US President Donald Trump seems to be sending mixed or multiple messages when it comes to the House impeachment hearings. Version one is to say that the hearings are a fraud and that he does not expect the House to impeach him. Version two is daring the House to impeach him so that he can have a trial in the Senate and acquit him. Both versions are being circulated so that he can look like a winner no matter what happens.
If the House opts not to impeach and instead takes other action such as censure or going after his subordinates, Trump declares himself a winner because they did not impeach. This is important for him to say so as to prevent the House from taking actions that the president will not be able to defend himself against. By that, if the House censures the president he cannot take any action to clear his name. The same is if the House moves to have his subordinates charged with crimes.
Conversely, if Trump is impeached, he will bear the mark of only the fourth president in US history to have been impeached or face impeachment inquiry. Even if acquitted by the Senate, Trump’s legacy has been damaged.
Whatever the House does will have implications for the 2020 election and Trump’s legacy in his dual messages are efforts to combat both of these problems.
Question: Some defend Trump’s phone call with Ukranian president Zelensky and the request for him to do a criminal investigation of the Bidens as routine or proper. Was it?
No, it was not routine or the usual way the US or one country seeks to help another country with criminal investigations.
As a matter of international law, one country has no inherent legal obligation to assist another in criminal investigations. However by treaty many countries in the world, including the US, have entered into Mutual Legal Assistance Treaties (MLATS). MLATs cover issues such as sharing of evidence, serving summons, and tracing suspects or witnesses. One of the most visible forms of MLATS is the extradition process.
The US has extensive MLATS, with more than 70 of them with other states. It is also a party to multinational agreements. These MLATS outline procedures for how and when the US makes requests for other countries to assist in criminal law enforcement activities. These procedures have clear protocols regarding whom or what agency in the US requests help from a foreign law enforcement entity and they generally do not include the US president making the request to another head of state to initiate an investigation.
The point here is that what should have come out in the impeachment hearings but has not is that treaties govern US requests for foreign criminal legal assistance and the way Trump requested it was highly irregular. Thus, contrary to claims to the contrary, other presidents have not done what Trump did and treaty governs what should have happened.
What makes this impeachment process different from previous ones?
There are a lot of differences between this impeachment inquiry and the previous three. One is the fact that the degree of partisanship now is so great that there appears to be little indication of any chance of bipartisan cooperation.
This partisanship is significant because it undermines the structural design of the US constitutional framers from 1787. Remember back then the Framers presupposed the political parties would not exist (and in fact feared their divisive nature) and the Senate was not elected but appointed by state legislatures. The combination of these two factors made the entire Congress, but especially the Senate, far more independent than it is now.
The increased partisanship today, even compared to 1998 with the Clinton impeachment, questions the extent to which the concepts of separation of power and checks and balances work to the extent that Congress will perform its independent duties to assess the fitness of the president to stay in office. It looks like party loyalty is more important. Evidence of that is a story that came out last week indicating that the president and Senate Republican leaders are conferring on how to do the Senate trial. It seems odd that the supposed impartial Senate would be consulting with the person on trial regarding how to conduct the trial.
Did the Democrats make a mistake in terms of framing the impeachment debate as a quid pro quo?
Yes they did. The quid pro quo is a criminal bribery model of illegal behavior. What the qui pro quo framing has done is to make it a question of whether the president broke a criminal law. This is not how the impeachment inquiry should be framed. As Alexander Hamilton declared, impeachment is not a criminal inquiry, but more of political judgment issue regarding the fitness of a person to remain in office as president. Much in the same way that debates about money in politics have wrongly been narrowed to the issue of quid pro quo while ignoring the broader issues of how money structurally corrupts the political system, the Democrats in the impeachment inquiry should have been talking about the president as engaging in actions that are abuses of power. It is understandable while the criminal law analogy has been used, but it too much constricts how to judge what the president did, forcing it into a criminal law model.
Have the Democrats proved their case?
It depends on what your partisan orientation is and whether you watched the hearings at all or what station you watched them on. Remember, the hearings are not over and it will soon move to the House judiciary Committee and more hearings could take place.
In terms of have the Democrats proved their case, they have clearly corroborated the whistleblower’s allegations, The issue now is a constitutional judgement issue–does what Trump is accused of right to an impeachable offense? Unlike a criminal trial where we have a clear standard of proof–beyond a reasonable doubt–there is no clear standard here.
What changes if and when the impeachment process moves to the Senate for a trial?
The playing field changes completely in the Senate.
Again, remember that the impeachment and trial process is not a criminal inquiry. This means the normal rules of evidence and due process do not apply. Right now Trump and Republicans are objecting to this, claiming the process involves hearsay evidence for example. Once it goes to the Senate hearsay evidence and anything else can come in and one should not be surprised if the Biden conspiracy theories and claims are introduced.
How will impeachment process play out over the next few weeks?
While many think the House will vote on impeachment before the end of the year, it may not occur until January or later. Assume a January impeachment vote, a trial in the Senate could occur just as the Iowa caucuses occur. Such timing could help or hurt Democrats, especially Senators, who can use the trial and their vote to their political advantage.
