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House Democrats enlist risky legal move in impeachment probe

‘Adverse inference’ that missing evidence is damaging evidence carries political pitfalls

House Intelligence Chairman Adam B. Schiff, D-Calif., joined by Speaker Nancy Pelosi, D-Calif., speaks Wednesday during a news conference on the impeachment inquiry. (Caroline Brehman/CQ Roll Call)
House Intelligence Chairman Adam B. Schiff, D-Calif., joined by Speaker Nancy Pelosi, D-Calif., speaks Wednesday during a news conference on the impeachment inquiry. (Caroline Brehman/CQ Roll Call)

House Democrats have brandished a legal concept to help speed through an impeachment inquiry and pin wrongdoing on the Trump administration — but the strategy might create weaknesses in their case farther down the path to removing President Donald Trump from office.

“Adverse inference” usually plays out in civil lawsuits if one of the parties withholds some evidence, such as if they refuse to testify or if they destroy documents. In those situations, a judge can tell jurors that they can presume the missing evidence would have been bad for the side that didn’t provide it.

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This week, House committee chairmen used “adverse inference” language in letters and statements to add muscle to subpoenas for documents on Trump’s conduct with Ukraine. It echoes a tactic Congress used during the impeachment of Richard Nixon.

In a letter to Trump’s personal attorney, Rudy Giuliani, the Democratic chairmen wrote that not complying with a subpoena “may be used as an adverse inference against you and the President.”

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“If they are going to prevent witnesses from coming forward to testify on the allegations in the whistleblower complaint, that will create an adverse inference that those allegations are in fact correct,” House Intelligence Chairman Adam Schiff of California told reporters Wednesday at the Capitol.

In other words, Democrats can develop a story and present all the evidence. Then they can point out all the missing pieces that the Trump administration refused to provide. And then Democrats can ask, “What are the chances that those pieces would make it look a lot better?” said Michael Stern, a former lawyer in the House counsel’s office and on the congressional committees.

[House Democrats divided on how much evidence they need to impeach Trump]

The strategy illustrates how House Democrats approach an impeachment inquiry more like a courtroom, since the process requires the Senate to hold a trial on any articles of impeachment the House passes and to vote on whether to convict the president.

Many House Democrats say Trump abused the Oval Office to advance his personal interests above those of the country. In a call, Trump urged the president of Ukraine to talk to Giuliani and Attorney General William Barr about opening a potential corruption investigation connected to Trump’s main political rival, former Vice President Joe Biden.

“The difference in impeachment, this is about a specific set of facts to establish a high crime or misdemeanor was committed,” Stern said. “And you are actually going to be taking this into trial, where a trier of fact is going to be asked to look at it.”

Political pitfalls

Adverse inference also is a simple way for House Democrats to avoid one of their hurdles in earlier investigations into the Trump administration. The slow-moving court fights to enforce subpoenas could take months to play out. Speaker Nancy Pelosi has said she wants to wrap up a Ukraine-focused impeachment inquiry as early as November.

And it could give Democrats ammunition to include an article of impeachment about the Trump administration’s obstruction of the House’s inquiry.

But an adverse inference shortcut could also be a pitfall.

Just because House Democrats want to infer that missing evidence is bad for Trump doesn’t mean the public opinion will go along with it. And it probably won’t go over well with Republican senators who would vote on the articles of impeachment, either.

“If they want to do that, they have to be a little careful about how far they take this,” Stern said.

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Ross Garber, who teaches political investigations and impeachments at Tulane Law School, said the tactic “might not be perceived by the American people as a substitute for conducting a fair and legitimate investigation.”

That could be particularly true if the president or administration officials present potentially viable claims that Congress isn’t entitled to certain information, Garber said, such as executive privilege over interactions and conversations with the president.

The public and Senate Republicans could see that as “interference with legitimate rights and powers of the presidency,” Garber said.

And, as Democrats did in the letter to Giuliani, it is more of a stretch to use one administration official’s noncompliance with subpoenas or requests “against the president himself in an impeachment proceeding,” Garber said.

At the end of the day, what House Democrats want is to get the Senate to draw an adverse inference, Stern said.

There are options. “The Senate could say [to the administration], ‘We want to hear from these witnesses,’” Stern said. “Or, ‘If you don’t want to draw the inference the House has asked us to draw, then you have to produce them.’”

The House Democratic chairmen, in a response to Secretary of State Mike Pompeo’s objections to requests to five State Department officials, said they will infer “that any withheld documents and testimony would reveal information that corroborates the whistleblower complaint.”

“If all of the witnesses refuse to appear based upon Pompeo’s objections, it may be difficult to persuade the Senate to draw an adverse inference,” Stern wrote in a post on Just Security.

“On the other hand, if some of the State Department current and former employees (most likely those no longer under the Department’s control) appear and provide damaging testimony, while others fail to appear at all, the argument for drawing an adverse inference will be stronger,” Stern wrote.

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