Democrats should think like criminal prosecutors as they investigate Trump impeachment

Barbara McQuade, Opinion columnist

The House Judiciary Committee has adopted procedures for impeachment proceedings and, according to Chairman Jerrold Nadler, the vote signals the start of “an aggressive series of hearings” starting Tuesday. Others, like House Majority Leader Nancy Pelosi, seem concerned that an impeachment that results in an acquittal in the Senate would create a backlash that will boost President Donald Trump’s reelection effort in 2020. But perhaps political victory should not be the sole motivation for impeachment. 

Congress can find some lessons about impeachment from the way prosecutors make investigative and charging decisions.

In a criminal case, an investigation begins when there is a serious allegation of criminal conduct. Investigators must decide whether the allegations are seriousness enough to expend investigative resources. At that stage, the investigators do not know what the outcome of their work will be. Investigators take the evidence where it leads, seeking an indictment from a grand jury only if the evidence merits charges.

Are allegations against Trump serious enough?

Similarly, in the case of impeachment, an investigation should begin only if serious allegations merit the distraction from other business that it will require. Here, Nadler has said that he plans to focus on obstruction, corruption and abuse of power. The House is reviewing obstructive acts described in the Mueller report, payments of hush money to silence adult film actor Stormy Daniels about alleged marital infidelity on the eve of the election, Trump’s alleged use of the presidency to enrich himself, and his administration’s refusal to comply with congressional subpoenas. These are serious allegations that merit further inquiry, even if the outcome of an investigation is unknown.

Once prosecutors have learned the relevant facts, they consider two questions. First, they decide whether a crime has been committed. In the case of impeachment, the question would be whether Trump has committed a high crime or misdemeanor. But prosecutors do not automatically file charges just because a crime has been committed, and neither should the House vote to impeach without further consideration. The second part of the equation is whether a substantial interest requires filing charges. That is, not only do prosecutors decide whether they can file charges, they also decide whether they should file charges. In the case of Trump, members of Congress must consider the seriousness of any wrongdoing they find.

House Judiciary Committee Chairman Jerrold Nadler, D-N.Y., right, confers with Rep. David Cicilline, D-R.I., left, as the panel approves procedures for upcoming impeachment investigation hearings on President Donald Trump, on Capitol Hill in Washington, Thursday, Sept. 12, 2019.

Once prosecutors decide that a crime has been committed, and that a crime should be charged, they must decide what charges to file. Although investigations often get broader before they get narrower, filing every charge possible is rarely the best way to proceed because weak charges can dilute stronger ones. The House would be wise to pare down potential charges from its list to those that are the most egregious and are based on the strongest evidence. The investigation will inform its decision as to whether to file charges, and if so, which charges to file.

Extraordinary step could end presidency

In making charging decisions, prosecutors must also consider why charges are appropriate. They must be able to articulate why an offender should be punished for a particular offense. The criminal justice system exists to punish offenders in hopes of protecting the public, deterring criminal behavior and promoting respect for the rule of law, among other reasons.

In the realm of impeachment, House members should think of these interests as well as they decide whether to take the extraordinary step that could end a presidency. If we simply shrug and allow Trump’s behavior to go unaddressed, is the public harmed? If we tolerate Trump’s behavior now, does that give license to future presidents to abuse the power of their office? If we give Trump a pass, do other citizens tend to believe that the duty to comply with law is not to be taken seriously?

Nadler has stated his reason for the impeachment investigation: “The conduct under investigation poses a threat to our democracy. We have an obligation to respond to this threat.”

Even if an acquittal of Trump in the Republican-controlled Senate seems likely, maybe impeachment is still important to the long-term health of our republic. Members of the House should ask themselves whether they want to be able to say that at this moment in history, they cared more about protecting the public, deterring criminal behavior and promoting respect for the rule of law than about winning the next election. At some point, we must put country before party, and duty before politics.

Barbara McQuade, a former U.S. attorney for the Eastern District of Michigan, is a professor at the University of Michigan Law School and a member of USA TODAY's Board of Contributors. Follow her on Twitter: @barbmcquade 

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This article originally appeared on USA TODAY: Trump impeachment: Democrats must investigate, whatever the outcome