Cora Mandy explains at Real Politics Impeachment Crusade Blinds Media to Trump’s Accomplishments. Excerpts in italics with my bolds and images.
For Americans across the country, Democrats’ and the media’s fixation on impeachment has engulfed the news the public has consumed for nearly four months. Democrats have worked tirelessly to convince the public that President Trump committed an impeachable offense. Unfortunately for them, these attempts have proved to be futile. Recent polling has shown a drop in support for impeachment. Where our country was previously evenly divided, Americans now oppose impeachment 50%-47% and Trump’s job approval rating has remained steady.
Americans see beyond spin and media narratives, but ascertaining what has been going on in Washington behind the sea of impeachment headlines can be difficult. A new Media Research Center analysis found that from the time that Democrats’ impeachment push began on Sept. 24, the evening newscasts on CNN, ABC, and NBC gave the president’s historic economy and trade developments just nine minutes of coverage, combined, out of 1,098 total minutes. Conversely, impeachment efforts and Ukraine received 849 minutes of airtime. That means news on Trump’s economy made up far less than 1% of the coverage.
Devoid of fair and balanced news sources, Americans do not realize just how much President Trump and his administration have accomplished in the face of the Democrats’ baseless impeachment efforts.
For starters, it was recently announced that nation’s average unemployment rate since Trump took office is the lowest recorded in history: 3.9%. The administration has created opportunities for Americans to rejoin the workforce, and as result we have seen a decline of over 7 million Americans no longer dependent on food stamps.
President Trump continues to break his own records: As of January 2020, more than 158,000,000 Americans are employed, the stock market is reaching new highs, and consumer confidence is at the highest in decades.
It’s impossible to refute the strength of the Trump economy. The media knows this and that is why coverage of it is lackluster; but that’s not the only victory by the administration that has been brushed over in the last few months.
Last December, President Trump signed The Debbie Smith Reauthorization Act. This bill appropriates funding for rape kit testing, DNA training programs, and the sexual assault forensic grant program. The backlog of rape kits in this country soars well over the tens of thousands. The funds granted in this bill ensure that these kits can be tested before the statues of limitations run out and that victims have a better chance of seeing justice.
President Trump took measures in November of 2019 to outlaw animal cruelty and make the prosecution of offenders easier when he signed The Preventing Animal Cruelty and Torture Act into law. This measure provides more comprehensive protections for animals against abuse, torture, and the making or sharing of videos that depict animal abuse. A prior loophole made it difficult to prosecute cruelty cases that crossed multiple jurisdictions, but PACT eliminates this.
President Trump also is keeping America’s youth safer. The development of e-cigarettes and vaping saw a resurgence of tobacco use among children and teens, with one in four high school seniors admitting to vaping. Vaping-related illnesses such as lung disease are on the rise, affecting thousands of Americans. In December of 2019, the administration took decisive action to prevent American children’s accessibility to these life-threatening products by raising the legal age to purchase tobacco to 21.
The Trump administration is keeping its promise to take care of our military and veterans and to secure our nation’s border. The spending deal passed in December delivered a 3.1% pay raise to military personnel, the largest pay increase in over a decade. Further, it provided over $1 billion in funding to continue wall construction on our southern border.
The spending bill also included paid family leave for federal workers, a measure that will bring the American government into the 21st century. Previously, the United States was one of just two countries out of 170 that did not provide financial compensation during family leave. The Trump administration is leading by example, encouraging private sector companies to follow in its footsteps to make paid family leave a possibility for all Americans.
The media will be in hysterics once more this week as Senate lawmakers set the rules and procedures for the impeachment hearings. While Democrats continue on their unfounded quest to remove a duly-elected president from office, Donald Trump will be busy delivering real results for the American people, despite what you may hear in the media.
Looking forward to 2020
Steve Greenhut writes at Spectator California’s Year in Review: Missing Jerry Brown Already. Excerpts in italics with my bolds.
A new progressive administration and Democratic legislative super-duper majorities put California on a collision course with reality.
Basically, the Brown era signaled the last years of traditional liberal governance. The new governor, former San Francisco Mayor Gavin Newsom, comes out of the party’s progressive wing. Democrats have long controlled the Capitol, but an anti-Trump backlash hastened the state GOP’s long-coming meltdown. A couple of GOP lawmakers even recently jumped ship. That means no check on Democrats, which makes this shift even more noteworthy.
Looking back at 2019, we get a vision of the future — and there’s reason for concern.
Newsom was stuck dealing with raging wildfires and a bankrupt public utility that began shutting down parts of the electrical grid to prevent even more fires. This brought back shades of Gray Davis, who in 2003 was recalled by voters (and replaced by nominally Republican Gov. Arnold Schwarzenegger) in the midst of rolling blackouts caused by a failed electricity deregulation plan. That’s not just because of the obvious electricity parallels, but because Newsom’s tepid response was reminiscent of the deer-in-the-headlights Davis.
The wildfire/electricity mess is related to liability rules, an overly bureaucratic regulatory climate, and an environmental approach to forest lands that limited brush clearance. None of these matters could quickly be fixed by any governor — even one who had a clue what to do about it. But the real trouble signs in 2019 have come from the governor’s decision to sign measures that likely would have sent his predecessor reaching for the veto pen.
I’ve covered the worst new law for The American Spectator. This was Assembly Bill 5, which banned many companies from using contractors as their workforce. It epitomizes the new, more aggressive strain of progressivism that isn’t content creating new programs and raising taxes — but is willing to destroy large segments of the private economy. The goal seems to be punishing “evil” businesses. If people’s lives are destroyed in the process, so be it.
The targets of the law were Uber, Lyft, DoorDash, and other ride-sharing and delivery companies whose business model is based on using independent contractors as drivers. The union-backed legislation is designed to force these companies (lawmakers exempted most other businesses from its rules, including attorneys, physicians, real-estate agents, and insurance sales people) to hire their drivers as permanent employees and pay them benefits.
Instead, we’re seeing predictable results. Freelance writers, photographers, and artists were not exempted from the measure — and the layoff notices have been coming to these workers as the year’s end approaches. The newly unemployed shouldn’t worry, though. The law’s sponsor, Assemblywoman Lorena Gonzalez, D-San Diego, said in a tweet (as quoted by Reason): “These were never good jobs. No one has ever suggested that, even freelancers.”
That’s progressivism reduced to one short tweet. These folks know what’s best for us and can determine what jobs are good and which ones shouldn’t exist.
When it comes to drivers, hundreds of thousands of jobs could be at risk, according to a recent economic study. Companies that hire drivers have filed suit and are gathering signatures for an initiative that would exempt these workers, but it’s anybody’s guess how this madness might shake out.
Newsom also signed a bill imposing statewide rent control, even though it’s an unquestionable fact that rent control depresses housing supply. Even California officials are starting to realize that the state’s sky-high housing prices are the result of regulations that squelch housing construction. Yet there’s been no legislative progress in addressing those state-imposed restrictions, only a push for more subsidized housing and passage of the one sure-fire way to quickly make the situation worse.
The governor also signed a package of laws that will slowly strangle the charter-school industry (even though both sides depicted it as a compromise), which is the state’s main educational bright spot. The new Legislature is targeting the gig economy, the housing industry, and the schools. Quite obviously, the next target for their destruction is healthcare. Look out for coming plans for single payer.
As Californians, we’re used to the ridiculous spending plans and the state’s refusal to deal with problems (homelessness, soaring pension liabilities, tax rates that are driving businesses out of state) that are of its own making. That’s been standard fare, and certainly was true during the Brown administration. But we’re heading into a brave new world. I predicted we’d be pining for the days of Jerry Brown.
Adam Mill writes at American Greatness on Senator McConnell explaining the failings.McConnell Crushed Impeachment in One 30-minute Speech. Excerpts in italics with my bolds and images.
In approximately half an hour, Senator McConnell did what so many Democrats have claimed to do over these last several weeks: He meticulously applied the Constitution and historical precedent to the facts at hand and to the articles of impeachment the House passed on Wednesday.
Let’s start with the fact that Washington Democrats made up their minds to impeach President Trump since even before he was inaugurated. Here’s a reporter in April of 2016—April of 2016! “Donald Trump isn’t even the Republican nominee yet. But impeachment is already on the lips of pundits, newspaper editorials, constitutional scholars, and even a few members of Congress.”
Justifications for impeachment included rude behavior to professional athletes and reporters, changing Obama’s policy on transgender in the military. “A few months ago,” McConnell added, “Democrats’ three-year-long impeachment in search of articles found its way to the subject of Ukraine. House Democrats then embarked on the most rushed, least-thorough impeachment inquiry in modern history.”
McConnell then contrasts the “Get Trump” effort to the “mountains of evidence” gathered in both the Nixon and Clinton processes. The Nixon impeachment process required 14-months of hearings in addition to a special prosecutor. The Clinton impeachment followed years of an independent counsel investigation.
“House Democrats’ rushed and rigged process produced two articles of impeachment [which] are fundamentally unlike any articles that any prior House of Representatives have ever found,” McConnell explained. Article I involves the “timing of aid to Ukraine.” But the articles do not even purport to allege an actual crime. “Instead, they deploy the vague phrase ‘abuse of power’ to impugn the president’s actions in a general and indeterminate way.”
The Democrats might not be required to allege a crime, but McConnell warned, “history matters and precedent matters. And there were important reasons why every previous House of Representatives in American history restrained itself . . . from crossing the Rubicon.”
The vagueness of the “abuse of power” article is effectively a “mal-administration” charge rejected by the Constitution’s Framers because it would so easily be used to attack presidents over policy differences. If the Democrats are successful, all presidents henceforward will be impeached whenever the opposition party achieves power in the House.
“So there were powerful reasons why every House of Representatives for 230 years . . . required presidential impeachment to revolve around clear, recognizable crimes,” McConnell said. “That 230-year tradition died last night.”
Of the second article of impeachment, “Obstruction of Congress,” McConnell said, “What it really does is impeach the president for asserting executive privilege . . . a two-century-old constitutional tradition.” Presidents beginning with Washington have invoked it and courts repeatedly have recognized it. The House requested extraordinarily sensitive information—exactly the type of requests against which presidents from both parties have asserted privilege.
“It’s not a constitutional crisis for a House to want more information than a president wants to give up,” McConnell said. “That’s not a constitutional crisis! It’s a routine occurrence. Separation of powers is messy—by design. Here’s what should have happened . . . either the president and Congress negotiate a settlement or the third branch of government, the judiciary, addresses the dispute between the other two.”
That’s what happened in both the Nixon and Clinton impeachment inquiries. In both instances, the House went to court to resolve the disputes.
Following this process, “takes time, it’s inconvenient,” the majority leader said. “That’s actually the point. Due process is not meant to maximize the convenience of the prosecutor. It’s meant to protect the accused.”
McConnell shot down the suggestion that the Senate should force the president to give up more information to facilitate the trial. As I recently wrote (perhaps McConnell is a reader), impeachment means “ready for trial.” It’s not the proper role of the Senate to investigate and impeach the president. “Nobody made Chairman Schiff do this,” McConnell said of Schiff’s decision to forego court assistance to overcome the president’s lack of cooperation with the probe. “In Nixon, the courts were allowed to do their work. In Clinton, the courts were allowed to do their work.”
But these House Democrats, he added, “decided that due process is too much work.”
McConnell further challenged House Intelligence Committee Chairman Adam Schiff’s attempt to bully the executive branch out of asserting executive privilege. He quoted Schiff saying, “any action that forces us to litigate . . . will be considered further evidence of obstruction of justice.”
What the Democrats are trying to say, in effect, is that if the president asserts his constitutional rights, it’s just that much more evidence that he’s guilty.
McConnell further explained how the House impeachment effort harms separation of powers by attempting to make the president serve at the pleasure of Congress. But the process also infringes upon the Senate as an independent body.
The House can follow whatever process it chooses for impeachment. But it is now attempting to dictate how the Senate discharges its duties. The House has made a “demand that this body redo House Democrats’ homework for them. That the Senate should supplement Chairman Schiff’s work to make it more persuasive.” Further, the House could effectively swamp the Senate whenever it wants by passing flimsy impeachment articles to force a Senate trial.
Quoting Pelosi’s now-abandoned warnings that impeachment should not be done without an overwhelming and bipartisan case, McConnell said, “by the speaker’s own standard . . . she has failed the country. The case is not compelling, not overwhelming, and as a result not bipartisan.”
The weakness of the Democrats’ case is demonstrated by Senate Minority Leader Chuck Schumer’s calls to supplement the House’s shoddy work with new Senate-led investigations. And now, McConnell observed, it appears that the House is too afraid to send the articles of impeachment to the Senate where they rightly fear they will lose their case.
“It looks like the prosecutors are getting cold feet in front of the entire country,” McConnell added. “The articles aren’t just unproven, they’re also constitutionally incoherent.” If the Senate blesses either of these articles, “we will invite the impeachment of every future president.”
Pelosi was shell-shocked. Watch her stammer during her own press conference just a few minutes after McConnell concluded his speech. A friendly reporter asked whether the Republicans might accuse the House of playing games by holding onto the impeachment articles too long. Pelosi mumbled something about needing to know Senate trial procedures before she could appoint House managers. It’s a nonsense argument that she can’t even explain.
Trump Strikes Back:
The Democrats have their impeachment. There will be no Trump surrender. There’s nothing left for them to do but begin the long retreat.
Rich Lowry explains at NY Post Dems’ impeachment absurdities are making them look like the threat to democracy. Excerpts in italics with my bolds.
The bottom line is that after tsk-tsking Trump for refusing to say in advance that he’d accept the outcome of the 2016 election, Democrats have steadfastly refused to truly accept the 2016 result, allegedly the work of the Russians, and now are signaling they won’t accept next year’s election, either, should they lose again.
With every day that passes, the Democrats risk a growing perception that they themselves are a threat to the 2020 election.
The Democrats believe that the 2020 election is too important to be left to the voters. It’s obvious that President Trump withheld defense aid to Ukraine to pressure its president to commit to the investigations that he wanted, an improper use of his power that should rightly be the focus of congressional investigation and hearings.
Where the Democrats have gotten tangled up is trying to find a justification that supports the enormous weight of impeaching and removing a president for the first time in our history.
They’ve cycled through different arguments. First, Trump’s offense was said to be a quid pro quo — a phrase cast aside for supposedly being too Latin for the public to understand. Then it was bribery, which has lost ground lately, presumably because of the inherent implausibility of the charge.
Now, the emphasis is on Trump’s invitation to the Ukrainians to “meddle” and “interfere” in our elections.
This is posited to be an ongoing threat. Nancy Pelosi said in her statement calling on the House to draft articles of impeachment: “Our democracy is what is at stake. The president leaves us no choice but to act, because he is trying to corrupt, once again, the election for his own benefit. The president has engaged in abuse of power undermining our national security and jeopardizing the integrity of our elections.”
House Judiciary Committee Chairman Jerry Nadler said on “Meet the Press” last weekend that Trump has to be impeached “for posing the considerable risk that he poses to the next election.” Asked if he thinks the 2020 election will be on the up-and-up, he said, “I don’t know. The president, based on his past performance, will do everything he can to make it not a fair election.”
The gravamen of this case is that the election is too crucial to allow the incumbent president of the United States, who is leading in key battleground states and has some significant chance of winning, to run. In fact, the integrity of the election is so at risk that the US Senate should keep the public from rendering a judgment on Trump’s first term or deciding between him and, say, his nemesis Joe Biden.
Of course, it’s possible to imagine a circumstance where a president would indeed present such a grave risk to our elections that he’d have to be removed. This is a reason that we have the impeachment process in the first place.
But what’s the real harm that Trump’s foolhardy Ukraine adventure presented?
Let’s say that Ukraine had, in response to Trump pressure, actually announced an investigation into Burisma, a shady company that had in the past been under investigation. What would have happened? Would Joe Biden have been forced from the race? Would his numbers have collapsed in Nevada and South Carolina, his best early states? Would his numbers have changed anywhere?
No, it’s not even clear there would have been any additional domestic political scrutiny of Hunter Biden’s lucrative arrangement with Burisma, an issue that is dogging the former vice president on the campaign trail anyway — because his son’s payday was so clearly inappropriate.
The bottom line is that after tsk-tsking Trump for refusing to say in advance that he’d accept the outcome of the 2016 election, Democrats have steadfastly refused to truly accept the 2016 result, allegedly the work of the Russians, and now are signaling they won’t accept next year’s election, either, should they lose again.
Given their druthers, Trump wouldn’t be an option for the voters. They are rushing their impeachment, in part, because they know that as November 2020 approaches, it becomes steadily less tenable to portray the man who wants to run in an election as the threat to democracy and the people who want to stop him as its champions.
With every day that passes, the Democrats risk a growing perception that they themselves are a threat to the 2020 election.
The biased PC media in the US, Canada, and elsewhere took their sound bites from the leftist law professors whose opinion on Trump’s impeachment is: No Problem. High time. Completely unreported were the reasonable words from the fourth expert. Jonathan Turley wrote a 52 page brief providing the factual basis and historical context for assessing this present process. His advice is sound and wise, and still falls upon deaf ears. His written testimony is available in pdf format here
The synopsis below consists of some of his pointed paragraphs in italics with my bolds.
Twenty-one years ago, I sat here before you, Chairman Nadler, and other members of the Judiciary Committee to testify on the history and meaning of the constitutional impeachment standard as part of the impeachment of President William Jefferson Clinton. I never thought that I would have to appear a second time to address the same question with regard to another sitting president. Yet, here we are. Some elements are strikingly similar. The intense rancor and rage of the public debate is the same. It was an atmosphere that the Framers anticipated. Alexander Hamilton warned that charges of impeachable conduct “will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused.”
As with the Clinton impeachment, the Trump impeachment has again proven Hamilton’s words to be prophetic. The stifling intolerance for opposing views is the same. As was the case two decades ago, it is a perilous environment for a legal scholar who wants to explore the technical and arcane issues normally involved in an academic examination of a legal standard ratified 234 years ago. In truth, the Clinton impeachment hearing proved to be an exception to the tenor of the overall public debate. The testimony from witnesses, ranging from Arthur Schlesinger Jr. to Laurence Tribe to Cass Sunstein,contained divergent views and disciplines. Yet the hearing remained respectful and substantive as we all grappled with this difficult matter. I appear today in the hope that we can achieve that same objective of civil and meaningful discourse despite our good-faith differences on the impeachment standard and its application to the conduct of President Donald J. Trump.
I would like to start, perhaps incongruously, with a statement of three irrelevant facts. First, I am not a supporter of President Trump. I voted against him in 2016 and I have previously voted for Presidents Clinton and Obama. Second, I have been highly critical of President Trump, his policies, and his rhetoric, in dozens of columns. Third, I have repeatedly criticized his raising of the investigation of the Hunter Biden matter withthe Ukrainian president. These points are not meant to curry favor or approval. Rather they are meant to drive home a simple point: one can oppose President Trump’s policies or actions but still conclude that the current legal case for impeachment is not just woefully inadequate, but in some respects, dangerous, as the basis for the impeachment of an American president.
To put it simply, I hold no brief for President Trump. My personal and political views of President Trump, however, are irrelevant to my impeachment testimony, as they should be to your impeachment vote. Today, my only concern is the integrity and coherence of the constitutional standard and process of impeachment. President Trump will not be our last president and what we leave in the wake of this scandal will shape our democracy for generations to come. I am concerned about lowering impeachment standards to fit a paucity of evidence and an abundance of anger. If the House proceeds solely on the Ukrainian allegations, this impeachment would stand out among modern impeachments as the shortest proceeding, with the thinnest evidentiary record, and the narrowest grounds ever used to impeach a president.
That does not bode well for future presidents who are working in a country often sharply and, at times, bitterly divided. Although I am citing a wide body of my relevant academic work on these questions, I will not repeat that work in this testimony. Instead, I will focus on the history and cases that bear most directly on the questions facing this Committee. My testimony will first address relevant elements of the history and meaning of the impeachment standard. Second, I will discuss the past presidential impeachments and inquiries in the context of this controversy. Finally, I will address some of the specific alleged impeachable offenses raised in this process. In the end, I believe that this process has raised serious and legitimate issues for investigation. Indeed, I have previously stated that a quid pro quo to force the investigation of a political rival in exchange for military aid can be impeachable, if proven. Yet moving forward primarily or exclusively with the Ukraine controversy on this record would be as precarious as it would premature.
We have too many happy warriors in this impeachment on both sides. What we need are more objective noncombatants, members willing to set aside political passion in favor of constitutional circumspection. Despite our differences of opinion, I believe that this esteemed panel can offer a foundation for such reasoned and civil discourse. If we are to impeach a president for only the third time in our history, we will need to rise above this age of rage and genuinely engage in a civil and substantive discussion. It is to that end that my testimony is offered today.
II. A BRIEF OVERVIEW OF THE HISTORY AND MEANING OF THE IMPEACHMENT STANDARD
For the purposes of this hearing, it is Article II, Section 4 that is the focus of our attention and, specifically, the meaning of “Treason, Bribery, or other high Crimes and Misdemeanors.” It is telling that the actual constitutional standard is contained in Article II (defining executive powers and obligations) rather than Article I (defining legislative powers and obligations). The location of that standard in Article II serves as a critical check on service as a president, qualifying the considerable powers bestowed upon the Chief Executive with the express limitations of that office. It is in this sense an executive, not legislative, standard set by the Framers. For presidents, it is essential that this condition be clear and consistent so that they are not subject to the whim of shifting majorities in Congress. That was a stated concern of the Framers and led to the adoption of the current standard and, equally probative, the express rejection of other standards.
Colonial impeachments did occur with the same dubious standards and procedures that marked the English impeachments. Indeed, impeachments were used in the absence of direct political power. Much like parliamentary impeachments, thecolonial impeachments became a way of contesting Crown governance. . . Given this history, when the Framers met in Philadelphia to craft the Constitution, impeachment was understandably raised, including the Hastings impeachment, which had yet to go to trial in England. However, there was a contingent of Framers that viewed any impeachment of a president as unnecessary and even dangerous. Charles Pinckney of South Carolina, Gouverneur Morris of Pennsylvania, and Rufus King of Massachusettsopposed such a provision.
In the end, the Framers would reject various prior standards including “corruption,”“obtaining office by improper means”, betraying his trust to a foreign power,“negligence,” “perfidy,” “peculation,” and “oppression.” Perfidy (or lying) and peculation (self-dealing) are particularly interesting in the current controversy given similar accusations against President Trump in his Ukrainian comments and conduct.
However, the Framers clearly stated they adopted the current standard to avoid a vague and fluid definition of a core impeachable offense. The structure of the critical line cannot be ignored. The Framers cited two criminal offenses—treason and bribery—followed by a reference to“other high crimes and misdemeanors.” This is in contrast to when the Framers included“Treason, Felony, or other Crime” rather than “high crime” in the Extradition Clause ofArticle IV, Section 2. The word “other” reflects an obvious intent to convey that the impeachable acts other than bribery and treason were meant to reach a similar level of gravity and seriousness (even if they are not technically criminal acts). This was clearly adeparture from the English model, which was abused because of the dangerous fluidity of the standard used to accuse officials. Thus, the core of American impeachments was intended to remain more defined and limited. It is a discussion that should weigh heavily on the decision facing members of this House.
III. PRIOR PRESIDENTIAL IMPEACHMENTS AND THEIR RELEVANCE TO THE CURRENT INQUIRY
As I have stressed, it is possible to establish a case for impeachment based on a non-criminal allegation of abuse of power. However, although criminality is not required in such a case, clarity is necessary. That comes from a complete and comprehensive record that eliminates exculpatory motivations or explanations. The problem is that this is an exceptionally narrow impeachment resting on the thinnest possible evidentiary record. During the House Intelligence Committee proceedings, Democratic leaders indicated that they wanted to proceed exclusively or primarily on the Ukrainian allegations and wanted a vote by the end of December. I previously wrote that the current incomplete record is insufficient to sustain an impeachment case, a view recently voiced by the New York Times and other sources.
The problem is not simply that the record does not contain direct evidence of the President stating a quid pro quo, as Chairman Schiff has suggested. The problem is that the House has not bothered to subpoena the key witnesses who would have such direct knowledge. This alone sets a dangerous precedent. A House in the future could avoid countervailing evidence by simply relying on tailored records with testimony from people who offer damning presumptions or speculation. It is not enough to simply shrug and say this is “close enough for jazz” in an impeachment. The expectation, as shown by dozens of failed English impeachments, was that the lower house must offer a complete and compelling record. That is not to say that the final record must have a confession or incriminating statement from the accused. Rather, it was meant to be a complete record of the key witnesses that establishes the full range of material evidence. Only then could the body reach a conclusion on the true weight of the evidence—a conclusion that carries sufficient legitimacy with the public to justify the remedy of removal.
The history of American presidential impeachment shows the same restraint even when there were substantive complaints against the conduct of presidents. Indeed, some of our greatest presidents could have been impeached for acts in direct violation of their constitutional oaths of office. . . These efforts reflect the long history of impeachment being used as a way to amplify political differences and grievances. Such legislative throat clearing has been stopped by the House by more circumspect members before articles were drafted or passed. This misuse of impeachment has been plain during the Trump Administration.
I have known many of these members and commentators for years on a professional or personal basis. I do not question their sincere beliefs on the grounds for such impeachments, but we have fundamental differences in the meaning and proper use of this rarely used constitutional device. As I have previously written, such misuses of impeachment would convert our process into a type of no-confidence vote of Parliament. Impeachment has become an impulse buy item in our raging political environment. Slate has even featured a running “Impeach-O-Meter.” Despite my disagreement with many of President Trump’s policies and statements, impeachment was never intended to be used as a mid-term corrective option for a divisive or unpopular leader. To its credit, the House has, in all but one case, arrested such impulsive moves before the transmittal of actual articles of impeachment to the Senate. Indeed, only two cases have warranted submission to the Senate and one was a demonstrative failure on the part of the House in adhering to the impeachment standard. Those two impeachments—and the third near-impeachment of Richard Nixon—warrant closer examination and comparison in the current environment.
Comparison with Three Previous Presidential Impeachments
A comparison of the current impeachment inquiry with the three prior presidential inquiries puts a few facts into sharp relief. First, this is a case without a clear criminal act and would be the first such case in history if the House proceeds without further evidence. In all three impeachment inquiries, the commission of criminal acts by Johnson, Nixon, and Clinton were clear and established. With Johnson, the House effectively created a trapdoor crime and Johnson knowingly jumped through it. The problem was that the law—the Tenure in Office Act—was presumptively unconstitutional and the impeachment was narrowly built around that dubious criminal act. With Nixon, there were a host of alleged criminal acts and dozens of officials who would be convicted of felonies. With Clinton, there was an act of perjury that even his supporters acknowledged was a felony, leaving them to argue that some felonies “do not rise to the level” of an impeachment. Despite clear and established allegations of criminal acts committed by the president, narrow impeachments like Johnson and Clinton have fared badly. As will be discussed further below, the recently suggested criminal acts related to the Ukrainian controversy are worse off, being highly questionable from a legal standpoint and far from established from an evidentiary standpoint.
Second, the abbreviated period of investigation into this controversy is both problematic and puzzling. Although the Johnson impeachment progressed quickly after the firing of the Secretary of War, that controversy had been building for over a year and was actually the fourth attempted impeachment. Moreover, Johnson fell into the trap laid a year before in the Tenure of Office Act. The formal termination was the event that triggered the statutory language of the act and thus there was no dispute as to the critical facts. We have never seen a controversy arise for the first time and move to impeachment in such a short period. Nixon and Clinton developed over many months of investigation and a wide array of witness testimony and grand jury proceedings. In the current matter, much remains unknown in terms of key witnesses and underlying documents. There is no explanation why the matter must be completed by December. After two years of endless talk of impeachable and criminal acts, little movement occurred toward an impeachment. Suddenly the House appears adamant that this impeachment must be completed by the end of December. To be blunt, if the schedule is being accelerated by the approach of the Iowa caucuses, it would be both an artificial and inimical element to introduce into the process. This is not the first impeachment occurring during a political season. In the Johnson impeachment, the vote on the articles was interrupted by the need for some Senators to go to the Republican National Convention. The bifurcated vote occurred in May 1868 and the election was held just six months later.
Finally, the difference in the record is striking. Again, Johnson’s impeachment must be set aside as an outlier since it was based on a manufactured trap-door crime. Yet,even with Johnson, there was over a year of investigations and proceedings related to his alleged usurpation and defiance of the federal law. The Ukrainian matter is largely built around a handful of witnesses and a schedule that reportedly set the matter for a vote within weeks of the underlying presidential act. Such a wafer-thin record only magnifies the problems already present in a narrowly constructed impeachment. The question for the House remains whether it is seeking simply to secure an impeachment or actually trying to build a case for removal. If it is the latter, this is not the schedule or the process needed to build a viable case. The House should not assume that the Republican control of the Senate makes any serious effort at impeachment impractical or naïve. All four impeachment inquiries have occurred during rabid political periods. However, politicians can on occasion rise to the moment and chose principle over politics. Indeed, in the Johnson trial, senators knowingly sacrificed their careers to fulfill their constitutional oaths. If the House wants to make a serious effort at impeachment, it should focus on building the record to raise these allegations to the level of impeachable offenses and leave to the Senate the question of whether members will themselves rise to the moment that follows.
IV. THE CURRENT THEORIES OF IMPEACHABLE CONDUCT AGAINST PRESIDENT DONALD J. TRUMP
While all three acts in the impeachment standard refer to criminal acts in modern parlance, it is clear that “high crimes and misdemeanors” can encompass non-criminal conduct. It is also true that Congress has always looked to the criminal code in the fashioning of articles of impeachment. The reason is obvious. Criminal allegations not only represent the most serious forms of conduct under our laws, but they also offer an objective source for measuring and proving such conduct. We have never had a presidential impeachment proceed solely or primarily on an abuse of power allegation, though such allegations have been raised in the context of violations of federal or criminal law. Perhaps for that reason, there has been a recent shift away from a pure abuse of power allegation toward direct allegations of criminal conduct. That shift, however, has taken the impeachment process far outside of the relevant definitions and case law on these crimes.
It is to those allegations that I would now like to turn. At the outset, however, two threshold issues are worth noting. First, this hearing is being held before any specific articles have been proposed. During the Clinton impeachment hearing, we were given a clear idea of the expected articles of impeachment and far greater time to prepare analysis of those allegations. The House leadership has repeatedly indicated that they are proceeding on the Ukrainian controversy and not the various alleged violations or crimes alleged during the Russian investigation. Recently, however, Chairman Schiff indicated that there might be additional allegations raised while continuing to reference the end of December as the working date for an impeachment vote. Thus, we are being asked to offer a sincere analysis on the grounds for impeachment while being left in the dark. My testimony is based on the public statements regarding the Ukrainian matter, which contain references to four alleged crimes and, most recently, a possible compromise proposal for censure.
Second, the crimes discussed below were recently raised as part of the House Intelligence Committee hearings as alternatives to the initial framework as an abuse of power. There may be a desire to refashion these facts into crimes with higher resonance with voters, such as bribery. In any case, Chairman Schiff and committee members began to specifically ask witnesses about elements that were pulled from criminal cases. When some of us noted that courts have rejected these broader interpretations or that there are missing elements for these crimes, advocates immediately shifted to a position that it really does not matter because “this is an impeachment.” This allows members to claim criminal acts while dismissing the need to actually support such allegations. If that were the case, members could simply claim any crime from treason to genocide. While impeachment does encompass non-crimes, including abuse of power, past impeachments have largely been structured around criminal definitions. The reason is simple and obvious. The impeachment standard was designed to be a high bar and felonies often were treated as inherently grave and serious. Legal definitions and case law also offer an objective and reliable point of reference for judging the conduct of judicial and executive officers. It is unfair to claim there is a clear case of a crime like bribery and simultaneously dismiss any need to substantiate such a claim under the controlling definitions and meaning of that crime. After all, the common mantra that “no one is above the law” is a reference to the law applied to all citizens, even presidents. If the House does not have the evidence to support a claim of a criminal act, it should either develop such evidence or abandon the claim. As noted below, abandoning such claims would still leave abuse of power as a viable ground for impeachment. It just must be proven.
While the House Intelligence Committee hearings began with references to“abuse of power” in the imposition of a quid pro quo with Ukraine, it ended with repeated references to the elements of bribery. After hearing only two witnesses, House Speaker Nancy Pelosi declared witnesses offered “devastating” evidence that“corroborated” bribery. This view was developed further by House Intelligence Committee Chairman Adam Schiff who repeatedly returned to the definition of bribery while adding the caveat that, even if this did not meet the legal definition of bribery, it might meet a prior definition under an uncharacteristically originalist view: “As the founders understood bribery, it was not as we understand it in law today. It was much broader. It connoted the breach of the public trust in a way where you’re offering official acts for some personal or political reason, not in the nation’s interest.” The premise of the bribery allegations is that President Trump was soliciting a bribe from Ukraine when he withheld either a visit at the White House or military aid in order to secure investigations into the 2016 election meddling and the Hunter Biden contract by Ukraine. On its face, the bribery theory is undermined by the fact that Trump released the aid without the alleged pre-conditions.
However, the legal flaws in this theory are more significant than such factual conflicts. As I have previously written, this record does not support a bribery charge in either century. Before we address this bribery theory, it is important to note that any criminal allegation in an impeachment must be sufficiently clear and recognized to serve two purposes. First, it must put presidents on notice of where a line exists in the range of permissible comments or conduct in office. Second, it must be sufficiently clear to assure the public that an impeachment is not simply an exercise of partisan creativity in rationalizing a removal of a president. Neither of these purposes was satisfied in the Johnson impeachment where the crime was manufactured by Congress. This is why past impeachments focused on establishing criminal acts with reference to the criminal code and controlling case law. Moreover, when alleging bribery, it is the modern definition that is the most critical since presidents (and voters) expect clarity in the standards applied to presidential conduct. Rather than founding these allegations on clear and recognized definitions, the House has advanced a capacious and novel view of bribery to fit the limited facts. If impeachment is reduced to a test of creative redefinitions of crimes, no president will be confident in theirability to operate without the threat of removal. Finally, as noted earlier, dismissing the need to establish criminal conduct by arguing an act is “close enough for impeachment,”is a transparent and opportunistic spin. This is not improvisational jazz. “Close enough”is not nearly enough for a credible case of impeachment.
Under the common law definition, bribery remains relatively narrow and consistently defined among the states. “The core of the concept of a bribe is an inducement improperly influencing the performance of a public function meant to be gratuitously exercised.”
The definition does not lend itself to the current controversy. President Trump can argue military and other aid is often used to influence other countries in taking domestic or international actions. It might be a vote in the United Nations or an anti-corruption investigation within a nation. Aid is not assumed to be“gratuitously exercised” but rather it is used as part of foreign policy discussions and international relations. Moreover, discussing visits to the White House is hardly the stuff of bribery under any of these common law sources. Ambassador Sondland testified that the President expressly denied there was a quid pro quo and that he was never told of such preconditions. However, he also testified that he came to believe there was a quid pro quo, not for military aid, but rather for the visit to the White House: “Was there a‘quid pro quo? With regard to the requested White House call and White House meeting, the answer is yes.” Such visits are routinely used as bargaining chips and not“gratuitously exercised.” As for the military aid, the withholding of the aid is difficult to fit into any common law definition of a bribe, particularly when it was ultimately provided without the satisfaction of the alleged pre-conditions.
Various public corruption and bribery provisions are currently on the books, but the standard provision is found in 18 U.S.C. § 201 which allows for prosecution when “[a] public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or acceptanything of value personally or for any other person or entity, in return for … beinginfluenced in the performance of any official act.” While seemingly sweeping in its scope, the definition contains narrowing elements on the definition of what constitutes “a thing of value,” an “official act,” and “corrupt intent.” The Supreme Court has repeatedly narrowed the scope of the statutory definition of bribery, including distinctions with direct relevance to the current controversy.
In McDonnell v. United States, the Court overturned the conviction of former Virginia governor Robert McDonnell. McDonnell and his wife were prosecuted for bribery under the Hobbs Act, applying the same elements as found in Section 201(a)(3). They were accused of accepting an array of loans, gifts, and other benefits from a businessman in return for McDonnell facilitating key meetings, hosting events, and contacting government officials on behalf of the businessman who ran a company called Star Scientific. The benefits exceeded $175,000 and the alleged official acts were completed. Nevertheless, the Supreme Court unanimously overturned the conviction. As explained by Chief Justice Roberts:
“[O]ur concern is not with tawdry tales of Ferraris, Rolexes, and ballgowns. It is instead with the broader legal implications of the Government’s boundless intrepretation of the federal bribery statute. A more limited interpretation of the term ‘official act’ leaves ample room for prosecuting corruption, while comporting with the text of the statute andthe precedent of this Court.”
The opinion is rife with references that have a direct bearing on the current controversy. This includes the dismissal of meetings as insufficient acts. It also included the allegations that “recommending that senior government officials in the [Governor’sOffice] meet with Star Scientific executives to discuss ways that the company’s products could lower health care costs.” While the meeting and contacts discussed by Ambassador Sondland as a quid pro quo are not entirely the same, the Court refused to recognize that “nearly anything a public official does—from arranging a meeting to inviting a guest toan event—counts as a quo.”
Applying McDonnell and other cases to the current controversy undermines the bribery claims being raised. The Court noted that an “official act” is a decision or action on a ‘question, matter, cause, suit, proceeding or controversy.’ The ‘question, matter, cause, suit, proceeding or controversy’ must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is ‘pending’ or ‘may by law be brought’ before a public official.”
The discussion of a visit to the White House is facially inadequate for this task, as it is not a formal exercise of governmental power. However, withholding of military aid certainly does smack of a “determination before an agency.” Yet, that “quo” breaks down on closer scrutiny, even before getting to the question of a “corrupt intent.” Consider the specific act in this case. As the Ukrainians knew, Congress appropriated the $391 millionin military aid for Ukraine and the money was in the process of being apportioned. Witnesses before the House Intelligence Committee stated that it was not uncommon to have delays in such apportionment or for an Administration to hold back money for a period longer than the 55 days involved in these circumstances. Acting Chief of Staff Mike Mulvaney stated that the White House understood it was required to release the money by a certain date absent a lawful reason barring apportionment. That day was the end of September for the White House. Under the 1974 Impoundment Control Act (ICA),reserving the funds requires notice to Congress. This process has always been marked by administrative and diplomatic delays. As the witnesses indicated, it is not always clear why aid is delayed. Arguably, by the middle of October, the apportionment of the aid was effectively guaranteed. It is not contested that the Administration could delay the apportionment to resolve concerns over how the funds would be effectively used or apportioned.
It is certainly fair to question the non-budgetary reasons for the delay in the release of the funds. Yet, the White House was largely locked into the statutory andregulatory process for obligating the funds by the end of September. Even if the President sought to mislead the Ukrainians on his ability to deny the funding, there is no evidence of such a direct statement in the record. Indeed, Ambassador Taylor testified that he believed the Ukrainians first raised their concerns over a pre-condition on August 31 withthe publication of the Politico article on the withholding of the funds. The aid was released roughly ten days later, and no conditions were actually met. The question remains what the “official act” was for this theory given the deadline for aid release. Indeed, had a challenge been filed over the delay before the end of September, it would have most certainly been dismissed by a federal court as premature, if not frivolous.Even if the “official act” were clear, any bribery case would collapse on the current lack of evidence of a corrupt intent.
Finally, the “boundless interpretations of the bribery statutes” rejected in McDonnell pale in comparison to the effort to twist these facts into the elements of that crime. I am not privy to conversations between heads of state, but I expect many prove to be fairly freewheeling and informal at points. I am confident that such leaders often discuss politics and the timing of actions in their respective countries.
If this conversation is a case of bribery, we could have marched every living president off to the penitentiary.
Presidents often use aid as leverage and seek to advance their administrations in the timing or content of actions. The media often discusses how foreign visits are used for political purposes, particularly as elections approach. The common reference to an “October surprise” reflects this suspicion that presidents often use their offices, and foreign policy, to improve their image. If these conversations are now going to be reviewed under sweeping definitions of bribery, the chilling effect on future presidents would be perfectly glacial. The reference to the Hunter Biden deal with Burisma should never have occurred and is worthy of the criticism of President Trump that it has unleashed. However, it is not a case of bribery, whether you are adopting the view of an eighteenth century, or of a twenty-first century prosecutor. As a criminal defense attorney, I would view such an allegation from a prosecutor to be dubious to the point of being meritless.
B. Obstruction of Justice
Another crime that was sporadically mentioned during the House Intelligence hearings was obstruction of justice or obstruction of Congress.
Once again, with only a few days to prepare this testimony and with no public report on the specific allegations, my analysis remains mired in uncertainty as to any plan to bring such a claim to the foundational evidence for the charge. Most of the references to obstruction have been part of a Ukraine-based impeachment plan that does not include any past alleged crimes from the Russian investigation. I will therefore address the possibility of a Ukraine-related obstruction article of impeachment. However, as I have previously written, I believe an obstruction claim based on the Mueller Report would equally at odds with the record and the controlling case law.
The use of an obstruction theory from the Mueller Report would be unsupportable in the House and unsustainable in the Senate. Once again, the lack of information (just weeks before an expected impeachment vote) on the grounds for impeachment is both concerning and challenging. It is akin to being asked to diagnose a patient’s survivability without knowing his specific illness. Obstruction of justice is a more broadly defined crime than bribery and often overlaps with other crimes like witness tampering, subornation, or specific acts designed to obstruct a given proceeding. There are many federal provisions raising forms o fobstruction that reference parallel crimes. Thus, influencing a witness is a standalone crime and also a form of obstruction under 18 U.S.C. 1504. In conventional criminal cases, prosecutions can be relatively straightforward, such as cases of witness intimidation under 18 U.S. 1503.
Of course, this is no conventional case. The obstruction claims leveled against President Trump in the Ukrainian context have centered on two main allegations. First, there was considerable discussion of the moving of the transcript of the call with President Zelensky to a classified server as a possible premeditated effort to hide evidence. Second, there have been repeated references to the “obstruction” of President Trump by invoking executive privileges or immunities to withhold witnesses and documents from congressional committees.
In my view, neither of these general allegations establishes a plausible case of criminal obstruction or a viable impeachable offense. The various obstruction provisions generally share common elements. 18 U.S.C. §1503, for example, broadly defines the crime of “corruptly” endeavoring “to influence, obstruct or impede the due administration of justice.” This “omnibus” provision, however, is most properly used for judicial proceedings such as grand jury investigations,and the Supreme Court has narrowly construed its reach. There is also 18 U.S.C. §1512(c), which contains a “residual clause” in subsection (c)(2), which reads:(c) Whoever corruptly– (1) alters, destroys, mutilates, or conceals arecord, document, or other object, or attempts to do so, with the intent toimpair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so [is guilty of the crime of obstruction].[emphasis added].
There is no evidence that President Trump acted with the corrupt intent required for obstruction of justice on the record created by the House Intelligence Committee.
Let us start with the transfer of the file. The transfer of the transcript of the file was raised as a possible act of obstruction to hide evidence of a quid pro quo. However, the nefarious allegations behind the transfer were directly contradicted by Tim Morrison, the former Deputy Assistant to the President and Senior Director for Europe and Russia on the National Security Council. Morrison testified that he was the one who recommended that the transcript be restricted after questions were raised about President Trump’srequest for investigations.
Absent additional testimony or proof that Morrison has perjured himself, the allegation concerning the transfer of the transcript would seem entirely without factual support, let alone legal support, as a criminal obstructive act. Most recently, the members have focused on an obstruction allegation centering on the instructions of the White House to current and former officials not to testify due to the expected assertions of executive privilege and immunity. Notably, the House has elected not to subpoena core witnesses with first-hand evidence on any quid pro quo in the Ukraine controversy. Democratic leaders have explained that they want a vote by the end of December, and they are not willing to wait for a decision from the court system as to the merits of these disputes.
In my view, that position is entirely untenable and abusive in an impeachment. Essentially, these members are suggesting a president can be impeached for seeking a judicial review of a conflict over the testimony of high-ranking advisers to the President over direct communications with the President. The position is tragically ironic. The Democrats have at times legitimately criticized the President for treating Article II as a font of unilateral authority. Yet, they are now doing the very same thing in claiming Congress can demand any testimony or documents and then impeach any president who dares to go to the courts. Magnifying the flaws in this logic is the fact that the House has set out one of the shortest periods in history for this investigation—a virtual rocket docket for impeachment. House leaders are suggesting that they will move from notice of an alleged impeachable act at the beginning of September and adopt articles of impeachment based on controversy roughly 14 weeks later.
On this logic, the House could give a president a week to produce his entire staff for testimony and then impeach him when he seeks review by a federal judge.
With such review, the courts stand with Congress on the issue of disclosure and ultimately obstruction in congressional investigations. Moreover, such cases can be expedited in the courts. In the Nixon litigation, courts moved those cases quickly to the Supreme Court. In contrast, the House leaderships have allowed two months to slip away without using its subpoena authority to secure the testimony of critical witnesses. The decision to adopt an abbreviated schedule for the investigation and not to seek to compel such testimony is a strategic choice of the House leadership. It is not the grounds for an impeachment. If the House moves forward with this impeachment basis, it would be repeating the very same abusive tactics used against President Andrew Johnson.
The obstruction allegation is also undermined by the fact that many officials opted to testify, despite the orders from the President that they should decline. These include core witnesses in the impeachment hearings, like National Security Council Director of European Affairs Alexander Vindman, Ambassador William Taylor, Ambassador Gordon Sondland, Deputy Assistant Secretary of State George Kent, Acting Assistant Secretary of State Philip Reeker, Under Secretary of State David Hale, Deputy Associate Director of the Office of Management and Budget Mark Sandy, and Foreign Service Officer David Holmes. All remain in federal service in good standing. Thus, the President has sought judicial review without taking disciplinary actions against those who defied his instruction not to testify.
As noted earlier, extortion and bribery cases share a common law lineage. Under laws like the Hobbs Act, prosecutors can allege different forms of extortion. The classic form of extortion is coercive extortion to secure property “by violence, force, or fear.” Even if one were to claim the loss of military aid could instill fear in a country, that is obviously not a case of coercive extortion as that crime has previously been defined. Instead, it would presumably be alleged as extortion “under color of official right.”
Clearly, both forms of extortion have a coercive element, but the suggestion is that Trump was “trying to extort” the Ukrainians by withholding aid until they agreed to open investigations. The problem is that this allegation is no closer to the actual crime of extortion than it is to its close cousin bribery. The Hobbs Act defines extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear or under color of official right.” The use of anything “of value” today would be instantly rejected. Extortion cases involve tangible property, not possible political advantage.
In this case, Trump asked for cooperation with the Justice Department in its investigation into the origins of the FBI investigation on the 2016 election. As noted before, that would make a poor basis for any criminal or impeachment theory. The Biden investigation may have tangible political benefits, but it is not a form of property. Indeed, Trump did not know when such an investigation would be completed or what it might find. Thus, the request was for an investigation that might not even benefit Trump.
D. Campaign Finance Violation
Some individuals have claimed that the request for investigations also constitutes a felony violation of the election finance laws. Given the clear language of that law and the controlling case law, there are no good-faith grounds for such an argument. To put it simply, this dog won’t hunt as either a criminal or impeachment matter. U.S.C. section30121 of Title 52 states: “It shall be unlawful for a foreign national, directly or indirectly,to make a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a federal, state, or local election.”
However, the Justice Department already reviewed the call and correctly concluded it was not a federal election violation.
This determination was made by the prosecutors who make the decisions on whether to bring such cases. The Justice Department concluded that the call did not involve a request for a “thing of value”under the federal law. Congress would be alleging a crime that has been declared not to be a crime by career prosecutors. Such a decision would highlight the danger of claiming criminal acts, while insisting that impeachment does not require actual crimes.
There is also the towering problem of using federal campaign laws to regulate communications between the heads of state. Any conversation between heads of state are inherently political. Every American president facing reelection schedules foreign trips and actions to advance their political standing. Indeed, such trips and signing ceremonies are often discussed as transparently political decisions by incumbents. Under the logic of this theory, any request that could benefit a president is suddenly an unlawful campaign finance violation valued arbitrarily at $25,000 or more. Such a charge would have no chance of surviving a threshold of motion to dismiss.
E. Abuse of Power
The Ukraine controversy was originally characterized not as one of these forced criminal allegations, but as a simple abuse of power. As I stated from the outset of this controversy, a president can be impeached for abuses of power. In Federalist #65,Alexander Hamilton referred to impeachable offenses as “those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”
The problem is that we have never impeached a president solely or even largely on the basis of a non-criminal abuse of power allegation. There is good reason for that unbroken record. Abuses of power tend to be even less defined and more debatable as a basis for impeachment than some of the crimes already mentioned. Again, while a crime is not required to impeach, clarity is necessary. In this case, there needs to be clear and unequivocal proof of a quid pro quo. That is why I have been critical of how this impeachment has unfolded. I am particularly concerned about the abbreviated schedule and thin record that will be submitted to the full house. Unlike the other dubious criminal allegations, the problem with the abuse of power allegation is its lack of foundation. As I have previously discussed, there remain core witnesses and documents that have not been sought through the courts. The failure to seek this foundation seems to stem from an arbitrary deadline at the end of December. Meeting that deadline appears more important than building a viable case for impeachment. Two months have been wasted that should have been put toward litigating access to this missing evidence.
The choice remains with the House. It must decide if it wants a real or recreational impeachment.
Moreover, presidents often discuss political issues with their counterparts and make comments that are troubling or inappropriate. However,contemptible is not synonymous with impeachable. Impeachment is not a vehicle to monitor presidential communications for such transgressions. That is why making the case of a quid pro quo is so important – a case made on proof, not presumptions. While critics have insisted that there is no alternative explanation, it is willful blindness to ignore the obvious defense. Trump can argue that he believed the Obama Administration failed to investigate a corrupt contract between Burisma and Hunter Biden. He publicly called for the investigation into the Ukraine matters. Requesting an investigation is not illegal any more than a leader asking for actions from their counterparts during election years.
It is certainly true that both criminal and impeachment cases can be based on circumstantial evidence, but that is less common when direct evidence is available but unsecured in the investigation. Proceeding to a vote on this incomplete record is a dangerous precedent to set for this country. Removing a sitting President is not supposed to be easy or fast. It is meant to be thorough and complete. This is neither.
F.The Censure Option
Finally, there is one recurring option that was also raised during the Clinton impeachment: censure. I have been a long critic of censure as a part of impeachment inquiries and I will not attempt to hide my disdain for this option. It is not a creature of impeachment and indeed is often used by members as an impeachment-lite alternative for those who do not want the full constitutional caloric load of an actual impeachment. Censure has no constitutional foundation or significance. Noting the use of censure in a couple of prior cases does not make it precedent any more than Senator Arlen Specter’s invocation of the Scottish “Not Proven” in the Clinton trial means that we now have a third option in Senate voting. If the question is whether Congress can pass a resolution with censure in its title, the answer is clearly yes. However, having half of Congress express their condemnation for this president with the other half opposing such a condemnation will hardly be news to most voters. I am agnostic about such extra-constitutional options except to caution that members should be honest and not call such resolutions part of the impeachment process.
Allow me to be candid in my closing remarks. I get it. You are mad. The President is mad. My Democratic friends are mad. My Republican friends are mad. My wife is mad. My kids are mad. Even my dog is mad . . .and Luna is a golden doodle and they are never mad. We are all mad and where has it taken us?
Will a slipshod impeachment make us less mad or will it only give an invitation for the madness to follow in every future administration?
That is why this is wrong. It is not wrong because President Trump is right. His call was anything but “perfect” and his reference to the Bidens was highly inappropriate. It is not wrong because the House has no legitimate reason to investigate the Ukrainian controversy. The use of military aid for a quid pro quo to investigate one’s political opponent, if proven, can be an impeachable offense. It is not wrong because we are in an election year. There is no good time for an impeachment, but this process concerns the constitutional right to hold office in this term,not the next.
No, it is wrong because this is not how an American president should be impeached. For two years, members of this Committee have declared that criminal and impeachable acts were established for everything from treason to conspiracy to obstruction. However, no action was taken to impeach. Suddenly, just a few weeks ago, the House announced it would begin an impeachment inquiry and push for a final vote in just a matter of weeks. To do so, the House Intelligence Committee declared that it would not subpoena a host of witnesses who have direct knowledge of any quid pro quo. Instead, it will proceed on a record composed of a relatively small number of witnesses with largely second-hand knowledge of the position. The only three direct conversations with President Trump do not contain a statement of a quid pro quo and two expressly deny such a pre-condition. The House has offered compelling arguments why those two calls can be discounted by the fact that President Trump had knowledge of the underlying whistleblower complaint.
However, this does not change the fact that it is moving forward based on conjecture, assuming what the evidence would show if there existed the time or inclination to establish it.
This is not a case of the unknowable. It is a case of the peripheral. The House testimony is replete with references to witnesses like John Bolton, Rudy Giuliani, and Mike Mulvaney who clearly hold material information. To impeach a president on such a record would be to expose every future president to the same type of inchoate impeachment. Principle often takes us to a place where we would prefer not to be. That was the place the “Republican Recusants” found themselves in 1868 when sitting in judgment of a president they loathed and despised. However, they took an oath not to Andrew Johnson, but to the Constitution. One of the greatest among them, Lyman Trumbull (R-Ill.) explained his fateful decision to vote against Johnson’s impeachment charges even at the cost of his own career: “Once set the example of impeaching a President for what, when the excitement of the hour shall have subsided, will be regarded as insufficient causes … no future President will be safe who happens to differ with the majority of the House and two-thirds of the Senate …I tremble for the future of my country. I cannot be an instrument to produce such a result; and at the hazard of the ties even of friendship and affection,till calmer times shall do justice to my motives, no alternative is left me…”
Trumbull acted in the same type of age of rage that we have today. He knew that raising a question about the underlying crime or the supporting evidence would instantly be condemned as approving of the underlying conduct of a president. In an age of rage, there seems to be no room for nuance or reservation. Yet, that is what the Constitution expects of us. Expects of you. For generations, the seven Republicans who defected to save President Johnson from removal have been heralded as profiles of courage. In recalling the moment he was called to vote, Senator Edmund Ross of Kansas said he “almost literally looked downinto my open grave.” He jumped because the price was too great not to.
Such moments are easy to celebrate from a distance of time and circumstance. However, that is precisely the moment in which you now find yourself. “When the excitement of the hour [has] subsided” and “calmer times” prevail, I do not believe that this impeachment will be viewed as bringing credit upon this body. It is possible that a case for impeachment could be made, but it cannot be made on this record. To return to Wordsworth, the Constitution is not a call to arms for the “Happy Warriors.” The Constitution calls for circumspection, not celebration, at the prospect of the removal of an American president. It is easy to allow one’s “judgment [to be] affected by your moral approval of the lines” in an impeachment narrative. But your oath demands more, even personal and political sacrifice, in deciding whether to impeach a president for only the third time in the history of this Republic.
In this age of rage, many are appealing for us to simply put the law aside and “just do it” like this is some impulse-buy Nike sneaker. You can certainly do that. You can declare the definitions of crimes alleged are immaterial and this is an exercise of politics, not law. However, the legal definitions and standards that I have addressed in my testimony are the very thing dividing rage from reason. . .Both sides in this controversy have demonized the other to justify any measure in defense. Perhaps that is the saddest part of all of this. We have forgotten the common article of faith that binds each of us to each other in our Constitution. However, before we cut down the trees so carefully planted by the Framers, I hope you consider what you will do when the wind blows again . . . perhaps for a Democratic president. Where will you stand then “the laws all being flat?”
Thank you again for the honor of testifying before you today. I am happy to answer any questions that you may have.
Postscript: Turley’s balanced and reasonable advice has also been met with condemnation and distortion. He responds with an article at The Hill Democrats offering passion over proof in Trump impeachment. Excerpt.
In my testimony Wednesday, I lamented that, as in the impeachment of President Clinton from 1998 to 1999, there is an intense “rancor and rage” and “stifling intolerance” that blinds people to opposing views. My call for greater civility and dialogue may have been the least successful argument I made to the committee. Before I finished my testimony, my home and office were inundated with threatening messages and demands that I be fired from George Washington University for arguing that, while a case for impeachment can be made, it has not been made on this record.
In my testimony Wednesday, I stated repeatedly, as I did 21 years ago, that a president can be impeached for noncriminal acts, including abuse of power. I made that point no fewer that a dozen times in analyzing the case against Trump and, from the first day of the Ukraine scandal, I have made that argument both on air and in print. Yet various news publications still excitedly reported that, in an opinion piece I wrote for the Washington Post five years ago, I said, “While there is a high bar for what constitutes grounds for impeachment, an offense does not have to be indictable,” and it could include “serious misconduct or a violation of public trust.”
That is precisely what I have said regarding Trump. You just need to prove abuse of power. My objection is not that you cannot impeach Trump for abuse of power but that this record is comparably thin compared to past impeachments and contains conflicts, contradictions, and gaps including various witnesses not subpoenaed. I suggested that Democrats drop the arbitrary schedule of a vote by the end of December and complete their case and this record before voting on any articles of impeachment. In my view, they have not proven abuse of power in this incomplete record.
As I said 21 years ago, a president can still be impeached for abuse of power without a crime, and that includes Trump. But that makes it more important to complete and strengthen the record of such an offense, as well as other possible offenses. I remain concerned that we are lowering impeachment standards to fit a paucity of evidence and an abundance of anger. Trump will not be our last president. What we leave in the wake of this scandal will shape our democracy for generations to come. These “agitated passions” will not be a substitute for proof in an impeachment. We currently have too much of the former and too little of the latter.
At the New Criterion James Piereson explains in his article Breaking the wrong ground. Using impeachment as an election strategy is only the latest breaking of political norms that kept the US functional in the past
With the impeachment charade in mind, it is useful to review the various political and constitutional “norms” that have been blasted away in recent decades, mostly due to hyper-partisan conduct by Democrats, with encouragement and cover from the mainstream media.
First: It now appears that a president will never again be able to appoint a justice to the Supreme Court or judges to lower level federal courts, unless he or she has a partisan majority in the Senate.
That is a new development, brought into being by no-holds-barred campaigns against Robert Bork, Clarence Thomas, Brett Kavanaugh, and many nominees for judgeships on lower federal courts. Democrats routinely vote in unison against Republican nominees; that is not reciprocally true, or at least has not been true until recently. For example, Justice Scalia (appointed by President Reagan) was confirmed by a vote of 98 to 0 in 1986, while Justices Ginsburg and Breyer, nominated by President Clinton in 1993 and 1994, were confirmed by votes of 97 to 3 and 87 to 9 (respectively). Those kinds of consensual votes for justices and judges are unlikely to happen again anytime soon—and are in fact beyond the realm of possibility in the current environment. Democrats signaled last year prior to the 2018 elections that they would block all judicial confirmations if they won a majority of seats in the Senate. Republicans, as it happened, maintained the majority, and have proceeded to confirm justices and judges, with little or no support from Democratic members. We are bound to reach a point when the number of justices on the Supreme Court actually shrinks, because agreement cannot be reached to appoint new justices when incumbents retire or die.
Second, it further appears that a president cannot even confirm a cabinet unless he or she has a partisan majority in the Senate.
Democrats established this precedent by voting in unison against President Trump’s cabinet nominees, with the exception of Secretary of Defense Mattis, who won a near-unanimous vote. Democrats in the Senate voted almost unanimously against Jeff Sessions (Attorney General), Mike Pompeo (Director of Central Intelligence), Rex Tillerson (Secretary of State), Betsy DeVos (Education), Steven Mnuchin (Treasury), Mike Mulvaney (Office of Management and Budget), and Scott Pruitt (Environmental Protection Agency). William Barr was subsequently confirmed as Attorney General in 2019 by a vote of 54 to 45, with but four Democrats voting in his favor. If Republicans did not have a majority, they would not have been able to confirm any of President Trump’s nominations (with the exception of Gen. Mattis).
What do Democrats think is going to happen when they elect a president, but fail to carry a majority in the Senate? Republicans will undoubtedly behave in that situation just as Democrats have acted in relation to President Trump: they will veto his cabinet nominations, or delay them indefinitely to keep the incumbent president from forming a working government. That, after all, is what Democrats hoped to do to President Trump—and they are still doing it. Turnabout is fair play, and in politics is often necessary to deter adversaries from “upping the ante” by adopting more extreme tactics of attack. Looking ahead, there is little chance, for example, that Republicans will vote in the future to confirm a Democratic nominee for Attorney General, just as Democrats tried to block Sessions and Barr (and John Ashcroft and Alberto Gonzales before them). By contrast, Eric Holder, President Obama’s nominee for Attorney General, and a highly partisan figure, was confirmed by a comfortable bi-partisan vote.
It is unlikely that Republicans will be quite so generous in regard to future nominations for Attorney General, in view of the manner in which Democrats treated Sessions and Barr. That will be the case also in regard to other sensitive policymaking positions—such as the head of the epa or director of the cia.
In this way the United States is moving toward a bastardized form of parliamentary government, in that the President must have a majority in the Senate to conduct the business of government and the other party is no longer the opposition party (putting forth alternative policies) but is rather the “obstructionist” party.
Third, it also appears that there is no longer any realistic way to curb government spending without risking a government shutdown.
Neither party wishes to face this, especially Republicans, who have been routinely blamed for shutdowns by Democrats and the mainstream media. It may be possible to constrain federal spending with a unified government, but that would require sixty votes in the Senate, which neither party is likely to win anytime soon. Thus, as a consequence of party warfare, the spending will continue, the debt and deficits will accumulate, until there is a crisis of some kind involving inflation, interest rates, the depreciation of the dollar, or some such event that will require decisive action in response, albeit in an environment of distrust and dissensus that will make any such response difficult to carry out. In this way hyper-partisan government equals irresponsible government.
Fourth, in international affairs, it is going to be difficult in the future for the United States to mount the kinds of costly interventions carried out in Afghanistan and Iraq.
A fair amount of bi-partisan consensus is required to launch such operations, much less to continue them under difficult circumstances. The United States once built a rough bi-partisan consensus on its international role in the early years of the Cold War. It is probably fortunate that the Soviet Union collapsed when it did, because political agreement in the United States over the Cold War was bound to collapse sooner or later. Today, however, any intervention launched by one party will be immediately opposed by the other; and when things become difficult in a theater of conflict, the opposition party will exploit it for electoral gain. Any future president, aware of such political risks, will understand that it would be foolhardy to embark on any such international venture. Through this process the United States will gradually withdraw from the prominent international role it played during the Cold War and subsequent decades. The wider world will come to understand this—they will understand that President Trump is not an aberration but a harbinger of things to come—and will begin to make independent arrangements to protect their security. That might be a good thing; on the other hand, it will probably make for a more unstable world.
Fifth, and finally, Democrats have now turned impeachment into a partisan electoral strategy which, if successful, will establish a precedent for future investigations to come.
This is the kind of stratagem that is bound to come back to haunt Democrats whenever they elect a president and do not have a majority in the House of Representatives. What is to stop Republicans from impeaching an incumbent Democrat on a partisan vote in the hope that it will strengthen the hand of the Republican candidate in a forthcoming election? This is, in effect, what Democrats are proposing to do today. Democrats assume Republicans would never do such a thing. They are wrong. Impeachment, far from being rare, is about to become a commonplace event as an instrument of campaign strategy and partisan warfare. Every president going forward, when facing a hostile Congress, will face the threat of impeachment, since Democrats are proving today that it is not difficult to concoct a case if there is a determination to find one. In that situation, Americans might as well forget about Washington as a place where important problems are addressed on behalf of the public.
There are, of course, other “norms” Democrats wish to cast aside.
Some have said, for example, that they want to pack the Supreme Court or impeach Justice Kavanaugh or get rid of the Electoral College along with the equal representation of states in the U.S. Senate (guaranteed by the Constitution, a minor impediment in their view). There are others who say we should trim back the First Amendment to provide protection only for Democrats and progressives—all other speech being defined out of order as “hate” speech. Presidential candidates have said they want to abolish the country’s southern border while eliminating agencies charged with enforcing immigrations laws. They have said that unauthorized immigrants should receive free health care courtesy of the American taxpayer.
They would ban fossil fuels, mandate electric cars, and reorganize the U.S. economy on a “cave man” theory—to wit, the idea that a complex economy, in which every member carries in his or her pocket a sophisticated electrical appliance and communicates and receives information via other such appliances, can run on the basis of wind and solar power.
They have said, via their conduct, that it is no longer necessary for Americans to accept the results of elections, and that they can be contested long after they are over and an official verdict certified. They accuse President Trump of breaking norms, but this truly is norm-breaking on a breathtaking scale.
The U.S. political system is heading at breakneck speed toward some kind of crisis in which partisan warfare overwhelms the capacity of the president and congress to address national problems, as they once used to do in an era of greater national consensus. Judicial and cabinet appointments, the budget, international interests, and now impeachment have been turned into occasions for party warfare. It appears that today the two parties represent different countries, rather than different coalitions of Americans, and thus must negotiate with one another as heads of state negotiate with adversary nations. The constitutional system, with its separation of powers and layers of government, requires a fair amount of consensus to operate, because minorities are given levers by which they can block policies from being enacted or implemented. With that consensus now gone, that order is step by step coming undone. It is anyone’s guess where and how it will end.
Charles Lipson is a respected U. of Chicago political scientist who writes disapassionately and insightfully about the zero sum impeachment game under way in Washingston DC. He provides multiple perspectives in his article published at Real Clear Politics: The Democrats’ High-Risk Gamble on Impeachment. Excerpts in italics with my bolds and images.
Democrats and Deep State Are All In
The Democrats’ activist base considers Donald Trump fundamentally unfit to hold office. Their impeachment drive is really about this damning judgment, not about any specific act such as withholding Ukrainian aid or wanting to fire Special Counsel Robert Mueller. They say Trump is erratic, narcissistic, self-serving, and unforgivably gauche. He cozies up to dictators and would like to become one himself. Every day, he tramples the presidency’s historic norms. Surely the voters who put him there made a catastrophic error, or, rather, the antiquated Electoral College did. In short, Trump is not just a bad president — the worst in modern history — he is an illegitimate and dangerous one, at home and abroad.
Their harsh view is no masquerade. It is sincere, deeply held, and shared by most elected Democrats. Many, perhaps most, career civil servants agree and consider the president only nominally their boss. That’s why they consider it their constitutional duty to hold him in check. That’s why former heads of the CIA openly praised the “Deep State,” why former FBI Director James Comey wanted his agents to monitor the president in the White House itself. If that means targeting Trump and his key aides for disguised FBI interviews or leaking classified phone calls, so be it. The fight over the Deep State is partly about this profound distrust of Trump (and his distrust of them) and partly about the president’s rising opposition to a century of progressive legislation, executive orders, and court decisions, which grant extensive power to government bureaucrats.
This revulsion is the backdrop to the Democrats’ impeachment effort and the earlier appointment of a special counsel. The crucial point is this: Democrats see the actions they have investigated for three years less as specific crimes and more as steadily accumulating evidence of Trump’s unfitness for office and his repeated violation of his oath, as they understand it. “Democrats of all stripes look at Donald Trump’s business and personal history and see a man who serially does not follow laws and therefore should not be president,” said one well-informed Democrat. For his party, “Ukraine is a big deal because it confirms this view.”
Pelosi Is Playing Several Angles
Although House Speaker Nancy Pelosi shares those sentiments, she is too shrewd, too experienced to be carried away by her party’s most rabid voices. She is also too vulnerable to ignore them. The loudest voices come from deep-blue districts, but she needs to win purple ones, too, to keep her majority. That’s why impeachment has twin goals: to appease the party’s activist base (in Congress and the primaries) and to win the general election by damaging Trump and his Republican allies.
There are other possible goals. One is to sink moderate Senate Republicans in close 2020 races, which could flip control if Democrats win in Maine, Colorado, Arizona, and North Carolina and hold onto other seats. Another is keeping Joe Biden’s rivals, particularly Sen. Elizabeth Warren, frozen in Washington for a Senate trial during the early primaries. National Democrats, led by Pelosi, are deeply worried that Warren, if she is the nominee, will not only lose the presidency but cost them heavily down the ballot. A third is to distract from Inspector General Michael Horowitz’s upcoming report on possible surveillance abuse by senior Obama appointees.
Still, Pelosi’s highest priorities are retaining her position as speaker and, if possible, retaking the White House. Only then would winning the Senate give the Democrats true governing power.
Enormous Downside Risk
The downside of this impeachment gamble is painfully obvious. Without substantially more evidence against Trump, Democrats cannot win overwhelming public support and, without that, they won’t come close to the two-thirds vote in the Senate needed to remove the president. If the upper chamber doesn’t convict, voters are bound to ask why Democrats have spent the past four years on this fruitless quest and neglected their other duties. What legislative accomplishments can they highlight for voters next November? Hardly any. Only a big sign saying “The Resistance.”
How well is this gamble going? Still too early to tell. Recent polls show about half the country now favors impeachment and removal, but, significantly, the president’s numbers are about 10 percentage points better in vital swing states. Rank-and-file Republicans and their officeholders are still solidly behind the president. The big unknown is what effect public hearings and a Senate trial will have.
To remove a president, the Democrats need strong bipartisan support, both among voters and in Congress. They don’t have it. One big problem is that so many Democrats and their media allies have cried “wolf” before. Indeed, they have cried it continually since Trump was elected. The second problem is House Democrats have conducted the inquiry behind closed doors and withheld the transcripts for weeks (only now, under pressure, are they beginning to release them). They’ve made up the rules as they go, refusing to let Republicans call witnesses, refusing to let the president’s lawyers ask questions or even observe the process. Why? No good answers have been provided, nor for why the investigation is being held in a secure room by the Intelligence Committee. Hiding it in the basement is a sad metaphor for what should be a public process. After all, the materials are not classified, and the Judiciary Committee has handled every previous impeachment. The more partisan the process, the less bipartisan and legitimate the outcome.
Republicans See A Rigged Witch Hunt in Process
To Republicans, the impeachment drive looks less like a somber, quasi-judicial proceeding and more like something concocted by Dean Wormer to expel John Belushi’s “Bluto” Blutarsky and Delta House from Faber College. The House rules are ad hoc inventions. The secret hearings, scheduled by Chairman Adam Schiff, can continue as long as he wants, calling only his witnesses. He will then write a report, saying the evidence was appalling and unrefuted, and hand everything over to the Judiciary Committee to conduct public hearings. If Chairman Jerrold Nadler’s previous hearings are any guide, they will quickly descend into an ugly street brawl.
It’s not hard for Republicans to attack this whole process as fundamentally unfair. They say, rightly, that it violates the most basic tenets of Anglo-Saxon jurisprudence:
- Accusations must be specific and backed by clear evidence;
- All evidence and accusations must be presented in open court;
- Rules of procedure must be fixed and unbiased, not arbitrary and ad hoc;
- The accused is presumed innocent and must be given full rights to see all the evidence, confront the accusers, and rebut all charges, including cross-examining witnesses, challenging documents, and presenting exculpatory evidence.
None of these rules has applied to this impeachment inquiry, at least not yet.
Although impeachment is a political act, it is still governed by the constitutional requirement limiting it to “high crimes and misdemeanors,” such as treason and bribery. The Framers specifically rejected a proposal to include “malfeasance in office,” fearing it would open the process to vague charges and transform our system of divided powers into a unified parliamentary system, controlled by Congress.
White House Has to Play Both Short and Long Game
The White House cannot expect to win this battle solely by condemning it as unfair. It must ultimately frame a persuasive, substantive rebuttal to the charges leaking out of Schiff’s committee. That means convincing the public the president is innocent or, as Bill Clinton did, convincing them the charges are not serious enough to overturn an election. Trump can also say the election is so near that we should let voters decide for themselves.
For the moment, however, the White House is wise to concentrate on the unfair process. The public can assess whether those leading the inquiry are even-handed or hell-bent to remove the president. Are they giving him and his supporters a fair chance to present their side? Americans understand these basic rules. We treasure them as bulwarks of our democratic freedom. The House majority breaks them at its peril.
See also post Conrad Black: Trump is Holding the Cards
Conrad Black has always brought a sense of the sweep of history into his political commentary. His recent article is on the current US political situation, and he concisely summarizes how we got here and what to expect. At American Greatness he writes Impeachment Will Fail Excerpts in ialics with my bolds.
Rank-and-File Republicans Have Trump’s Back
Donald Trump was a total outsider politically. He pioneered a new technique of parlaying celebrity and a system of intensive branding of his name and exposure as an impresario and reality television star, into an outsider candidacy, representing the anti-elites and all who felt short-changed by the yuppie-champion Clintons and Obamas and the indistinct Bushes. Like a big cat stalking a wildebeest, Trump changed parties seven times in 13 years, polling constantly, until he saw his target clearly and within range and he charged and seized it.
As Trump was running against all factions of both parties, the adaptation of the congressional Republicans in Washington to the Trump era was sluggish and is still not complete. Speaker Paul Ryan (R-Wis.) and Senators Bob Corker (R-Tenn.) and Jeff Flake (R-Ariz.) have left and John McCain died, having killed health care reform and ordained that he have an anti-Trump funeral. Senate Majority Leader Mitch McConnell, a sly old Kentuckian, has made the cut, as he assimilates to all changes in Washington.
But whatever the Republican congressional delegations think of Trump—and Flake may be right that privately many Republican senators would like to see the back of him—he has the rank-and-file Republican public behind him as only a few Republican presidents have: Lincoln, Theodore Roosevelt, Eisenhower, Nixon at his strongest, and Reagan. Apart from a few ostentatiously pseudo-conscientious senators such as Mitt Romney (R-Utah), the Republican senators can’t desert him in the absence of serious evidence of his wrongdoing, and there is none.
The principal lesson of Justice Brett Kavanaugh’s confirmation in 2018 was that there are enough sane and honest people in the Senate who will notice the absence of any believable incriminating evidence to produce a just decision. No serious person could make a crime out of the Ukraine “facts”; only rabid, witless, blood and publicity hounds (of whom the Democrats have no shortage), can claim that. But that is no longer the point. There was no believable evidence against Kavanaugh either, but only a balance of probabilities was required, at a time when any female denunciation from the past against a prominent man was accorded great credence. Yet even the most Trump-skeptical Republicans in the Senate stayed with Kavanaugh (apart from Lisa Murkowski of Alaska, who paired with pro-Kavanaugh Senator Steve Daines of Montana, who had to attend his daughter’s wedding).
Desperate Hours, Self-Destructive Tendencies
The Democrats and their Republican kindred spirits in the Washington establishment, having completely failed to see Trump coming, and after complacently assuming they could jettison him on the Russian scam, relying on the slavish allies in the national political media, now realize their backs are to the wall and this is their last play.
It won’t work, and while they are trying to execute it, prominent figures of the previous administration will be arraigned for cooking up the Russian collusion fiction and inflicting it on the country by corrupting the FBI and intelligence services. This will not be an optimal ambiance for trying to remove a president whose conduct is sometimes outrageous but who hasn’t broken any laws.
No one should imagine that there will be much sobriety or solemnity in any of this. Being decorous is not the president’s strong suit at the best of times and his enemies are desperate. This isn’t the Nixon-Watergate crisis replayed; there have been no illegalities, and Trump has not squandered his political capital. Where there is still no conclusive evidence that Nixon was complicit in crimes, there were crimes by members of his entourage and he badly mismanaged the crisis; after the media had done their work, his party was running away from him.
Today Trump, not his party, enthuses the Republicans. His threat to the status quo, even more than his garish and sometimes oafish foibles, drives his enemies to such irrational extremes, and make Reps. Maxine Waters (D-Calif.) and Al Green and similar disreputables, almost indistinguishable from the party leaders.
The second notable development in the last week that has altered the political landscape is the outrageous, defamatory, and possibly insane charge by Hillary Clinton that Rep. Tulsi Gabbard (D-Hawaii) and the 2016 Green candidate for president Jill Stein, are “Russian assets” being “groomed” by the Russians for third party candidacies. This is the former first lady, U.S. senator from New York and secretary of state. This is the same mentality that in its deranged perversity commissioned the fraudulent Steele Dossier, and gave us the Trump-Russia “treason” myth, on which she blamed her loss of the election. It didn’t work in 2016. The fervent efforts of the Mueller special counsel staff to produce something remotely indictable against Trump failed, and this final effort to remove the president will be a disaster.
But Clinton has given us a hint of what the world was spared when she was defeated. The Democrats are being led by a coalition of constitutional renegades, spavined political tricksters, and would-be socialist tyrants. They are speeding over a political cliff. The force of gravity will assert itself.
Christopher Caldwell writes at Claremont Review of Books insightfully about the Brexit struggle Why Hasn’t Brexit Happened? Excerpts in italics with my bolds
Caldwell tells the story of how Britain and the EU got to this point, and makes two important points. Almost inadvertently, the EU pact removed British sovereignty and the British constitution. He explains:
In Britain as elsewhere in the world, the struggle has been unleashed by innovations in administration that have arisen since the Cold War. These shift power from electorates and parliaments to managers of information, inside government and out. From thousand-year-old constitutional ideas to five-year-old ones. From habeas corpus to gender identity. Because it was Britain that did the most to construct the ideal of liberty which is now being challenged, Brexit clarifies the constitutional stakes for the world as nothing else.
Many statesmen warned from the outset that British ideas of liberty would not survive a merger with the E.U. The most eloquent early diagnoses came from the Labour Party, not the Tories. That is because the fundamental disposition of the E.U. is to favor technocratic expertise over representative government, and the Tories have not generally been the British party that placed the highest priority on the passions of the masses. In 1962, as Tory Prime Minister Harold Macmillan was eying EEC membership, Labour leader Hugh Gaitskell warned, “[I]t does mean the end of Britain as an independent nation state.… It means the end of a thousand years of history. You may say ‘Let it end’ but, my goodness, it is a decision that needs a little care and thought.”
What Britain Lost in Joining the EU
Gaitskell was right, but it is only in recent years that people have begun to see exactly why he was right. It was always understood that joining the EEC in 1973 compromised Britain’s national sovereignty. All countries that joined had to acknowledge the supremacy of E.U. law over their own. This was a deadly serious thing if you reasoned the consequences to the end. For one thing, it deprived Britain’s monarchy of its (already somewhat vestigial) logic. Monarchs are not underlings: in joining the EEC, Britain could be said to have deposed its queen. Pro-E.U. politicians assured their voters that it wasn’t as serious as that. Britain, they said, had to give a little bit of its sovereignty up in order to receive the benefits of cooperation, the way it did in, say, NATO. Other European countries had done so without wrecking their systems.
But this was a false analogy, as the political scientist Vernon Bogdanor explains persuasively in his recent book, Beyond Brexit. NATO was a treaty. The EEC was a merger. What is more, the EEC that Britain joined had been designed by the major countries of continental Europe in line with their own traditions and interests. It was not in line with Britain’s. Britain had no institutions like the European Commission, an unelected body that could (and still does) initiate legislation. Britain’s politicians didn’t understand the rules intuitively and were less able to work the system. British political institutions were unsuitable as a “farm system” for training E.U. politicians.
And there was an even larger problem than the loss of national sovereignty, Bogdanor shows. The E.U. destroyed the system of parliamentary sovereignty at the heart of Britain’s constitution. For all its royalist trappings, Britain has traditionally been a much purer representative democracy than the United States, because it excludes courts from reviewing legislation on any grounds. British politicians tried to calm the public with assurances that, where British law and E.U. law clashed, British law would prevail. But the acknowledgement of E.U. legal supremacy in the treaties meant that E.U. law was British law.
In the 1980s, British judges began finding that parliamentary laws had been invalidated by later British laws—a normal and time-honored process, except that these new “British” laws had been imported into British statute books not by legislation but by Britain’s commitment to accept laws made on the continent. Bogdanor, who is a Remainer and a defender of human rights, does not necessarily condemn this development. But it meant that, through the back door, judicial review was being introduced into a constitutional culture that had never had it.
Quangos and foundations began designing cases—concerning migrants’ rights, gay rights, search-and-seizure—that unraveled the centuries-old fabric woven from the rights and duties of British citizenship. A new fabric began to be woven, based (as are all such systems in Europe) on post-Civil Rights Act American law and on the litigative ethos of the American bar.
In 1998, Labour Prime Minister Tony Blair passed the Human Rights Act, which swept into British law the European Convention on Human Rights (a pre-E.U. document dating from 1953). It also bound Britain to abide by decisions reached by the European Court of Human Rights, which sits in the French city of Strasbourg. Article 8.1 of the Convention (“Everyone has the right to respect for his private and family life, his home and his correspondence”) was supposed to protect people from the prying eyes of the state, as our Fourth Amendment does. But as the judge and scholar Jonathan (Lord) Sumption noted in a series of lectures this summer, it quickly became the “functional equivalent” of the due process clause of the American 14th Amendment—grounds for all kinds of judicial adventurism.
The EU Empowers the Rich with Deep State Power
The transfer of competences from legislatures to courts is a superb thing for the rich, because of the way the constitution interacts with occupational sociology. Where the judiciary is drawn from the legal profession, and where the legal profession is credentialed by expensive and elite professional schools, judicialization always means a transfer of power from the country at large to the richest sliver of it. This is true no matter what glorious-sounding pretext is found to justify the shift—racial harmony, European peace, a fair shake for women. In a global age, judicial review is a tool that powerful people expect to find in a constitution, in the same way one might expect to find a hair dryer in a hotel room.
Most commentary on Brexit dismisses those who sought it as fantasists and the Parliament that debated it as a madhouse. “Bungle” is the favored verb in most articles on the subject, which generally explain that Britain’s difficult winter and spring illustrate what a misbegotten idea Brexit was in the first place. The Dutch diplomat Frans Timmermans, a veteran E.U. commissioner involved in negotiations, told the BBC that his British counterparts had been “running around like idiots.” European Council president Donald Tusk said, “I’ve been wondering what the special place in hell looks like for those who promoted Brexit without even a sketch of a plan of how to carry it safely.” Washington Post columnist Fareed Zakaria said in March, “Britain, famous for its prudence, propriety, and punctuality, is suddenly looking like a banana republic as it makes reckless decisions, misrepresents reality and now wants to change its own self-imposed deadline.”
But the reasons for the chaos of the past winter—and for the fact that Brexit has still not happened—lie elsewhere. Brexit is an epochal struggle for power, and an exemplary one. It pits a savvy elite against a feckless majority. There have been scares before for those who run the institutions of global “governance”—the rise of Syriza in Greece, with its attack on the common European currency, the election of Donald Trump, the nation-based immigration restrictions put forward by Italian interior minister Matteo Salvini and Hungarian president Viktor Orbán. But it is Brexit that has hit bedrock. If Brexit happens, our future will look one way. If not, it will look another. Those people who warn, as Zakaria does, that voting for Brexit has decreased Britain’s importance in the world—are they joking?
Only when the Leave side won the referendum did it become clear that the vote had been about not just a policy preference but also an identity. It raised the question for each voter of whether he considered himself an Englishman or a European, and of whether it was legitimate to be ruled by one power or the other. As such it made certain things explicit.
The main legacy of the European Union in the past three decades has been the suppression of democracy and sovereignty in the countries that belong to it. We can argue about whether this is the main purpose of the federation, but suppression of self-rule certainly counts as one of its purposes. Extinguishing national sovereignty was E.U. technocrats’ way of assuring that what Germany, Italy, and Spain set in motion in the 20th century would not repeat itself in the 21st. The architects of the Brussels order proclaimed this intention loudly until they discovered it cost them elections and support. The E.U.’s suspicion of nationalism is understandable. But its hostility to democracy is real.
The self-image of today’s E.U. elites is still that of protecting Europe from its historic dark side. They are confident history will regard them as the fathers of a Common European Home. In the imaginary biography he carries around inside his own head, a British builder of the European Union, whether a human rights lawyer or a hectoring journalist, will cast himself as one of the righteous heroes of his time, one of the enlightened. He is a man who “stood alone” to “fight for his principles” and so on. Maybe posterity will even see him as a European James Madison.
Many people in all member states have sought to puncture this kind of “Eurocrat” self-regard, but Britain’s anti-E.U. intellectuals have been particularly direct and pitiless. In mid-July, Robin Harris, a longtime adviser to Cold War Prime Minister Margaret Thatcher, wrote an article in the Telegraph urging Boris Johnson to carry out “a peaceful but revolutionary seizure of power by the British people from a supranational authority and a home-grown but deracinated, collaborationist elite.”
Imagine how it strikes a man who has spent decades working for the E.U. dream—Tony Blair or Donald Tusk, for instance—to see his work likened to “collaboration.” Special place in hell, indeed! Those who sought the Brexit referendum placed a proposition before the British electorate that these self-styled architects of “Europe,” these idealists, had been, all along, not Europe’s Madisons but its Quislings. Worse, when that proposition was placed before the British people, they assented to it.
The British Fight for Liberty
Brexit was not an “outburst” or a cry of despair or a message to the European Commission. It was an eviction notice. It was an explicit withdrawal of the legal sanction under which Brussels had governed Europe’s most important country. If it is really Britain’s wish to see its old constitutional arrangements restored, then this notice is open to emendation and reconsideration. But as things stand now, the Leave vote made E.U. rule over the U.K. illegitimate. Not illegitimate only when Brussels has been given one last chance to talk Britain out of it, but illegitimate now. What Britons voted for in 2016 was to leave the European Union—not to ask permission to leave the European Union. It is hard to see how Britain’s remaining in the E.U. would benefit either side.
And yet, given that Britain is the first country to issue such an ultimatum, given that pro-E.U. elites in other European countries have reason to fear its replication, given the moral ambitions of the E.U. project, given that the British who support Remain have transferred their sentiments and their allegiances across the channel, given the social disparity between those who rule the E.U. and most of those who want to leave it, how could the reaction of Britain’s establishment be anything but all-out administrative, judicial, economic, media, political, and parliamentary war? The battle against Brexit is being fought, Europe-wide, with all the weaponry a cornered elite has at its disposal.
It has proved sufficient so far.