One of the many frustrating problems of modern politics is
the partisan nature of almost every aspect of every issue. As many of us have
pointed out, the parties seem to flip their positions based on who is in office
at the time. This is no way to run a country, especially one that values the
rule of law.
As an exercise, I find it useful to look at events with the
roles reversed. For me personally, if I would oppose an action by a Democrat, I
also oppose it when Donald Trump does it and vice versa. The mental exercise helps
me to keep my principles straight rather than bending to partisan biases. It
helps to keep me objective.
Along those lines, let’s play a game. Let’s imagine that American
politics have rules similar to a giant game of Uno. In our game, let’s throw
the reverse card down and see what happens.
In our reversed, bizarro world, Hillary Clinton won the
election. Now three years into her Administration, witnesses come forward to
allege that she demanded a quid pro quo from a foreign leader, let’s call him
the president of Scandalstan, in exchange for access and foreign aid, which has
already been approved by Congress. Further, the witnesses claim that Hillary
ordered her trusted personal fixer, Sidney Blumenthal, to bypass the State
Department’s chain of command and go to the Scandalstan himself to do campaign
At some point, Hillary gets the idea that there is a massive
scandal against her presumptive Republican opponent, Donald Trump, brewing in
Scandalstan. Preferring to face a weaker opponent, she pressures the president
of Scandalstan to announce a public investigation that names Trump personally.
She ties this announcement to a White House meeting with the new president of
Scandalstan and then places a hold on military aid, which Scandalstan needs to
defend itself against an incursion by its arch-enemy, Evilonia.
However, Scandalstan doesn’t seem to be taking the hints. Months
go by and they haven’t announced the investigation. The Scandalstanians say
that they don’t want to get involved in American politics.
So, Hillary agrees to a phone call with the Scandalstanians.
In the call, they exchange pleasantries and President Clinton (I shudder to type
those words) notes that America does a lot for Scandalstan but that the US does
not get much out of the relationship. The president of Scandalstan then says that
he needs more American missiles to defend his country against the Evilonian
“I would like you to do us a favor though,” are the next
words out of Hillary’s mouth. She wants Scandalstan to “find out what happened”
with people running a website that claims that Hillary is a secret serial
killer. The president agrees to look into the people running the fake news
site. He stresses that his aids have already spoken with Blumenthal on the
matter and that he will do whatever he can to stay in Hillary’s good graces.
Then Hillary asks the president for another favor. She wants
him to help Blumenthal look into Ivanka Trump’s business dealings in Scandalstan,
which Hillary believes are corrupt. There is no firm evidence of corruption.
Hillary doesn’t have enough information to instruct the DOJ to get a warrant or
go to a grand jury for an indictment, but she knows that the whiff of Ivanka’s
corruption could hobble Trump’s campaign enough for someone like John Kasich or
Ted Cruz to become the nominee.
The call, along with other associated meetings on the
subject of the investigations, sets off alarm bells in the heads of many
staffers. Several White House employees who were privy to the call go to
in-house lawyers with their concerns and others file whistleblower reports.
Through it all, the vital military aid to Scandalstan is still locked up tight
with the end of the fiscal year rapidly approaching. If the aid isn’t released
by the end of September, Congress will have to appropriate the money again and
Scandalstan’s soldiers will be hard-pressed to fight off the Evilonian tanks.
But then a whistleblower report is leaked. Coincidentally, Hillary
releases the aid to Scandalstan the next day. This allows her a fig leaf in her
claim that there was no quid pro quo because Scandalstan got its aid without
announcing the investigation.
Republicans are apoplectic at Hillary’s behavior. Not only did she try to sell access to the Oval Office for a political investigation, the evidence is strong that she tried to use aid appropriated by taxpayers to benefit her reelection campaign and smear her likely opponent. When Republicans ask the Clinton Administration for documents relating to the delay in the Scandalstan aid, they face a stone wall.
However, the debate over quid pro quos and whistleblowers
and the original intent of impeachment obscures one of the most important facts
of the entire Ukraine scandal. For a president to use his office to leverage a
foreign government to conduct (or announce) a sham investigation of a political
opponent is wrong on its face. The favors requested in the president’s own call
summary represent a flagrant abuse of power.
Although no analogy is perfect, this is an accurate (although abbreviated) representation of the case against Donald Trump. It merely changes the names. If Republicans are honest with themselves, I’m sure that they would be extremely angry at Hillary’s abuse of power in using her position to further her own political career. In fact, the allegations that Hillary used her position as Secretary of State to enrich herself and that she acted as though she was above the law were two of the many very good reasons that Republicans gave back in 2016 when they argued that Hillary was unsuited for the presidency.
Let’s look further as well. Assume that Hillary had been the
president who was the subject of the Mueller report’s claims that there were 10
separate episodes of obstructive behavior. Even though Mueller did not ask
for an indictment of the president, based on his understanding of the DOJ
policy that a sitting president cannot be indicted, Republicans would not
hesitate to call Hillary’s behavior disqualifying and impeachable.
Finally, consider the use of a national emergency as a
legislative tool. It isn’t difficult to picture Hillary Clinton using the
pretext of a national emergency to do what Congress has decided not to do.
Maybe Hillary would use a state of emergency after a spate of mass shootings or
a terror attack to declare a ban on the private use of “assault rifles.” Maybe she
would declare the current health care system a public health crisis and use a
national emergency to implement a public option. Again, Republicans would
rightly consider such actions to be an impeachable subversion of congressional
To be fair, there is also a weakness in Democratic handling
of the impeachment process, however. The Constitution is silent on how the
House conducts the impeachment process, an inquiry is not even a constitutional
requirement, so the Democrats have much leeway in the nuts and bolts of the
process. It also isn’t necessarily a disqualifying factor that Democrats did
not allow Republicans to call irrelevant witnesses or unmask the whistleblower.
Even though the statute
does not protect the whistleblower’s identity from disclosure by anyone other
than the inspector general, there are legitimate public policy reasons for
protecting the anonymity of whistleblowers.
The best reasons for slowing the impeachment process come
from Jonathan Turley and David French. In his French
Press column, French argued that the Trump Administration’s stonewalling of
Congress is not improper based upon precedent that the president and his immediate
advisors cannot be compelled to testify before Congress. This position is based
upon a Nixon-era interpretation and was also supported by the Clinton and Obama
Administrations. The argument is based upon the president’s need for independence
from Congress as the head of a co-equal branch of government.
Turley argued in his testimony, not that Donald Trump was not guilty of the
charges before him, but that the investigation was not complete. Turley told
congressional investigators, “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.”
“In the current matter, much remains unknown in terms of key
witnesses and underlying documents,” Turley said later. “There is no
explanation why the matter must be completed by December.”
As both French and Turley point out, House Democrats have
not exhausted all means of obtaining more evidence against Donald Trump. Rather
than submitting requests, Congress could issue subpoenas for testimony and
documents and ask the courts to enforce the subpoenas on an expedited basis. While
Republicans often point out that President Obama rejected congressional
subpoenas from the Republican House, it is also true that the Obama
Administration turned over the subpoenaed documents when confronted with a
Likewise, lawsuits against Donald Trump’s abuse of national emergency
statutes are also winding their way through the legal system. A resolution to
these cases could impact the articles of impeachment. If the president loses
the case and refuses to back down, it would be another clear example of an abuse
I’ve made no secret of the fact that I
believe that Donald Trump’s actions justify impeachment, but that does not
mean that I support a willy-nilly rush to impeach before a self-imposed
deadline. Polling shows that a plurality of Americans supports impeachment but further
investigation and revelations of corruption by the Trump Administration would
help to build public support for his impeachment and removal. If there is to be
any chance of removing Donald Trump, then overwhelming public support is
required. With the current slim edge favoring removal, that strong public
pressure on Republicans is simply not there… yet.
I’ll close with more words of wisdom from Jonathan Turley.
As you read his quote, don’t forget that Turley was actually called to testify
by House Republicans in Trump’s defense.
“The House should not assume that the Republican control of
the Senate makes any serious effort at impeachment impractical or naïve,” Turley
said. “All four impeachment inquiries have occurred during rabid political
periods. However, politicians can on occasion rise to the moment and chose
principle over politics.”