Too difficult for our elected officials to work together?

It was reported some years ago that, when they entered office, the Secret Service took away then-President Barack Obama's Blackberry, and barred then-Vice President Joe Biden from driving his Corvette anywhere other than on the driveway of the vice president's residence. Where would we be today if such "obedience to the unenforceable" still prevailed in our nation's Capital?

We are now watching what may end up being seen in historical perspective as a tragic episode, even though it's being billed by many as a proper, now televised, impeachment investigation. However, invocation of executive privilege and/or the Constitution's speech and debate clause do not often result in kindness, gentility or truth.

We now have a "transparent" president, who communicates his thoughts and feelings via Twitter, capitalizing on the reality that many voters and others believe what appears on digital platforms and in other media is true. Congress and other competitors for voters' attention respond in kind, and we end up with a multitude of what is being called "fake news." Not fake because it isn't ever true, but fake because it doesn't follow from the listener's narrative, which the listener gets from other media, and is what defines that person's truth.

But what happened to sometimes tedious, inclusive proceedings among the people involved as a means to find truth? Are we seeing such an event in the current impeachment inquiry?

It is constitutionally true, as the late President Gerald Ford said when he was House minority leader, that "[a]n impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history" (Jon Meacham, et al., "Impeachment, An American History" (2018) at p. xxiv), and that each of the senator "jurors" at an impeachment trial "[is free] to choose his or her standard [of proof]." Lawrence Tribe, "American Constitutional Law" (3d ed. 2000) at p. 162. But judicial analogies to impeachment standards still abound, and have led to rules in the House and Senate for such proceedings.

The impeachment process in the House has been described as akin to a grand jury investigation, where the person under investigation has no right to appear or be heard, even via his or her counsel -- and the proceedings are secret. It has been said that, in such circumstances, any prosecutor worth her or his salt could indict a ham sandwich. (Tribe at p. 163.) Here, there is little doubt that Congressman Adam Schiff is an able prosecutor, and the House Intelligence Committee's proceedings were initially conducted in "secret" (albeit with numerous "leaks"), but they are now televised and Schiff still gets to decide which witnesses can be heard.

In a judicial proceeding, this breach of the "secrecy" rule applicable to grand jury proceedings might result in any indictment being dismissed, but the House contends the rules applicable to a judicial proceeding don't apply to impeachment of the president.

However, in a related matter, the House Judiciary Committee went to court to get access to grand jury proceedings in Special Prosecutor Robert Mueller's investigation, based upon the Judiciary Committee's legal position that the House's impeachment inquiry is an investigation preliminary to a "judicial proceeding" in the Senate. Thus, according to the House Judiciary Committee, an exception to the secrecy requirements found in Federal Rule of Criminal Procedure 6(e), which allows disclosure of grand jury information in proceedings "preliminarily to or in connection with a judicial proceeding," applied in that case. See In re Application of the Comm. on the Judiciary, U.S. House of Representatives, 2019 U.S. Dist. LEXIS 184857, 2019 WL 5485221, at p. 28. That district court granted the sought-after order, which was later stayed by the U.S. Court of Appeals for the District of Columbia, after a hearing where one of the judges asked whether the courts' involvement was an improper intrusion into impeachment proceedings.

In its comprehensive opinion, the district court acknowledged that House impeachment proceedings are "somewhat akin to a grand jury," and "[a]ccordingly, just as a grand jury investigation is 'preliminary to a possible criminal trial,' (cite) a House impeachment inquiry occurs preliminary to a possible Senate impeachment trial." The opinion does not suggest that the House took issue with that analysis or conclusion.

In reaching its decision to release the grand jury material, in the opinion the court cited the late Chief Judge John Sirica's remark in releasing the "Watergate Roadmap" that: "it would be difficult to conceive of a more compelling need than that of this country for an unswervingly fair inquiry based on all the pertinent information," concluding that: "Impeachment based on anything less than all relevant evidence would compromise the public's faith in the process."

Acknowledging that impeachment is a political process which the courts cannot supervise, it seems that the House is using the courts to get what it wants by calling an impeachment "inquiry" part of an "judicial proceeding," but at the same time denying the president's people and its own members who are not in sync with Speaker Nancy Pelosi's apparent "rush to justice," the right to present witnesses and evidence as they see fit.

In legal proceedings we would call that playing fast and loose with the court, which can result in dismissal under the doctrine of "judicial estoppel." See New Hampshire v. Maine, 532 U.S. 742, 749 (2001) ("This rule, known as judicial estoppel, 'generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase." quoting Pelgram v. Herdrich, 530 U.S. 211, 227, n.8 (2000)); Id. at 750, quoting Scarano v. Central R. Co., 203 F.2d 510, 513 (3d Cir. 1953) ("judicial estoppel prevents parties from 'playing fast and loose with the courts'"); Id. at 751 quoting Scarano v. Central R. Co. ("judicial estoppel forbids use of 'intentional self-contradiction ... as a means of obtaining unfair advantage.").

In a true grand jury proceeding, no one but the prosecution can call witnesses, but the proceedings are held in secret, and the prosecutor would risk the indictment by disclosing any of what went on before the grand jury. Here, the House is not bound to follow the Rules of Criminal Procedure, but past presidents and judges subject to impeachment proceedings have been afforded more "due process" under House and Senate rules than President Donald Trump is getting in this one. Even still, many are predicting a partisan acquittal in the Senate.

Close to the time of President Bill Clinton's impeachment, Professor Tribe wrote about proceeding with an impeachment trial in the Senate when an acquittal seems "foreordained":

"The danger of such a process is that the dynamic of the trial itself may operate to rivet attention on the potentially dramatic details of precisely what the president did -- to the exclusion of adequate attention to the logically prior, but emotionally less compelling, question whether, even if the president did all he is accused of doing, he still should not be convicted of a high crime and removed from office." (Tribe at p. 165)

Maybe that is what Speaker Pelosi and Chairman Schiff are shooting for; knowing that Trump will most likely be acquitted, but banking on being able to use a Senate acquittal by the majority-Republican Senate to their party's advantage in the 2020 elections?

As an alternative, history provides us with examples of statesmen who rose above even virulent feeling toward one another.

Presidents John Adams and Thomas Jefferson had collaborated on, and signed, the Declaration of Independence, but almost as soon as the government of the United States got under way, they became enemies. Then, after they had left office, through correspondence they reconciled, and ended up both dying on the 50th anniversary of the signing of the declaration that started the United States of America. Quite a legacy!

More recently, Presidents Gerald Ford and Jimmy Carter were partisan political adversaries, with Carter defeating Ford after he pardoned former President Richard Nixon. But they became friends, and agreed that the survivor would give the eulogy at the other's funeral. President Carter honored that promise when President Ford died, and he's still going at 95, if not so strong.

President Ronald Reagan and House Speaker Thomas "Tip" O'Neill were fierce political adversaries while in office, but were able to be civil with one another, and often rose above the fray, compromised, and got the nation's business done.

Prithee our elected leaders would follow that paradigm, rather than their narrative of the day.

But with instant communication, have we made it too difficult for our elected officials to work together, and still get reelected? Have we forever abandoned spending the time it used to take between a statement or act and the response, that allows reasonable people to sort through what is going on, and at stake, and at least try to come to a rational resolution?

In today's highly partisan fight for power by the two major political parties, it seems that trying to discover the truth is much less likely; and sadly, is probably becoming irrelevant to what they're really after; election of their party's candidates at the next election, come what may.

In the present situation, the truth seems to be that, if the House impeaches, the Senate will not convict, and as Professor Tribe notes, that scenario will distract the Senate, and the voters, from the real issue, which is a question whose answer will resound for generations: Should President Trump be removed from office, thus denying the voters their inalienable right to choose their elected representatives?

It's not too late to bury the hatchet, George Washington and cherry trees notwithstanding. 