Who the heck told Adam Schiff that he could conduct impeachment inquiries in secret? As it turns out, Judge Andrew Napolitano told his colleagues on Donald Trump’s favorite morning show, it was John Boehner and the House Republican majority in 2015. “I read the House rules,” Napolitano told Fox & Friends, and “this initial level of inquiry can be done in secret.” Secret interviews were conducted in both the Nixon and Clinton impeachments, although by staff rather than by the committees involved, Napolitano notes, so what Schiff is doing isn’t without precedent after all:
Andrew Napolitano: "As frustrating as it may be to have these hearings going on behind closed doors … they are consistent with the rules. … When were the rules written last? In January of 2015. And who signed them? John Boehner. And who enacted them? A Republican majority." pic.twitter.com/Zl10ZNugf4
— Bobby Lewis (@revrrlewis) October 24, 2019
This is a good rebuttal to accusations of a star-chamber approach, but it’s not a complete defense to them. While the idea of interviews and depositions being taken in secret are not new, this process for doing them is at best proving problematic. Staff attorneys would probably know to keep their mouths shut about what transpires in such depositions, but Schiff’s panel has been selectively leaking like a sieve ever since they started. His Democratic panel members have been all over the news making claims about blockbuster opening statements and testimony.
Judge Napolitano notes that this is similar to a grand-jury process where testimony will later get tested in court. Only in form is that statement true. In practice, grand juries take secret testimony all the time, but they are also forbidden by law to comment publicly on it. Schiff’s panel is trying the case in public without the president or his legal team able to access the witnesses or testimony, which seems less like a grand jury and more like a kangaroo court … or a star chamber.
The result of this is a process devoid of credibility, through the fault of Schiff and his House Democratic team. Furthermore, it’s entirely unclear that this will ever move to a fair process before the House votes on articles of impeachment. Napolitano is correct that staff attorneys took secret testimony in the previous two impeachment inquiries, but they then held public hearings for the cross-examinations that he describes, allowing the American public to see in real time what was being said and how reliable it was. Schiff’s use of the rules is aimed to avoid that step and go directly to impeachment, forcing the Senate to do the job the full House should have done in the first place.
Just because the rules allow it doesn’t make it good. Or right, either.