frequent podcasts, radio interviews and appearances with FRC’s infamous founder Tony Perkins. (The FRC has been declared a hate group; Perkins bought a robo-call list from KKK leader David Duke.)

McCarthy voted for SJ Res 34, which allowed internet providers to sell their customers’ data information. He voted to repeal Dodd-Frank, and he voted against aid for Hurricane Harvey.

He attacked Elizabeth Warren for claiming Native American heritage, while his in-laws were in deep, deep legal trouble for signing up and actually securing millions of dollars in government loans for minority groups — by claiming Cherokee heritage they do not have.

McCarthy is the one who was recorded saying he believed that Putin pays Trump, and then laughing. He frequently boosts conspiracy theories and is an avid supporter of Steve Bannon and Breitbart.

McCarthy ShamTalk Conflicts With Actual Rules

McCarthy’s shamtalk is a regular feature on his Twitter account and in public appearances, but how does it square with the actual rules, and with the history of Nixon and Clinton impeachments?

Basic Impeachment Stuff

Here are the actual, current House Rules of Procedure (pdf), adopted by the 115th Congress. The entire document is just over 1,000 pages long, but the section on impeachment is only 18 pages. So, not that difficult to follow, even for a lay reader.

The misconduct section is basically one short paragraph. Seems pretty clear.

These rules for impeachment apply to a wide variety of government employees — senators, judges, government officials, and White House personnel, including the president. Almost anything can officially spark an impeachment inquiry or proceeding; previous impeachments have been launched based on attorney findings (Nixon) and even citizen petitions (Missouri Judge James Peck).

On aspects of confidentiality, boom.

In the House rules, there is no requirement made of the Judiciary Committee, or any groups it appoints as sub-committees, to share information with the public or the House at large. (There are frequent references throughout the document to Deschler’s Precedents, which can be found here. Basically, that document tells you in detail how it’s been done before.)

In both the Nixon and Clinton cases, a proposal to impeach was produced fairly quickly. Nixon’s arose from criminal proceedings, so … done deal. Clinton’s impeachment came as a recommendation from Ken Starr’s team, who had already done the legal footwork. In Trump’s case, three committees are considering a range of issues from campaign fraud to abuse of power. These committees are having to do all the initial work of interviewing witnesses, acquiring documents and issuing subpoenas — which in the Nixon and Clinton impeachments had previously been done by legal teams.

But the fact that this situation is slightly different does not change the actual House rules.

Precedents support this process. As explained in this easy-reader article on the process:

Under all precedents, the Judiciary Committee will debate and vote upon each proposed article of impeachment, and if any are approved (and of course there would be no committee vote unless success was assured), they are reported to the full House for debate and a conclusive vote for impeachment.

Typically, the party pushing impeachment will favor a tight set of resolutions that revolve around a clear pattern of malfeasance, and that might even attract members of the president’s party (or at least some of his supporters).

McCarthy and crew are trying to force the Democrats to open committee proceedings to Congress and the public before an actual proposal to impeach has been approved and drafted by the Judicial Committee. There is no foundation that I could find for this in the House Rules.

Since 1912, the House has typically considered an impeachment resolution together with the articles of impeachment. Meaning: the Judiciary Committee usually does the prep work first, and then submits a draft folio to the House — which is exactly what they have been doing in 2019.

What does that mean?

It means that there is no “impeachment process” underway. No “effort to impeach”. This is all vague, inflammatory language used by critics and the media to create excitement, apprehension, and obfuscation.

What really exists at the moment are three separate inquiry threads into possible malfeasance by one or more public officials.

When Does the Clock Start Ticking?

If the committees decide, and the Judiciary Committee agrees that evidence warrants it, Judiciary will draft a resolution and articles and present those as a package to the House for debate and votes. That’s when the clock on impeachment really starts ticking.

That is the precedent, through over 60 instances of impeachment proceedings of various officials.

Why Should Trump Get Special Treatment?

According to McCarthy and friends, they should be:

• allowed into committee meetings of which they are not member
• allowed access to protected whistleblower reports and identities
• allowed to have the president’s personal and government lawyers sit in on committee hearings and proceedings
• allowed to question witnesses and review documents at will, regardless of time or place

U.S. Rep. Michael McCaul of Austin, the top-ranked Republican on the House Foreign Affairs Committee, complained recently in a letter to his panel’s chairman:

But if you break this statement down into its basics, here’s what we have. Forty-five years means he’s referring to Nixon/Clinton. He doesn’t mention the total number of impeachments in that time. Although McCaul is implying otherwise, procedures have apparently conformed and tracked with precedents — Judiciary decides, then lobs impeachment to the House. No one has complained until now. He also demands “consensus” and says it “should be voted on … at the outset” of an inquiry. Yeah … no. Notice he doesn’t say “must be” and he doesn’t quote a rule or actual precedent.

McCaul is taking a GOP wish list and trying to make it sound legal.

Where was McCarthy’s anger, where was McCaul’s outrage for other impeachment targets like Ricardo Rossello, Robin Davis, Allen Loughry, Beth Walker, and Margaret Workman — all of whom were impeached during 2018–2019? Did they receive any of these special dispensations that McCaul and McCarthy are demanding for Trump?

Why is McCarthy Still Mad After Pelosi Announcement?

Nancy Pelosi must juggle conflicting pressures. A slow walk would benefit Democrats, but her own caucus is impatient for action. (Photo: Damon Winter / NYT via Redux file)

Speaker of the House Nancy Pelosi presented a formal resolution this week that authorizes the Permanent Select Committee on Intelligence, the Judiciary Committee, and other relevant committees to hold open hearings. The resolution, which will be voted on by the House tomorrow, lays out the rules. The 8-page document also grants the senior Minority member of each committee privileges to call witnesses, request documents and issue subpoenas.

But basically, what the document says is: we will continue to hold committee-only hearings. They may or may not be public. You can watch, but you can’t participate. It is not a formal launch of impeachment.

This is not what McCarthy and the Republicans really wanted, and this cautious step toward the transparency they publicly demanded has only infuriated them further.

Republicans Threatened By Slow Pace

Most people think Republicans want to slow walk and delay the impeachment process, and assume that Democrats would like to pick up the pace and get on with it.

But when we look at the actions, rather than the words of the principal players, the opposite appears to be true. Democrats have slowly and cautiously been collecting testimony and documents. Witness statements and major developments have been released to the press, but there hasn’t been a whole lot of pontificating, leaking or general stirring of the pot.

McCarthy and other Republicans, on the other hand, are now fussing over process and making loud demands. They’re extremely vague on details (such as which precedents and rules they are referring to) and they rely almost entirely on emotional rhetoric.

Why? Because a long, slow barbecue will be deadly for the GOP 2020 campaigns.

Republicans want a fast, hot grill, so naturally they’re more upset than ever that Pelosi is not complying with their fervent demands.

1. They want impeachment to proceed now, before they lose Republican House and Senate support for Trump.
2. They hope a rushed process will force the committees to make legal mistakes.
3. If an impeachment vote is taken and rejected by the Senate by late winter or spring, they’ll have the rest of spring, summer, and early fall to burnish GOP contenders and ridicule Democrats.
4. If impeachment stretches into late spring/early summer, they will hemorrhage support and be forced to Hail Mary before voting season.
5. They want impeachment to happen during the early winter holidays, when viewers are distracted by media holiday blitzes, NFL football, and personal demands on time. The last thing they want is for a freshly launched impeachment process to be January-February reality TV.
6. Thanksgiving week is the deadline for another spending bill. Earlier this fall, Trump signed a stop-gap bill, punting his standoff over border wall funding until November 21st. There is no doubt in anyone’s mind that he will initiate another government shutdown — his fourth in one term, which will be four of a total of 22 in the history of our government. He also has, by far, the longest shutdown on record. If impeachment formally begins at the same time as the government shutdown, Republicans can deflect the blame onto Democrats. But if Pelosi cautiously slow-walks the hearings, Republicans will still try to deflect, but with less impact, and more likelihood that Trump’s disgraceful record on shutdowns will be emphasized in the news.
7. Another threat-slash-opportunity for the Republicans is that, according to long-standing House Rules of Procedure, once articles of impeachment are presented to the floor, they are considered “principled”. Which in laymen terms means impeachment takes priority over all other House business. Senate Majority Leader Mitch McConnell, infamous for his hard-rock constipation on bringing bipartisan bills to the floor, will have nothing to say and no way to stop the juggernaut of impeachment.
8. Finally: a slow, careful impeachment process may threaten a few of them personally. Threads will be meticulously untangled and followed to their origins. Even though only a few people may be judged complicit, anyone who vocally supported them or accepted donations and endorsements will be toxic. The personal, financial, and emotional investment in this president has been foolishly intense and extravagant. Many Republicans have a lot to lose.

So, McCarthy isn’t happy. In fact, he’s madder than he was before. But eh, maybe he should have been little more transparent about what he was actually hoping for.