03 December 2019

Impeachment: The Case For, The Case Against

After weeks of closed-door depositions and two weeks of public hearings, both the Democrats and the Republicans on the House Permanent Select Committee on Intelligence have released their reports on Adam Schiff's impeachment inquiry into President Trump. 

We now have Adam Schiff's case for impeachment, and we have the Republican rebuttal.

Hundreds Of Pages To Say What Has Already Been Said

The reports each run into the hundreds of pages, and yet there is very little revealed that has not already been said. The case that Adam Schiff made in the public hearings is the case made in the Democrats' report. The rebuttals made by the Republicans are the case made in the Republicans' report. There is nothing in either report that has not been commented on at length already. 

Even the conclusions are unsurprising. The Democrats concluded that Donald Trump abused his office and sought to solicit foreign interference in the 2020 election. The Republicans concluded the Democrats were full of horse hockey.

Anyone who followed the public hearings will recall that these were the essential talking points of both sides during the hearings. Anyone who did not follow the public hearings may, if they desire, read the 400-plus pages of impeachment report to learn that the Democrats concluded Donald Trump abused his office and sought to solicit foreign interference in the 2020 election, while the Republicans concluded the Democrats were full of horse hockey.

The legacy media, true to form, greeted the reports with great sobriety and ponderance. In Vox, for example, wraps up "all you need to know" with a single quote from the report:
But all you really need to read is this one sentence from the report, which encapsulates all of its major findings: “[T]he impeachment inquiry has found that President Trump, personally and acting through agents within and outside of the U.S. government, solicited the interference of a foreign government, Ukraine, to benefit his reelection.”
The New York Post took the view of the Republicans, which was that Adam Schiff was full of....Schiff.
The Schiff report insists that chat was timed to bring the pressure campaign to a “crescendo.” In fact, the congratulatory call was prompted by the historic landslide win for Zelensky’s party in parliamentary elections just four days before.
Will It Matter?

Will the reports move the needle of public opinion one way or another? Doubtful. If public polling is any guide (although, admittedly, after 2016 all polls should be taken with a grain of salt), independent voters and voters in swing states are already making up their minds that impeachment is mostly a load of partisan horse hockey. Alternative media commentator Tim Pool highlights how badly the impeachment strategy appears to have backfired for Democrats in swing states. If that assessment is accurate, the committee reports will have no impact--the die is already cast for both parties.

Yet even that was more or less already known. With the impeachment inquiry now moving to Jerry Nadler's Judiciary Committee, instead of calling additional fact witnesses to present more "evidence" (although the Republicans have nothing but contemptuous derision for what the Democrats have counted as evidence thus far), he plans to open his phase of the inquiry with a panel of legal experts who will opine on what constitutes "high crimes and misdemeanors" and whether or not Donald Trump is demonstrably guilty of them. What Donald Trump has done the Democrats appear to believe they have demonstrated sufficiently. By wandering down a path of legal theory and contemplation, Nadler is conceding the emotive aspects of impeachment--he is conceding that the Democrats' die is cast.

Nadler's Witnesses Are Not All Friendly

Strangely enough, even some of that legal theory and contemplation is already known. The foremost legal scholar on Nadler's panel of experts, Georgetown law professor Jonathan Turley, has penned a few op-ed pieces already commenting on the impeachment proceedings. He had few kind words to say about the inquiry timetable and the ambition to conclude the inquiry by Christmas.
For an academic or legal commentator, it has become perilous to even raise obvious flaws in this impeachment from historical or constitutional perspectives. It is like trying to explain to panicked shoppers on Christmas Eve that the new “Tickle Me Elmo” is an overpriced and poorly designed toy. Whether it lasts does not matter. It is all about the sheer joy of opening and playing with it for a short time before it breaks.
Professor Turley has even been skeptical of the Democrats' initial arguments on impeachment:
Neither argument is compelling. The fact is that, if proven, a quid pro quo to force the investigation of a political rival in exchange for military aid can be impeachable, if proven. Yet the more immediate problem for House Democrats may not be constitutional but architectural in nature. If they want to move forward primarily or exclusively with the Ukraine controversy, it would be the narrowest impeachment in history. Such a slender foundation is a red flag for architects who operate on the accepted 1:10 ratio between the width and height of a structure.
He even debunked Adam Schiff's theory of bribery by pointing out that it was rejected as far back as 1787:
Hastings was charged by the impeachment committee with bribery and other forms of abuse of power. The case dragged on for seven years before Hastings was acquitted on every article of impeachment. Even though Hastings did have some dodgy personal financial dealings, his impeachment today is widely viewed as an injustice, and Burke was ultimately censured for his intemperate rhetoric.
It seems unlikely that, given Professor Turley's explorations on impeachment thus far, that he will offer much comfort to Democrats looking to bolster the legal side of their impeachment case. One can almost envision Professor Turley repeating his observation that the Democrats' impeachment case may be intentionally "built to fail."
This of course assumes that Democrats seriously want to remove Trump from office. Instead, it all could be a failure by design in the hope of losing the case in the Senate in order to energize the Democratic base and win back control of the Senate next November, all while denying Republican voters a rallying point. Assuming that Democrats actually would like to remove Trump from office, how could the House prove such a case? The answer is those three simple steps of reschedule, reframe, and repeat.
With such commentary already in the public record, Professor Turley makes an odd choice of witness. Presumably, Nadler wants legal opinions that will bolster the case for impeachment, that will give the Democrats substance to argue the righteousness of their cause.

Deja Vu All Over Again

Yet this has been the singular characteristic of the Democrats' impeachment efforts thus far--an eerie sense of deja vu all over again. This impeachment push has from the start had the look and feel of the aborted attempts to cajole high crimes and misdemeanors from the Mueller Report. There is the problematic legal case, the shaky, unreliable, and potentially perjurious witnesses, there has been unexploded bombshell after unexploded bombshell. There is a case that, ultimately, has not been proven.

The nature of impeachment is always such that the case necessarily must be overwhelming. Alexander Hamilton alluded to this in the opening of Federalist 65:
The prosecution of them, for this reason, 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. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.
For an inherently political proceeding such as impeachment to proceed with a measure of justice, the case must be powerful enough to persuade virtually the whole of the community without regard to partisan alignment. This standard is clearly not met here. Whether one agrees or disagrees with the Republicans rebuttal, the unalterable fact of that rebuttal is that it is a point-by-point refutation of the Democrats' case. That refutation will persuade some people, just as the Democrats case will persuade others. 

That partisan divide not only means the impeachment process will fail in the Senate, it means the impeachment process deserves to fail. The hurdle Adam Schiff needed to overcome has always been clear: to persuade the bulk of the American electorate that Donald Trump was irredeemably corrupt and needed to be removed from office. The case needed to be made with such power and clarity that no coherent refutation was even possible. The Republicans have made a coherent refutation, one that will be believed by the Republican base just as the Democrats report will be believed by the Democrat base. 

For the Democrats, that is a case not made. That is a case that will fail. That is a case that deserves to fail.

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