The “boiling frog” fable, and starting the Trump impeachment investigation

Much of the political debate in Washington revolves around whether the Democratic-led House of Representatives should impeach President Donald J. Trump, or begin an investigation into the facts to determine whether there are grounds for impeachment. Often the two different alternatives are conflated, erasing the nuances and obscuring the advantages of initiating the impeachment process, without immediately or even quickly proceeding to votes on Articles of Impeachment.

An early House vote of impeachment might lead to an early acquittal in the ensuing trial in the Senate, whose Republican members have not shown themselves to be fair-minded arbiters of fact-finding and justice. This could work to Trump’s benefit.

However, what an increasing number of House Democrats are beginning to discuss is the option of initiating impeachment hearings without necessarily proceeding to vote on Articles of Impeachment.

Instead of doing the hard work of laying out the facts of Trump’s “High Crimes and Misdemeanors”, Democrats have been content to postpone their own action 1) while waiting for Robert Mueller to complete his report; 2) pending receipt of the unredacted Mueller Report; 3) receiving the documentation underlying the Mueller Report; 4) hearing from key witnesses such as Mueller or former White House Counsel Donald McGahn in public sessions; or 5) hearing Attorney William Barr’s testimony in open hearings in response to a Judiciary Committee subpoena.

The Trump Administration has so far stonewalled on items 2, 3, 4, and 5, so the question of whether it has been wise to forestall an impeachment inquiry while waiting for one or more of these chimera to come through has now become, for all intents and purposes, moot.

With Trump stonewalling Congress on all fronts, asserting that his administration will not comply with any House subpoena, the argument that the facts regarding “impeachable offenses” can be fully developed through normal oversight proceedings has become no more than a transparent illusion.

So, what should the Democrats in the House do?

The obvious answer is that they should initiate impeachment proceedings, while at the same time firmly resisting any calls to proceed to votes on Articles of Impeachment. They should develop the evidence for impeachment methodically, introducing the American people to the contents of the Mueller Report, and other evidence, in televised hearings—-with or without the testimony of Mueller himself.

The effect will be like raising the temperature in a pot of water in which Trump is the frog. Democrats should keep raising the temperature, as the American people (not just Democrats and political junkies) are shown in exquisite detail, piece by piece, the factual evidence of Trump’s crimes and other “High Crimes and Misdemeanors”. While the “boiling frog” fable is apparently not true, it would be good to keep Trump in hot water, while many would be pleased just to see him jump out of the pot.

It is time for Democrats and others in the House to marshal the facts and evidence that might support arguments for impeachment. They may be afraid of a runaway train. But with Nancy Pelosi and a compromise among themselves, they can control for that, and effectively manage timing issues related to an impeachment vote.

The battle is for the attention of the American public. Investigative hearings into facts that might form the grounds for impeachment, televised, can probably generate that attention.

Such an approach should help shift the conversation from the abstract question of whether the President should be impeached, on the one hand, to specific facts undergirding arguments based on his conduct that would justify impeachment, on the other.

The Trenchant Observer

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.