The Trump-Ukraine
Impeachment Inquiry Report issued on December 2, by House Permanent
Select It does so by amply documenting how Donald
Trump sought to use the office of the presidency for personal political benefit
at the expense of America’s national interests in tendering US military aid to
Ukraine on the condition that its president announce it was going to investigate
Joe Biden and Ukrainian involvement into the 2016 US elections. The report also notes the unprecedented
efforts by Trump to impede congressional investigations into this matter. Both are serious matters.
Yet even taking all of the facts
alleged here as truthful, they alone should not be grounds for
impeachment. Additionally, if the House
Judiciary now expands impeachment inquiry into additional matters that prove to
be incriminating, they too should not warrant presidential impeachment even if
the House concludes that they rise to the constitutional level of “treason, bribery,
or high crimes and misdemeanors.” It is
not because these acts, or they many other abuses of power that the president
has caused are not serious. It is
because impeachment is a losing strategy for House and Democrats.
Speaker Pelosi was correct months
ago when she said Trump was not
worth impeaching. She correctly
resisted the demand to impeach, only giving in when revelations of the phone
call with the Ukrainian president were revealed. As the Zelensky telephone saga as unfolded,
there is little to suggest what the Democrats get by impeaching and instead
stand to lose a lot.
Consider first that after several
weeks of hearings public
opinion has mostly frozen. Polls suggest about half of Americans think he
should be impeached and removed from office.
Trump’s based has rallied behind him and congressional Republicans show
no sign they will defect. It is
skeptical that coming hearings too will change anyone’s mind.
Part of the problem has been how the
Democrats framed the issue–quid pro quo.
In describing the Zelensky call in terms of a narrow conception of
bribery they missed the ability to paint a larger picture of Trump corruption
and abuse of power. The quid pro quo
description forced the debate into
whether the president broker federal bribery law, allowing him and the
Republicans to claim denial of due
process, use of hearsay evidence, or other claims that are appropriate to
raise in a criminal inquiry, but which
do not fit into an impeachment process which Alexander Hamilton declared in Federalist 65 as a political inquiry. The Democrats framing boxed them in and
Republicans took advantage, allowing them to declare there was reasonable doubt
about what Trump did.
But the impeachment process is
broken much in the same way that American government in general is. The original design of the impeachment
process came from constitutional framers who
did not anticipate or envision political parties and polarization to
exist, and when the Senate was designed to be appointment and not elected. Then checks and balances and separation of
powers were meant to counteract presidential abuses of power. Fast forward 230 years, there has never been
a successful impeachment and conviction of a president and the powerful
partisanship that now exists means that party loyalty is more powerful than
checks and balances.
No one seriously should think that
were the House to impeach the president a Republican-dominated Senate will
convict. Split 53-47, 20 Republicans
will not defect and join Democrats. At
best one can hope for is that Mitch McConnell will give Susan Collins and
perhaps a couple of other endangered Republicans the permission to vote to
remove the president, thereby ensuring their re-election and giving the party
the opportunity to claim they were bipartisan.
At worst, think of what happens to
impeachment when it leaves the House and the Republican Senate controls the
process. For one, even though the
Constitution implies that the Senate has to hold a trial, McConnell could
refuse to do so, and no one can force them.
In Nixon v. United States, 506
U.S. 224 (1993) the Supreme Court said issues of impeachment are not reviewable
by the federal courts, suggesting that if the Senate does not hold a trial,
what then?
Assume a trial is held. Imagine first how the Republicans will put
Biden on trial, perhaps calling him or his son to testify. This is not simply an acquittal Trump can use
to motivate his base. Even if a trial is
held, nothing really requires a when in terms of timing. Maybe McConnell reprises the logic of
delaying confirmation hearings in 2016 for Supreme Court nominee Merrick
Garland, declaring that the trial will not occur until after the 2020 elections
so that the people can decide.
Or consider a different
scenario. Let’s say one of the
Democratic Senators running for president gets the nomination. Hold an impeachment trial in the Senate in
October during the general election and you can lock down that Senator for
weeks from campaigning. Other political
manipulations of the trial are also possible.
The point is that Democrats are not going to get a conviction and they
stand to lose big time with impeachment.
Here is where House censure is a
viable alternative. Continue to hold
hearings, gather more evidence, make the strongest case possible for
impeachment. But then declare the
conviction in the Senate is not possible because of partisanship or because
they elections should resolve the issue, and then vote to censure.
Censure may be a potent tool
here. Especially given that the
president has said he will not let his staff participate in the House
proceedings, the Democrats get the final word on Trump’s behavior, lacking the
president’s side of the story in the proceedings. Trump loses the ability to get the benefit of
acquittal in the Senate, and swing voters in the critical swing states get the
opportunity to render a final judgement via their votes in November.
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