22 December 2019

Persuading The People On Impeachment

The great impeachment story of the past week, after the House voted Articles of Impeachment against President Trump, was Speaker Nancy Pelosi's sudden decision not to transmit the articles to the Senate for the impeachment trial that is the second phase of the impeachment process. According to statements she made to the press immediately after the impeachment vote, she has a concern the impeachment trial procedures would be unduly biased towards the President.
“So far we haven’t seen anything that looks fair to us,” Pelosi told reporters at a news conference just moments after the House charged Trump with abuse of power and obstructing congressional investigations. “That would’ve been our intention, but we’ll see what happens over there.”

It's About Politics, Not "Fairness"

It comes as no great surprise that pundits and media commentators are rather less than convinced by this logic. If anything, Speaker Pelosi appears to be guided by Harvard Law Professor Lawrence Tribe's logic expressed in a Washington Post op-ed piece just prior to the impeachment vote in the House. If that is the guiding logic, then "fairness" is not an issue so much as political advantage and political gamesmanship.
Such an approach could have both tactical and substantive benefits. As a tactical matter, it could strengthen Senate Minority Leader Charles E. Schumer’s (D-N.Y.) hand in bargaining over trial rules with McConnell because of McConnell’s and Trump’s urgent desire to get this whole business behind them. On a substantive level, it would be justified to withhold going forward with a Senate trial. Under the current circumstances, such a proceeding would fail to render a meaningful verdict of acquittal. It would also fail to inform the public, which has the right to know the truth about the conduct of its president.
Put simply, Professor Tribe argues that Democrats should attempt to leverage a presumed eagerness by the President and the Senate Republicans to be done with impeachment to win concessions on trial rules and procedures. While no one has said specifically that Nancy Pelosi is persuaded by Tribe's logic particularly, at the very least one must consider that logic to be a contributing factor.

In a moment of supreme irony, however, one of the Democrats' constitutional scholar witnesses, Noah Feldman, has argued that withholding the Articles from the Senate means President Trump is actually not impeached--at least not yet.
The Constitution doesn’t say how fast the articles must go to the Senate. Some modest delay is not inconsistent with the Constitution, or how both chambers usually work.
But an indefinite delay would pose a serious problem. Impeachment as contemplated by the Constitution does not consist merely of the vote by the House, but of the process of sending the articles to the Senate for trial. Both parts are necessary to make an impeachment under the Constitution: The House must actually send the articles and send managers to the Senate to prosecute the impeachment. And the Senate must actually hold a trial.
As I noted in my last post, Nancy Pelosi's stall tactic could, if continued indefinitely, could amount to a "legislative pocket veto" of her own Articles of Impeachment.         

It is ALWAYS About Politics

With the Senate and the House seemingly at impasse over the impeachment trial procedures, and whether Nancy Pelosi will transmit the Articles to the Senate if the procedures are not to her liking, the media has, rather predictably, filled the information void with speculation about the wisdom or unwisdom of Pelosi's delay. Even Supreme Court Justice Ruth Bader Ginsburg has not resisted the temptation to sound off on the impeachment. In an interview with the BBC, Justice Ginsburg appeared to imply that Senators who articulate a clear bias on impeachment should not participate in the trial itself.
When asked about senators making up their minds before the trial, the Supreme Court Justice said: "Well if a judge said that, a judge would be disqualified from sitting on the case."
With all due respect to Justice Ginsburg, Senators are not judges, nor are they expected to be judges. Senators are not required to be impartial on impeachments, and we probably do not want them to be impartial. 

We need to remember that an impeachment trial is not a criminal trial, nor was it ever intended to be a criminal trial. As Alexander Hamilton pointed out in Federalist 65, impeachment is a political process, which makes the trial a political trial. In politics, people are not impartial, and Hamilton had no illusions about the partiality of Senators sitting in an impeachment trial.
The delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs, speak for themselves. The difficulty of placing it rightly, in a government resting entirely on the basis of periodical elections, will as readily be perceived, when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account, can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny.
Being political, impeachment is always going to be to some degree partisan in nature. Democrats are naturally going to assume the worst of a Republican President and Republicans are always going to assume the worst of a Democratic President, while both parties will generally seek to protect a President from their own party. This is what politics is, no more and no less. 

To understand the institution of impeachment, one must evaluate it within its proper context, and that is the political context.

The House Must Make Its Case To The People

In a criminal trial, a prosecutor is obliged to prove his case beyond a reasonable doubt. He must persuade a jury to convict the accused of the crime charged.

That is not the burden of proof the House has in an impeachment trial. Arguably, the House does not have to prove any criminality at all. Rather, during an impeachment trial the House must persuade the Senate that the President is ill suited to the office, that he has behaved in a manner wholly irreconcilable to the office, and thus has abused that office.

This is not a criminal standard of conduct, nor could it ever be a criminal standard. On the contrary, it is an ethical standard, a moral standard. Again, Hamilton in Federalist 65 points out the true sanction of an impeachment trial is a permanent besmirching of the personal honor of the accused when he argues the rationale for the Senate being the court of impeachments.
The awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons.
The sanction of impeachment is the public opprobrium of the American People. While the House must present a case to the Senate during the impeachment trial, the ultimate audience--and the ultimate jury--is likewise the American People. The House must persuade the American People the person they elected President is no longer worthy of their trust. The House need not persuade anyone the President has committed legal malfeasance of one sort or another, merely that the President's conduct is simply unacceptable.

Returning to Professor Tribe's logic for Nancy Pelosi's delay in transmitting the Articles of Impeachment to the Senate, viewed against the backdrop of Federalist 65, it would appear that Professor Tribe's substantive case for the delay is a concern that, in the abbreviated trial Senate Majority Leader Mitch McConnell has intimated would take place, the House would be denied an opportunity to make its case to the American People, which it absolutely must do if an impeachment is to have any political legitimacy at all.

The House Has Not Made A Persuasive Case Yet

Alas for the Democrats, implicit in Lawrence Tribe's substantive case for delay there is an implicit admission that the persuasive case for impeachment has not been made, at least in the eyes of the American People. Despite all of Adam Schiff's hearings, despite the legal presentations made before Jerry Nadler's Judiciary Committee, the American People do not appear to be persuaded of the need to remove President Trump from office.

Nor is it simply Lawrence Tribe's op-ed piece that suggests this. The Real Clear Politics poll aggregate on impeachment and removal shows that, at this time, more people oppose impeachment and removal than favor it--by a margin of 0.8% among all voters, and by a far more substantial 5% among self-described independent voters.

Keep in mind that the Constitution demands a two-thirds vote of the Senate to convict in an impeachment trial.  Thus far, the House Democrats have not come anywhere close to that level of persuasion among the electorate. The case the House Democrats have advanced in support of their two Articles of Impeachment against Donald Trump has, by all available measures, failed to accomplish its purpose. The American People, in the aggregate, have not been persuaded.

Given that reality, the proper outcome of the Senate impeachment trial would be an acquittal for President Trump. 

This is yet another reason impeachments are handled in the Senate, and not by the Supreme Court nor by any other judicial or political body. The Senate, as a whole, is charged with adjudicating the persuasiveness of the House case for impeachment, which is to say the Senate is not charged with adjudicating legal merits, merely the how well the impeachment presentation by the House sways, or is likely to sway, public opinion. That is the only "impartiality" that is demanded of Senators, a point Federalist 65 makes explicitly.
Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?
 Can The Democrats Still Make Their Case?

Regardless of what one thinks about President Trump, his demeanor, or his handling of the duties of his office, the reality of the Democrats' failure to mount a persuasive case for his removal is unavoidable. It follows that the Democrats' posturing and gamesmanship now are an effort to remedy that defect, to secure the opportunity to make that persuasive case, and to secure the testimonies, evidences, and logic that will make that persuasive case.

Nancy Pelosi's delay, and Schumer's demands on trial procedures, are nothing more than this: an attempt to do what Adam Schiff and Jerry Nadler failed to do, which is to persuade the American People Donald Trump is unfit for office.

In the purely hypothetical, we must acknowledge that such a case is always a potential. Array enough of the right facts and the proper reasoning before the electorate and they would presumably be persuaded, and Donald Trump would then be removed from office.

The challenge for Pelosi and the Democrats is that this is not an hypothetical, but an actual. Arguments on law and the Constitution aside, the perceptual reality of their maneuverings contains a significant risk of being viewed as an increasingly desperate plea for "just one more chance." Having failed to make the case previously, should they get a fresh bite at the impeachment apple, this time to make the case properly and persuasively?

As with all questions in a representative democracy, the answer to that ultimately lies with the voters. Right now, the answer from the voters is a definitive "No."

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