As the impeachment process begins its final phase this week, there is already debate over which side got the best of the other and who stands to benefit most in this year’s election. The one thing that can be said for certain is that neither side has emerged from impeachment looking good.
On one hand, Democrats look bad because of problems with
their handling of the impeachment process. The House rushed its impeachment
vote and then, perhaps realizing that they had committed a strategic error in
placing the decision on whether to dig deeper in Mitch McConnell’s hands,
inexplicably sat on the referral to the Senate for weeks. Republicans had a legitimate
point when they asked why the House felt the need to urgently impeach the
president and then delay his trial.
Republicans also had a good point when they asked why more
witnesses were needed when House Democrats had said that there was overwhelming
evidence. Even though about half the country seems to have agreed with the
Democrats according to numerous polls, including a recent Fox
News poll that showed 50 percent support for the president’s removal, House
Democrats obviously did not convince their Republican counterparts in the
Senate. Words like “inarguable,” “undeniable,” and “undebatable” are almost
always proven to inadequate descriptors, especially in political matters, because
both sides are adept at arguing, denying, and debating.
The Democratic error was a two-fold miscalculation in both
rhetoric and wrapping up the investigation prematurely. While the House
hearings way back in October did a good job of convincing a plurality of
Americans that the president had committed impeachable acts, every new revelation
that emerges in the Ukraine scandal is a reminder that House Democrats quit
investigating after they had barely scratched the surface.
A final Democrat error was in not throwing the book at the
president. Robert Mueller had already investigated and documented other obstructive
abuses of power in his report. The president’s abuse of national emergency
authority to subvert the will of Congress could have been another article of
impeachment as well. The articles could have easily become a laundry list.
On the other hand, Republicans have acted to mislead voters
in nearly every claim made in defense of Donald Trump. Since the news of the
president’s quid pro quo deal attempting to exchange aid for an investigation
of the Bidens was revealed back in September, the party’s members have
continually shifted the goalposts and attempted to prevent the full truth of
the president’s activities from being revealed.
First, Republicans claimed that the transcript
of the July 25 phone call didn’t contain evidence of a quid pro quo. In reality,
the document, which is not a direct transcript of the call, indicates that when
Zelensky asked about getting Javelin anti-tank missiles from the US, the next
word out of Trump’s mouth were “I would like you to do us a favor….”
That favor turned out to be two investigations. In his first
request, the president raised the issue of Crowdstrike and the DNC server from
2016. This conspiracy theory had already been thoroughly debunked
by Trump’s own Homeland Security staff before the call was made. The second
investigation was into “talk about Biden’s son, that Biden stopped the prosecution.”
The president asked Zelensky to cooperate with Rudy Giuliani in looking into the
Dispatch does a good job of laying out the facts of the Biden allegations,
which turn out not to hold water.
Second, Republicans argued that President Trump was not
accused of a crime and that the Founders had intended impeachment as a
punishment only for criminal acts. They are wrong on both counts.
Rights Foundation describes the history of “high crimes and misdemeanors” thusly:
“Some of these charges were crimes. Others were not. The one common denominator
in all these accusations was that the official had somehow abused the power of
his office and was unfit to serve.”
The Republican constitutional witness to House impeachment
hearings agreed. Jonathan
Turley told House investigators that Alexander Hamilton had defined “impeachable
offenses” in Federalist 65 as “those offences which proceed from the
misconduct of public men, or, in other words, from the abuse or violation of some
public trust.” What Turley objected to was not that the president’s actions
were not impeachable, but “the paucity of evidence.” Turley thought that
Democrats needed to keep digging and building their case.
Looking back through our history, about
half of US impeachments have not involved criminal offenses. Abuse of power
was a common charge in impeachment cases. If only presidential impeachments are
considered, the Republican argument is still wrong. Andrew
Johnson was impeached for violating a noncriminal statute as well as “designing
and intending to set aside the rightful authority and powers of Congress….”
To the second point, President Trump broke numerous laws
leading up to his impeachment. His freeze on the Ukrainian aid violated
the Impoundment Control Act, a noncriminal violation of the law similar to
Andrew Johnson’s violation of the Tenure of Office Act. Trump also likely violated
campaign finance laws that prohibit soliciting or accepting help in an
election from foreign governments.
The president almost certainly committed criminal acts as
well. Several Trump supporters have made the case that there is no law against “obstruction
of Congress.” While this may be true in the strictest sense, it is wrong in
terms of case law that covers contempt of Congress.
Obstruction of Congress is covered by series of other laws notes the Congressional
Research Service. The statute isn’t called obstruction of Congress but laws
against obstruction of federal proceedings and witness tampering are among the
laws that prohibit obstructing Congress. The Democratic authors of the articles
of impeachment should have specifically referenced these statutes.
Republicans were also less than honest when they claimed
that it was abnormal for witnesses to appear in Senate impeachment trials.
While Republicans claimed that Democratic handling of impeachment violated
congressional tradition, it was the Republican
refusal to hear witnesses that broke the tradition of every prior impeachment trial
in US history.
Finally, I’m most disappointed in the Republican claims that
the president has absolute immunity and a seemingly unlimited executive
privilege. As I
discussed in detail last week, legal precedent reaching back to the days of
Thomas Jefferson does not support claims of absolute immunity and privilege. In
fact, precedent points in the opposite direction, particularly when the
president is attempting to use executive privilege to hide wrongdoing.
It’s hard to imagine that the Republican Party, which for
most of my life proudly claimed to be the party of constitutionalists, is now
twisting the original intent of the Constitution to protect presidential
behavior that is exactly what the Founders were worried about, but that is
where we are in 2020. In This bizarro world, the process errors of the
Democrats are worse than the abuses of power by the president.
There were problems with both sides’ handling of the impeachment.
The House should have subpoenaed more witnesses and asked courts to force the
Administration to comply. The White House should have done its legal duty and
complied with constitutional requests from Congress or at least fought them in
court rather than ignoring them. The Senate could have chosen to rectify the errors
of both sides by hearing witnesses and examining evidence that came to light
after the House voted in December. Justice called for the Senate to find the
The biggest error of Senate Republicans, however, was the
almost total lack of curiosity about their president’s behavior. A new poll showed
percent of voters, including about half of Republicans, wanted the Senate
to call witnesses. Less than four percent of Senate Republicans honored the
will of the people. Many of those voters will remember Friday’s vote when they
cast ballots this November.
Republicans who do not want to hold President Trump
accountable have said from the beginning that the people should decide his
fate. When the president is acquitted next week, Trump’s fate will fall to voters
after all. While the Senate was able to plug its collective ears and not hear
the evidence against the president, the White House won’t stop other
revelations in the media so easily. The witnesses that the Senate refused to
hear will be splayed across newspaper headlines and television screens between
now and Election Day.
When voters go to the polls, they will have a choice between
the Democrats, who carried out an incompetent investigation, and the
Republicans who, when faced with presidential corruption of YUGE proportions,
chose to look the other way. The GOP may not be pleased to see how voters
reward the actions of President Trump and his defenders.