14 December 2019

Trump Is (Almost) Impeached

It comes down to this. All of the Democrats bluster, and posturing, and pontificating, all of the hearings, secret and public, all of the testimony, all of the direct and cross examination of witnesses, are now reduced to a single House Resolution--number 755--containing two Articles of Impeachment against President Donald Trump, alleging high crimes and misdemeanors.

As of this writing, this resolution was voted out of the House Judiciary Committee on a strict party-line vote, 23-17. Not one Republican voted for the resolution. Not one Democrat voted against. Over the next several days, the resolution will be voted on by the full House of Representatives. 

A Partisan Inquiry

We should have no illusions about this impeachment. It is unequivocally proceeding along party lines. The resolution sanctioning the impeachment inquiry previously initiated by Congressman Adam Schiff was passed on a nearly straight party-line vote, with two Democrats breaking ranks to vote with Republicans against the inquiry. In all other regards, the impeachment inquiry process has been a strictly partisan affair--and a hyperbolic one at that, with the Democrats alleging President Trump is guilty of graver offenses than those alleged against President Nixon, and Republicans proclaiming President Trump beyond reproach.

The notion that President Trump's alleged offenses are worse than those ascribed to President Nixon in 1974 is, in a word, silly, and it will not receive serious consideration here. 

Likewise, the notion that no criticism or censure could plausibly be applied against President Trump regarding his interactions with President Volodymyr Zelensky of Ukraine is unrealistic. There are criticisms of policy which may be (and have been) made against President Trump (as they could be against any President), and if certain predicates could be established, one could even construe impeachable offense--the key word, of course, being the laconic "if".

That the rhetoric of both sides has moved to the extreme edge illustrates just how deeply partisan this inquiry has been. In that regard at least, Congress has proceeded with an impeachment inquiry that treads the very dangerous partisan path Alexander Hamilton warned against in Federalist 65 (emphasis added):
A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. 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.
An Uncertain Case?

Intriguingly, at least a few Democrats are at least ambivalent about the Articles of Impeachment themselves. Congresswoman Elise Slotkin (D-MI) appeared on Fox News to share her misgivings about impeachment, and that other Democrats had similar concerns.

Congresswoman Slotkin's assertion is amplified by reporting that at least six Democrats are planning to vote against the articles of impeachment, and the number may go higher as the floor vote gets closer.

Also worthy of note is the pliable theories of impeachment the Democrats have advanced. Before the public hearings of the House Intelligence Committee, Congressman Adam Schiff was emphasizing a corrupt "quid pro quo" and abuse of power. By the time of the public hearings before the Intelligence Committee, that narrative shifted to bribery and extortion. When the inquiry shifted to Congressman Jerry Nadler's Judiciary Committee, the narrative had shifted again to "abuse of power" and "obstruction of Congress." For all their high dudgeon, the Democrats have struggled to define the impeachable offense, wandering among several potential offenses before settling on the two offenses articulated in House Resolution 755.

Finally, the assessment among voters does not augur well for Democrats. The most recent aggregate polling numbers from RealClearPolitics show that independent voters in particular are not persuaded the case the Democrats have made thus far.

What all of this says about the quality of the evidences assembled by the Democrats in support of impeachment is a question the reader must resolve in the privacy of his or her own mind. Suffice it to say the question of quality is at least raised, and without clear answer.

President Trump's Rebuttal Has Been This: Nothing

What is striking about President Trump's response to the impeachment inquiry is how little material he has provided in his defense--and how effective it has been in countering the Democratic narratives. When confronted by the initial allegations of misconduct, President Trump simply released the rough transcript of the phone call with President Zelensky that is the epicenter of this fracas. From the start, there has been no need to speculate on what was said or not said; we know all that was said on the call.

Moreover, it has given rise to a simple and consistent line of defense for Donald Trump: as I have said multiple times, one merely needs to read the transcripts, read the Constitution, and read the law, to determine whether or not there was any misconduct worthy of impeachment. It has been a line of defense President Trump has deployed multiple times on social media.
That simple refrain has managed to prevail against the multiple iterations of Democrat denunciations. As the Democrats have evolved from "quid pro quo" and "abuse of power" to "extortion" to "bribery" and back to "abuse of power", Trump's defense has remained centered on this simple refrain: "read the transcripts."

Perhaps the greatest strength of this defense has been its innate certainty, particularly when contrasted with the seeming uncertainty of the Democrats.

A Case Made Or Not Made?

The challenge of the Democrats is now what it has always been: make a case that President Trump has committed impeachable offenses for which he should be removed from office.

Regarding the first Article of Impeachment, the Democrats need to show the following:
  • That Donald Trump's requested investigations harmed the interests of the United States.
  • That no predicate existed for investigating either Joe or Hunter Biden, or Hunter Biden's relationship with Ukrainian gas company Burisma
  • That Donald Trump made a linkage between previously promised and appropriated military aid and these requested investigations, and that the linkage was itself corrupt.
These are the fundamental elements of the charge laid out in the first Article of Impeachment. Have they made the case? Can they make the case?

Getting to an affirmative answer is difficult. Several times I have scrutinized the case the Democrats have made during this impeachment inquiry, and every time the case comes up short in key areas.

The first element is fundamentally a question of policy, and its inclusion in an impeachment Article raises some serious concerns about the separation of powers--who gets to decide what is and is not in the nation's interest? Disagreements over policy are not grounds for impeaching a President or anyone else..

The second element is contradicted by externally reported facts and by witness testimony. Virtually every witness called by Congressman Schiff and the Democrats attested to the corruption that is Burisma, as well as to the concerns of the US State Department of the potential conflict of interest between Joe Biden's tasks as Vice President and Hunter Biden's Burisma directorship.

The third element is perhaps the greatest challenge for the Democrats, for even noted legal scholar Jonathan Turley of George Washington University has noted that the requisite elements for a "quid pro quo" are not present in the transcript of the July 25 phone call. Indeed, the thrust of Professor Turley's testimony to the House Judiciary Committee was the criticism that the evidentiary record presented to the public by the Democrats is wholly inadequate to the task of impeaching a President.

Regarding the second Article of Impeachment, Obstruction of Congress, the Democrats case rests almost entirely on President Trump's refusal to comply with Adam Schiff's demands for witnesses and documents. President Trump's stance has consistently been that the inquiry itself was illegitimate, therefore any and all subpoenas and demands of the Committee were illegitimate and would not be honored.

However, the Democrats have never attempted to litigate the subpoenas in court, choosing instead to argue that merely refusing to comply was an act of obstruction. This seems a particularly problematic approach, especially in light of Professor Turley's admonition against imputing an impeachable offense from any effort by the President to litigate against the Committee's subpoenas. In Professor Turley's estimation, making that into an impeachable offense would be an abuse of power, but by the Congress and not by the President. As Professor Turley pointed out in his testimony before the Judiciary Committee, the courts exist in part to adjudicate disputes between the Legislative and Executive branches, and it is out of that adjudication that both the Congress and the President can derive legitimacy for their positions.

President Nixon litigated his efforts to keep his Oval Office tapes private, resulting in the pivotal Supreme Court case United States v Nixon (418 U.S. 683), which Nixon lost. As a consequence, there was no challenge to the legitimacy of the Special Counsel investigation against him to be made--the legitimacy was unambiguously established by the courts. 

The Democrats have no such imprimatur for their inquiry. They have sought no such imprimatur for their inquiry. If the legitimacy of the inquiry is open to challenge, on what grounds may Donald Trump be impeached for daring to challenge it?

The lack of a clear answer to that question is the fundamental hurdle the Democrats must surmount to prevail on the second Article.  It seems an unlikely argument that no one may challenge the will of the Congress, which is the inference to be drawn from the lack of a judicial record regarding the inquiry's legitimacy. 

Has the case for impeachment been made? Viewed logically and dispassionately, it is difficult if not impossible to say that it has. The case has not been made that President Trump abused his office in his dealings with President Zelensky, nor has the case been made that President Trump obstructed a legitimate inquiry by the Congress into his conduct. President Trump theoretically could be guilty of both offenses--and, if the particulars alleged in the Articles could be proven, they would amount to impeachable offenses by the President--but the evidences presented to the public thus far do not establish Trump's guilt.

Here We Are. Where Do We Go?

Now that impeachment articles have been drafted, it falls to the House to decide whether to vote those articles into legal existence. The House of Representatives, in particular the House Democrats, must decide if the facts presented by Congressmen Schiff and Nadler justify impeachment. Their individual careers and the credibility of their elective offices will hang in the balance. As each an every member of the House will, in less than twelve months time, be required to stand before his or her constituents and defend this vote, the consequences to the House of Representatives for a vote to impeach are potentially high indeed; politically, for the House of Representatives impeachment is very much a "life or death" vote.

If the partisan rancor that has defined this process thus far continues, it is reasonable to presume the Articles of Impeachment will achieve a majority vote in the House, and President Trump will be impeached. Then it will move to the Senate, where the impeachment trial is held, and all the evidences developed thus far will be re-litigated, and the Senate sitting as jury on the impeachment trial will adjudicate whether the burden of proof has been met to convict the President of high crimes and misdemeanors.

If the partisan rancor that has defined this process thus far continues, it is reasonable to presume the Senate will not convict President Trump. The Republicans seem unlikely to turn against a Republican President unless the case presented were damning and overwhelming.

If the partisan rancor that has defined this process thus far continues, it falls to the American electorate to, in twelve months time, adjudicate the conduct of their elected representatives by voting either for or against their re-election. It seems likely that at least some will not be re-elected as punishment for their vote on impeachment.

Yet the partisan rancor has left unanswered virtually all of the questions that arise from this impeachment as an aside to the core question of whether President Trump abused his office or not. Left unanswered is the propriety of the United States providing military aid to Ukraine. Left unanswered is the necessity of establishing whether Hunter Biden or Joe Biden engaged in a criminal "pay to play" scheme involving Burisma. Left unanswered is the role American wealth plays in American diplomacy.

This is the greatest disappointment regarding this impeachment process, for it is these unanswered questions that are the true business of this nation. How we deploy our treasure overseas is at least as important has how we deploy our troops, and yet both sides of this debate have proceeded with the implicit premise that the deployment of our treasure is not even worthy of discussion.

The greatest criticism of this impeachment process is thus that, far from inspiring and enervating public debate, both sides have used the process to quash that debate. The Democrats repeat phrases such as "high crimes and misdemeanors" and "abuse of power" with a cultish confidence that denies the inherently problematic meanings behind the terms. The Republicans echo President Trump's defense of "read the transcripts" while ignoring the reality that many have read the transcripts only to reach a different conclusion regarding Trump's guilt. Whether in the Congress or among the public, neither side seems particularly interested in listening or responding to the various concerns  of the other. 

Everyone is talking. No one is listening.

Impeaching the President of The United States is a serious thing. Congress needs to approach impeachment seriously. If the evidence presented proves anything at all, it is that Congress has been anything but serious in this impeachment process.

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