A ‘closed-door’ impeachment process: Three questions.

As the Democratic-led House impeachment probe into President Donald Trump rapidly moves forward, Republicans are increasingly crying foul – calling the process secretive and unfair.

A scene of chaos and protest unfolded on Capitol Hill Wednesday, as a group of Republican lawmakers pushed their way into a secure hearing room, violating a no-devices rule there and delaying the testimony of Pentagon official Laura Cooper by five hours. Republicans said the move was an attempt to draw attention to their concerns. Democrats called it a stunt and a distraction.

One key GOP objection: The impeachment investigation has so far taken place behind closed doors, since it began over a month ago. On Thursday, Sen. Lindsey Graham, the Republican chair of the Senate Judiciary Committee, introduced a resolution condemning the lack of transparency in the proceedings. 

Democrats point out that Republican lawmakers and staff have been in the room for all of these sessions, and have had opportunities to question the witnesses. Closed-door depositions, held without press and TV cameras present, are not an infrequent occurrence on the Hill, particularly when sensitive information may be involved. Democrats also say public hearings are coming, possibly as soon as mid-November.

Still, this is not a run-of-the-mill congressional investigation; it is an impeachment inquiry. And the Constitution sets few procedural parameters for impeachment. The only modern precedents – the investigations into Presidents Richard Nixon and Bill Clinton – involved domestic rather than foreign matters, and included criminal complaints, which shaped those proceedings differently. 

Beneath the partisan debate, some very real civic values are at stake. The perceived integrity of such a politically charged investigation may depend on finding the right balance between public transparency and safeguarding the fact-gathering process. 

What do the rules say about closed sessions in impeachment inquiries?

A deposition is a tool of congressional fact-gathering, and is different from a hearing, which is meant to get people to say things publicly, says Molly Reynolds, a congressional scholar at the Brookings Institution, by email. “There are several reasons the House is conducting depositions and not hearings now,” she says. “One is that they are still in a fact-gathering mode. The second is that the sensitive nature of the underlying information makes it more appropriate for closed-door sessions, at least on an initial pass.”

House Democrats add that they don’t want witnesses to be able to coordinate their testimonies. They also point out that the inquiries into Presidents Nixon and Clinton both had independent prosecutors to conduct private interviews of witnesses. Absent such a prosecutor, they say, the committees have to step into the role.

Under the Constitution, Congress is free to set its own rules and procedures – including when it comes to impeachment proceedings. Setting new rules or ignoring precedent is not a constitutional violation, says congressional scholar James Wallner at the R Street Institute, a center-right think tank in Washington.

Past presidential impeachment proceedings did involve a vote in the full House to formalize an investigation, something that hasn’t happened yet in this case. 

But there’s no rule requiring a full vote to kick-start impeachment. And committees have broad powers to set their own rules. They do have to meet specific criteria before they can hold closed sessions or depositions as part of a probe, such as whether testimony could threaten national security or incriminate the witness. Still, the majority has near-unilateral power to decide who to call in as witnesses and when those witnesses are heard.

Who’s in the room and what happens there? 

The depositions, held in a secure room in the basement of the Capitol Building, are open to Democrats and Republicans (and their staff) from the three committees undertaking the joint investigation. That’s about 100 lawmakers allowed to attend and ask questions of the witnesses. 

The depositions start with opening remarks – first from House Intelligence Chair Adam Schiff, D-Calif., then from a member of the minority, and then from the witness, according to reporting by The Wall Street Journal. After that, Democrats and Republicans each get one hour to interview the witness. Members and staff then get to ask questions in 45-minute intervals.

When Republicans ran an investigation on American deaths in Benghazi, Libya, GOP Rep. Trey Gowdy (chairing the House probe) said at the time that closed-door sessions are the most fruitful because lawmakers aren’t tugged toward grandstanding by the presence of TV cameras. 

Could closed sessions undermine public trust in the process? 

Republicans have grown increasingly unhappy with the investigation’s lack of transparency – and selective leaks that seem to be coming from Democratic members of the investigating committees. 

GOP Rep. Lee Zeldin, a member of the Foreign Affairs Committee who has attended the depositions, argues that withholding information from the public, much less the rest of the House, undermines the credibility of the process. 

“There’s a very long list of items that would make this whole process more transparent, more legitimate, more credible,” he says.

Some outside experts agree that greater openness would help widen public trust. “If you want to create buy-in, this is not the way you go about doing it,” says Mr. Wallner at the R Street Institute.

Democrats say Republicans are focusing on the process because the facts that have emerged so far have been damning. “They want the distraction,” Oversight Committee member Jamie Raskin of Maryland told reporters outside the hearing room. 

Congressman Raskin said the committee would release transcripts of the testimonies and eventually hold public hearings. The Washington Post reported Wednesday that public hearings could start as soon as the middle of November.