Speculation continues to swirl about the strategy behind House Speaker Nancy Pelosi’s unexpected decision to delay the transmission of two articles of impeachment against Donald Trump to the Senate, especially after she was so eager to rush their approval before the House adjourned for its end of the year recess last week.
As soon as Pelosi had Trump where she supposedly had wanted him – facing a Senate impeachment trial that could remove him from office – she reversed course. Within minutes of the intensely partisan House vote she engineered for two constitutionally questionable articles of impeachment, she announced that the House would not transmit them to the Senate for trial anytime soon.
Throughout the impeachment process, Pelosi claimed that President Trump’s reckless actions had forced her, reluctantly, to take such drastic action to protect American democracy. But immediately after the House voted to approve the articles of impeachment, Pelosi announced she would hold the articles back, freezing the process until she was assured that Senate Majority Leader Mitch McConnell would go forward with the impeachment trial in good faith.
McConnell reacted the next morning by condemning the Democrat-led effort as “the most rushed, least thorough, and most unfair impeachment inquiry in modern history.” Speaking on the Senate floor, he said, “It’s like the prosecutors are getting cold feet in front of the entire country and second-guessing whether they even want to go to trial. . . House Democrats may be too afraid to even transmit their shoddy work product to the Senate.”
Pelosi insisted on dictating to McConnell “the process that is set forth in the Senate” for Trump’s trial. “Frankly, I don’t care what the Republicans say,” Pelosi said. “We would hope there would be a fair process just as I hope they would honor the Constitution.”
Pelosi’s condition for allowing the impeachment process to go forward by naming the House managers for the Senate trial was McConnell’s agreement to the ground rules that Senate Minority Leader Chuck Schumer had publicly demanded. These include the calling of new senior administration witnesses to add to the testimony gathered by House Democrats, even though that same privilege was denied to Republicans defending Trump during the House impeachment process.
Republicans and the White House view Pelosi’s decision to delay referral of the articles of impeachment as an implicit admission that the weak case that Democrats had built against president was doomed to fail in the Senate unless new evidence could be found.
Trump tweeted, “So after the Democrats gave me no due process in the House, no lawyers, no witnesses, no nothing, they now want to tell the Senate how to run their trial. Actually, they have zero proof of anything, they will never even show up. They want out. I want an immediate trial!”
The president’s defenders claimed that the root of the problem was that Democrats hate Trump so much that they are determined to impeach him regardless of whether they have enough evidence to convince the American people that such a drastic move can be justified.
PELOSI REVERSES HERSELF A SECOND TIME
This was the second time in less than a year that Pelosi had reversed her position on impeachment. After her party won majority control of the House last November, Pelosi steadfastly resisted calls from her fellow Democrats to initiate the impeachment procedures. But on September 25, when word of a whistleblower’s complaint about Trump’s July phone call with Ukrainian President Volodymyr Zelensky exploded in the media, Pelosi gave in. She announced that the impeachment process would begin immediately, even before she had a chance to view the evidence of Trump’s alleged guilt.
Critics say that if Pelosi had delayed that announcement for just one more day, giving her a chance to review the transcript of the phone call that the White House released, she would never have gone forward with impeachment. She would have realized that Trump had not openly offered a bribe to the Ukrainian president for launching a corruption investigation into his likely Democrat 2020 opponent, Joe Biden.
In fact, their conversation was far more ambiguous than media reports suggested. Trump couched his request for the investigation as a “favor,” and made no mention of the $391 million of frozen US military aid to Ukraine which was alleged to be Zelensky’s promised payoff.
Since there was no explicit quid pro quo offer, Trump’s request fell far short of the legal definition of bribery needed to meet the constitutional requirement for a “high crime” to justify impeachment. It became clear that Democrats would have to present separate evidence of Trump’s corrupt intent to support a credible impeachment effort. But producing such evidence would take time – which Democrats didn’t think they had. They worried that an impeachment process which extended into the 2020 presidential primary season would hurt their chances for victory in the November general election.
TOO LATE FOR PELOSI TO CALL IT OFF
That realization came too late for Pelosi to change her mind. Having publicly committed to going forward with impeachment, any attempt on her part to turn back would have sparked an immediate open revolt within Democrat party ranks.
Faced with the difficult choice between a thorough impeachment investigation and a quick one, Pelosi, under intense pressure for action from her own caucus, chose the latter. The president’s reaction was predictable. Aware that the impeachment case was in dire need of more direct evidence of Trump’s guilt, the White House issued orders to everyone in the administration to refuse all House subpoenas for such evidence and testimony on the grounds of executive privilege.
House Democrats could challenge the grounds for that refusal in federal court, but that process would take months, and there was no guarantee that the testimony of such witnesses as acting White House Chief of Staff Mick Mulvaney or former National Security Advisor John Bolton would have any impact on the outcome of the trial. Taking a calculated political risk, Pelosi and the Democrats decided to go forward without their testimony, relying instead on the lower ranking administration officials who were willing to testify immediately.
However, it soon became apparent that none of those witnesses were in a position to provide direct evidence of Trump’s guilt. While they all disagreed with Trump’s decision to withhold military aid from Ukraine, and disapproved of his request for a Ukrainian investigation into the Bidens, none of them had the ability to convincingly “connect the dots” between the two. At best, they could provide second-hand or hearsay evidence, or mere supposition, concerning Trump’s true motivations.
US Ambassador to the EU Gordon Sondland, who was the only witness who had discussed Ukraine policy with Trump directly, said that while he became convinced that release of the aid was contingent on Ukraine launching the corruption investigation, Trump had vigorously denied that he had offered Ukraine’s president a quid pro quo, and insisted that he was only asking Zelensky to “do the right thing.”
Those administration officials who could give direct testimony about the motivations behind Trump’s policies towards Ukraine refused to come forward, and Democrats were unwilling to wait for the courts to force them to testify. The result was an inadequate body of evidence which failed to prove that Trump had acted inappropriately.
The president’s defenders also cited other motives which may have been behind his decision to delay delivering the aid to Ukraine. These include Trump’s frustration with other European powers, which have not yet joined the US in providing aid to Ukraine, as well as Trump’s desire to make sure that Zelensky’s new government was willing to fight Ukraine’s notorious corruption. Some say that Trump’s request was not that outrageous, because the activities of the Bidens in Ukraine were suspicious enough to warrant further investigation, even though Trump was probably unwise to raise the issue in his conversation with Zelensky.
INVENTING A CRIME THAT DOESN’T EXIST
At the end of the day, Pelosi and the Democrats were left with two weak articles of impeachment. The first article, based on the ambiguous claim that Trump abused his presidential powers, is not supported by clear evidence of his corrupt intent, while the second article invents the entirely new crime of obstruction of Congress. The article claims that Trump should be removed from office for asserting his executive privilege in preventing his staff from testifying and for daring House Democrats to challenge that privilege in federal court.
In fact, the Supreme Court has long ruled that the executive branch does not automatically have to submit to congressional subpoenas or demands for documents. The White House refusal to obey such subpoenas is not obstruction; rather, it is an example of the constitutional principle of separation of powers. If the Democrats had gone to court to enforce their subpoenas to force Trump’s inner circle to testify, they very well could have lost.
Another sign of the weakness of the impeachment case against Trump was a court statement by a Democrat lawyer for the House Judiciary Committee that additional articles of impeachment against Trump are still being considered. The statement was made in a brief filed Monday with the DC Circuit Court of Appeals, in which lawyers for the committee argued that there is still a need to compel testimony from former White House Counsel Don McGahn, because he might have information that would justify an additional article of impeachment. McGahn’s testimony was originally requested for the investigation by then-Special Counsel Robert Mueller, but House lawyers now argue that the need for his possible testimony against the president still persists, even though Mueller’s investigation is over and Trump has already been impeached by the House.
RHETORIC INSTEAD OF EVIDENCE
The arguments House Democrats made during the debate leading up to the vote on the articles of impeachment were telling. Instead of pointing to specific, hard evidence against the president, they simply asserted that the “facts are not in doubt” and that Trump’s guilt was “irrefutable” – when, in fact, neither was the case. They also claimed that Trump posed such an immediate and dire threat to American democracy that the country couldn’t afford to wait long enough to develop adequate proof of the charges against him. Democrats warned that the nation could not afford to wait for a court to decide on the legality of the president’s assertion of executive privilege. The delay would allegedly enable Trump to collude with some new foreign power to interfere in the 2020 election. But now, Pelosi has suddenly applied the brakes.
Perhaps that is because the process that Pelosi designed to speed up the impeachment was so blatantly unfair to the president and his Republican defenders that the American public now perceives it as a purely partisan enterprise. Republican claims that Democrats had merely seized upon the Ukraine issue as the most convenient excuse to achieve their longstanding goal of removing Trump from office had the ring of truth. While the process ultimately succeeded in the passage of the articles of impeachment, it utterly failed to accomplish an equally important mission – creating a broad public consensus in support of Trump’s removal from office. In fact, the Democrats’ House impeachment show only solidified Trump’s support among Senate Republicans, who will ultimately decide the fate of Trump’s presidency.
A PUBLIC RELATIONS DISASTER FOR DEMOCRATS
After two months of incredibly boring televised congressional hearings depicting a grossly unfair impeachment process, Democrats only succeeded in creating sympathy for a president who was denied the right to defend himself. Instead of hurting Trump’s job approval ratings, immediately after the articles of impeachment were passed by the House, they hit a new high. From a PR point of view, the impeachment process has been a disaster for Democrats. According to the head-to-head matchups in the latest polls, it has actually hurt the chances of their leading candidates for the nomination to defeat Trump in next November’s election.
Bush White House press secretary Ari Fleischer predicted that Pelosi’s handling of the Trump impeachment “will go down as one of the greatest political mistakes the Speaker has ever made. When you have the momentum of impeachment because your party earnestly believes in it and thinks it’s the right thing to do, and it’s urgent that they remove the president from power because of the peril he presents, and then you sit on it, all you’re doing is showing that this was a hollow exercise all along.
“So, what we know now is that impeachment began without a formal vote to authorize impeachment, and it’s ending now with a thud. They don’t even want to move it over to the Senate because they want to use it for some type of leverage. And there is no leverage to be had on this because it was a waste of time when it began. Now it’s even more of a waste of time.”
CRIMELESS AND TRIALLESS IMPEACHMENT
“This whole impeachment thing has boomeranged on the Democrats so much,” said Matt Schlapp, chairman of the American Conservative Union, “that actually it’s different from what we thought. Talking about it throughout 2020 will actually accrue to the president’s benefit. Crimeless impeachment is now being matched with trial-less impeachment. And it just seems all so absurd.”
Some say that Democrats never believed that the impeachment effort would succeed in removing Trump from office, given the requirement for a 2/3 vote to convict him in a Senate with a Republican majority. Rather, the real goal was to hurt Trump’s chances for winning re-election, which would mean that it has been an even bigger failure than would appear on the surface. That would also explain why Pelosi has refused to send the articles of impeachment, in their current unproven state, to the Republican-controlled Senate, to face certain and embarrassing defeat. The only chance for the Democrat impeachment to succeed, at this point, is for new evidence and testimony to be produced at the trial proving Trump’s guilt, which McConnell seems unwilling to permit.
Pelosi has put herself in an awkward position. She is arguing that the Senate must now agree to admit the additional evidence and witnesses the Democrats need, which she had decided to forgo when she was overseeing the investigation in the House. Pelosi claims that the new evidence is necessary for the Senate trial to be fair. But if that is true, how can Pelosi explain not seeking the same evidence when the House was building the original impeachment case?
MCCONNELL DISMISSES IMPARTIALITY
Meanwhile, McConnell has been defending his position that Pelosi has no right to dictate the rules of the impeachment trial to the Senate or to hold the articles of impeachment hostage. During a Monday interview on Fox News, McConnell said, “[Pelosi] apparently believes that she can tell us how to run the trial.” He also dismissed Democrat complaints about his declared intention to work in cooperation with the White House by pointing out that the Democrat senators who will sit as judges in Trump’s impeachment trial are also biased.
“Do you think Chuck Schumer is impartial? Do you think Elizabeth Warren is impartial? Bernie Sanders is impartial? So let’s quit the charade. This is a political exercise. … All I’m asking of Schumer is that we treat Trump the same way we treated [President] Clinton,” McConnell said.
In the meantime, he noted that he and the Democrats are “at an impasse. We can’t do anything until the Speaker sends the papers over, so everybody enjoy the holidays.”
LOOKING FOR PRECEDENTS
The fact is that there are very few hard and fast rules governing how McConnell and Pelosi are to conduct themselves in this situation. Aside from assigning “sole power” for preparing the impeachment case to the House, and “sole power” for conducting the trial to the Senate, the Constitution provides few details about the process itself, including a specific definition of the “high crimes and misdemeanors” needed to justify the removal of an elected president. In other words, McConnell and Pelosi are largely free to make up the rules as they go along, and to ignore the precedents set in the two prior impeachment procedures, against Andrew Johnson in 1868, and Bill Clinton in 1998.
The procedure that was unanimously agreed to start the Senate impeachment trial for Bill Clinton provided for two weeks of presentations by the House impeachment managers and debate. Then the senators determined by a majority vote of how the rest of the trial would proceed.
In the Clinton trial, no new witnesses were called to testify. Instead, selected portions of the witness testimony in the final report by Independent Counsel Ken Starr were read into trial record before the votes were taken. The article of impeachment charging Clinton with perjury was defeated with 45 votes for conviction and 55 against. The second article, which charged Clinton with obstruction of justice, was defeated by a 50-50 vote.
There is no precedent for the House impeaching the president and delaying the delivery of the articles to the Senate. “It’s just weird,” said Republican Senator Mike Lee, who has clerked for two federal judges and argued cases before the Supreme Court.
“I think I had kind of an idea of what it might look like until the Speaker announced her weird little plan,” Lee added. “I’m not quite sure what to make of that. It remains in suspended animation.”
Some legal scholars say the Senate can simply cite the House votes approving two articles of impeachment and then hold a trial without delay charging the president with abuse of power and obstruction of Congress. Others say that until the articles are transferred from the House to the Senate, Trump technically hasn’t been impeached yet.
Based on previous impeachment efforts, both the House and the Senate have established their own guidelines for conducting an impeachment, which are included in their respective manuals of rules and procedure. But those guidelines in each chamber can be changed by a simple majority vote.
The Senate manual says that an impeachment trial can’t begin until the House names “impeachment managers” to deliver the case against the president at the Senate trial. The House manual calls for it to pass a resolution after the impeachment vote that will name the impeachment managers to be sent to the Senate and authorize them to begin preparing for the trial, but it does not specify a timeframe for that process.
Pelosi referred to that separate resolution at her press conference the same day the House voted on the two articles. “There is a bill made in order by the Rules Committee that we can call up at any time, in order to send it over to the Senate and to have the provisions in there to pay for the impeachment,” she said. “And then, the next step, whatever you want to call it, the trial. That is where you put the managers. I was not prepared to put the managers in that bill yet because we don’t know the arena that we are in.”
As a practical matter, little more is likely to happen until after the current two-week legislative recess is over. Pelosi’s decision to hold off on the transfer of the impeachment articles may not actually delay the onset of the trial, because it was not expected to start until the Senate returns from the current recess in the second week of January.
MCCONNELL VS. SCHUMER
The preferred outcome would be for McConnell and Schumer to strike a deal on the trial procedures during the current recess to avoid a messy political confrontation, but for now, that seems unlikely.
McConnell wants to begin the trial and hear from Trump’s lawyers and the House impeachment managers before deciding whether to call witnesses, which many Republicans oppose to begin with. Schumer wants an immediate commitment from McConnell to permit the calling of new witnesses, including top Trump administration officials who might reveal new information that would incriminate Trump.
But McConnell has rejected Schumer’s demand. “My friend from New York [Schumer] continues to insist on departing from the unanimous bipartisan precedent,” McConnell said. “I continue to believe that the unanimous bipartisan precedent that was good enough for Bill Clinton ought to be good enough for President Trump.”
In 1999, during the impeachment of Bill Clinton, the GOP-controlled Senate voted 100-0 to set up the trial’s terms, and shortly thereafter held a partisan vote on subpoenaing witnesses.
On the day after the House vote on the impeachment articles, when McConnell and Schumer met for the first time to discuss the Senate trial, no progress was made towards an agreement. After their meeting broke up, McConnell called the impeachment case against Trump “slapdash,” and said the precedent it set means “future Houses of either party will feel free to toss up a ‘jump ball’ every time they feel angry. Free to swamp the Senate with trial after trial.”
Schumer responded by saying, “We believe the House’s case is strong, very strong… but if the Republican leader believes it’s so weak, why is he so afraid of relevant witnesses and documents?”
If McConnell and Schumer don’t reach an agreement, McConnell can impose his own rules as long as he can keep at least 51 of the 53 Senate Republicans firmly behind him.
Even if McConnell and Schumer cannot reach agreement, Democrats have one more hope – Supreme Court Chief Justice John Roberts, who is required by the Constitution to preside over the Senate trial. If the Republicans won’t permit the Democrats to call new witnesses, they can appeal to Chief Justice Roberts, who came through for them once before, in 2012, when he validated the highly questionable constitutionality of Obamacare.
But Republicans say they are not worried about such a scenario. They expect McConnell to maintain full control over the Senate’s trial procedures and Roberts to take a passive role, as his predecessor did in the 1999 Bill Clinton impeachment trial.
HOW LONG WILL PELOSI HOLD OUT?
The main question for the moment is how long Speaker Pelosi will delay the start of the Senate trial process.
Speaking on behalf of the Trump White House, Marc Short, the chief of staff for Vice President Mike Pence, confidently predicted that Pelosi “will yield. There’s no way she can hold this position. We think her case is going nowhere … If her case is so air-tight … why does she need more witnesses to make her case?”
Trump ally Senator Lindsey Graham, chairman of the Senate Judiciary Committee, who also served as one of the House managers during the impeachment of Bill Clinton 20 years ago, has expressed his opposition to allowing any witnesses to testify at Trump’s Senate trial. Graham predicted that Pelosi will ultimately be unable “to get Mitch McConnell to bend to her will to shape the trial. She’ll eventually send the articles because public opinion will crush the Democrats.”
In an interview with Fox News host Maria Bartiromo, Graham said, “If you call these witnesses who work for the president after he’s invoked executive privilege … if you deny him his day in court, then you’re abusing the constitutional rights of Donald Trump as president, and you’re putting the entire presidency at risk.”
Republican Senator Lamar Alexander expressed the hope that McConnell and Schumer will be able to settle their differences over the guidelines for the trial amicably, but in the end, he seemed to support McConnell’s position that the new trial should follow the same procedures used 20 years ago. “There’s no reason we can’t agree on what to do the first couple of weeks. That’s what we should do. We ought to agree on how to begin … and then we can stop and say: Do we need more evidence? And then we’ll probably disagree on that.”
SETTING NEW PRECEDENTS
Meanwhile, as the political struggle over impeachment trial rules continues among party leaders, rank-and-file members of the House and Senate have been reduced to interested spectators. Democrat Lou Correa, a member of the House Judiciary Committee, says, “There’s very little written about impeachment, very few rules and you kind of make them up as you go along. I guess in 20, 30 years we’re probably going to have some precedent to look back at.
“This morning, my Republican colleagues and I were talking and some of them were saying, ‘Thank G-d this [impeachment] is over,’” Correa said. “And I thought, it’s just the beginning. This thing is just beginning.”