How To Conduct The Impeachment Inquiry — And How Not To

The recent hearing by the House Intelligence Committee with Acting Director of National Intelligence Joseph McGuire made one thing very clear: Speaker Pelosi must convene a select committee to handle the impeachment inquiry to ensure that that committee uses trained attorneys to ask the questions.

I have watched too many hearings in which members of Congress squander limited questioning time for self-aggrandizing purposes and/or to hear their own voices, and fail to elicit useful information from witnesses. They cut off witnesses who do not say what they want to hear, and they are unable to obtain the testimony they want or need because they do not know how to ask a proper question, or to follow up appropriately when a witness is evasive or unresponsive. Faced with a lying or obstructive witness, they become visibly upset and lose the force of their questioning. Meanwhile, their Republican counterparts, pursuing a different agenda, do their best to bolster obstructive witnesses and to make speeches decrying the legitimacy of the inquiry and to bolster Donald Trump.

Creation of a select committee, with a budget and staff — and in particular a chief counsel, as was done with Watergate — would reduce the appearance of partisanship and build public confidence in the process. But mainly, doing so would ensure that lawyers — who have already developed the skill set necessary to elicit truthful information and/or box recalcitrant witnesses in and expose their duplicity — are the ones asking the questions.

Asking questions is a skill. Doing it well is not easy. Doing it in 5–10 minute intervals — an approach that seems to serve no end except ensuring that every Congressperson gets a turn in the spotlight — is virtually impossible. Doing it in 5-10 minute intervals without any mechanism to avoid repetition or to ensure continuity, is both foolish and inconsistent with best practices for investigating facts. And of course, different witnesses will require a different approach, and those asking the questions need to go into each hearing with a set of goals they want to accomplish.

When litigators take depositions, we either are on a fact-finding mission, asking open questions because we are trying to discover what actually happened, or we are trying to get cross-examination material for trial. We must be strategic, and we have to draft our questions in a way to box the witness in. And even if our goal is purely fact-finding, we want the witness’s statements to be clear and unequivocal if they help us, ambiguous and difficult to follow if they don’t. It is a step-by-step process and we need to know going in what we need to get from the witness.

It is therefore critical that in these hearings, the questions all be asked with specific goals in mind — such as to learn a particular set of information, or to prove or disprove a fact. The words and demeanor of the witness are what matters, and it is not sufficient or effective for the questioners to do most of the talking, lecturing the witness and giving speeches intended to upbraid (or praise) them for their actions. However, unlike a deposition, these impeachment hearings are public, and so there’s an obvious educational component. There can be some utility in the questioner expressing indignation or support to provoke a response from the witness, or even to educate the public about the basis for the position — but when each House member feels the need to do so, the hearings can become exercises in grandstanding.

For example, the Democrats on the panel during Mr. Macguire’s hearing could have taken a less adversarial approach to learn why the whistleblower complaint was not turned over to Congress. And they could also could have educated the public on the contents of the complaint, why they were problematic, and why the White House was incentivized to withhold the information. Instead they spent a lot of time asking Mr. Maguire to agree with their characterizations of the contents of the complaint, knowing full well that he still works for Trump, and putting him in a very difficult position. Was there any utility They could have, step by step, built a case using his testimony about election interference to show why soliciting a foreign government is not acceptable, or why tying the release of military aid to the performance of personal favors that aid the president’s re-election campaign is a national security issue. But they did not.

I’m saying this not to second guess the strategy per se, but because I watched all of the Maguire hearing, yet came away not only not knowing what the Democrats had achieved, but not knowing what they, in fact, set out to achieve. And that’s not great. Yes, they learned some facts and seemed to have exposed that Mr. Maguire may even have discussed the contents of the complaint with Trump. But my impression is that the Democrats did not go into that hearing with a coordinated strategy or fully developed idea of what they wanted to achieve, and that informed the questioning and led to significant redundancy and squandered opportunity. In fairness, they had scheduled the hearing before the White House agreed to release the whistleblower complaint, so likely the original point of the hearing was mooted that very morning. They seem all to have assumed that Mr. Maguire was part of a conspiracy to prevent the whistleblower complaint from coming out, and when that turned out to be the case, the Democrats were not really able to pivot and deal with that, or with the fact that it became pretty clear early on that Mr. Maguire, while no hero, was not the bad guy. This, again, is where the need for seasoned examiners comes in.

Further, instead of focusing on the underlying criminality in the complaint, or even the cover up that the White House and the Justice Department seemed to have engineered, Democrats spent a great deal of time attacking Mr. Maguire personally for his poor judgment in not seeing the conflicts of interests, or in ignoring them. The result was that despite their praise for Mr. Maguire’s public service, Democrats seemed to put him, rather than President Trump and Attorney General William Barr and Acting Chief of Staff Mike Mulvaney, on the receiving end of their legitimate anger. This did not play well, especially when what came through loud and clear was that Mr. Maguire was deeply troubled by the contents of the whistleblower complaint, that he sent it out for criminal referral, and that he didn’t want to withhold it from Congress.

There were certainly times when Democrats caused Mr. Maguire to squirm. It was quite clear that Mr. Maguire has tried to be, and believes himself to be, a dedicated public servant who has always acted with honor and integrity. The Democrats asked him repeatedly whether it is acceptable for a president to solicit foreign interference in a U.S. election to help his campaign, or to withhold military aid until that foreign government agrees. Mr. Maguire refused to give them the sound bite they wanted, and ended up twisting himself into an embarrassing pretzel, in which he insisted both that no one is above the law and that President Trump’s attempted extortion of President Zelensky was merely “conducting foreign policy” subject to executive privilege (even though that privilege does not apply to crime or fraud, and even though any such privilege was not asserted by the President, and even if it had been, it’s been waived). He ended up making the ridiculous argument that investigating President Trump’s invitation of foreign interference in the election somehow isn’t in the DNI’s purview if the President did it on the phone with another head of state. He also admitted he had no idea that President Trump had ordered Mick Mulvaney to withhold the funds to Ukraine, and had no knowledge about the solicitation of interference from the president’s personal attorney, Rudy Gulilani, ostensibly in coordination with Secretary Pompeo and Attorney General Barr, except for what he reads in the newspapers.

None of this inspires confidence in the Acting DNI, to say the least. Ultimately, Mr. McGuire ended up proving the very point he began the hearing with: No one can take your integrity; you have to give it away. And in that hearing, trying to straddle the line between appeasing his boss and telling the truth about how he feels about his boss’s actions, Mr. McGuire gave his own integrity away.

But what was the goal here? Democrats seemed hell-bent on proving Mr. Maguire had no integrity when he sent the whistleblower complaint out to the White House and the DOJ, but what is the point of attempting to convince people of that, especially when the complaint has been provided? How did admonishing him show a basis for impeachment, or build confidence in the public that the goal is to get at the truth? How does repeatedly trying to show that a man trying to do his best failed, help support impeachment?

Another example: Mr. Maguire said repeatedly this was an unprecedented situation but Democrats on the committee did not hone in on what else is unprecedented: A president of the United States acting in this manner, outsourcing this type of activity to his private attorney, secreting evidence of possible crimes onto a server reserved for the most sensitive national security issues, and unilaterally withholding military aid for no apparent reason other than to sink his political rival. Yes, the Democrats themselves opined on this, but a lawyer trained to get admissions from uncomfortable witnesses would have steered Mr. Maguire to say this himself, and to explain exactly why he made a criminal referral.

So we need to urge Speaker Pelosi to bring people onto this project with relevant expertise in examining witnesses, who are not elected officials who have to worry about the politics back home. We need her to convene a select committee to ensure that this process is consistent and controlled. She must not allow a situation in which multiple committees solicit the same information and waste time allowing every member to posture for the cameras. Democrats need to use lawyers, and execute on a strategy.

This impeachment inquiry is so critically important; without its success, there is no chance we will have a fair election untainted by foreign interference, or a government in which the president and his minions act within the law. It is critically important because of the grave national security issues at stake in holding back military aid to an ally unless they agree to cooperate in discrediting a political rival. It is critically important because the degree to which Trump has corrupted our government’s infrastructure needs to be exposed and addressed. So many people at the highest levels of government are implicated.

Of course the Democratic members of Congress fully appreciate this — it is why reluctant members support the inquiry. But we can’t leave the execution of the inquiry to multiple individual members of Congress, who have their own political considerations and many of whom are not trained in examining witnesses. Instead, they must enlist the help of professionals who know how to investigate, how to ask questions, and how to manage witnesses. We need the process, though inherently political, to be as depoliticized as possible, and appointing a select committee to carry out the inquiry with a staff and attorneys, to ask questions not divided into arbitrary intervals so every member gets a turn, is much more consistent with truth-seeking than what we have now.