Setting the Rules for the Impeachment End Game

While House Democrats from Trump-supporting congressional districts agonized over a painful vote on two articles of impeachment this week, Senate Minority Leader Chuck Schumer sent Senate Majority Leader Mitch McConnell his list of demands for setting the ground rules of the Senate impeachment trial, expected to begin during the second week of January.

In anticipation of the trial, McConnell has removed all legislative business from the Senate’s calendar for the month of January. All 100 senators will be required to sit as impartial jurors for the entire duration of the trial, which will be presided over by Chief Justice John Roberts.

A guilty vote by at least a two-thirds majority of senators present is required for President Trump to be convicted and removed from office. Since Republicans hold a 53-47 majority in the Senate, Democrats would have to convince at least 20 Republican senators to cross party lines to convict Trump, which is highly unlikely, given the fact that 80-90% of Republican voters still strongly support the president, and would turn against any Republican officeholder supporting his ouster.

For this reason, even most Democrats now concede that the ultimate outcome of impeachment process is not in doubt. Trump is virtually certain to be acquitted by the Senate and remain in office, which is why Democrat leaders are now more concerned about the impact of the impeachment trial on currently uncommitted voters in the 2020 general election.

Democrat are deeply disappointed by the failure of the House impeachment proceedings to do any damage to Trump’s popularity. On the contrary, opinion polls in several crucial 2020 battlegrounds show that Trump has gained popularity, prompting some Democrat leaders to fear that the highly partisan House impeachment process has actually strengthened Trump’s chances to win re-election.

That concern is greatest among the 31 House Democrats whose districts were carried by Trump in the 2016 election. The vote that all but two of them – Collin Peterson of Minnesota, and Jeff Van Drew of New Jersey – took on October 31 to formally inaugurate the impeachment investigation was tough enough. These Democrats know that this week’s vote accusing the president of wrongdoing serious enough to remove him from office will not be easily forgiven by pro-Trump voters in their districts. The number of such Democrats who refuse to vote for the two articles of impeachment will be seen as a measure of the doubt within Democrat ranks about the wisdom of their impeachment strategy.

MCCONNELL TAKES CONTROL

As Majority Leader, McConnell has total control over the ground rules of the impeachment trial in the Senate, in the same way that Speaker Nancy Pelosi controlled the process of taking testimony and drafting articles of impeachment in the House.

“The trial must be one that not only hears all of the evidence and adjudicates the case fairly; it must also pass the fairness test with the American people,” Schumer wrote to McConnell in a letter. “That is the great challenge for the Senate in the coming weeks.”

Schumer and the Democrats are trying to generate public pressure on McConnell to set rules which would enable them to call senior Trump administration official as witnesses in the Senate trial, who resisted calls to testify during the House proceedings. However, their case is weakened by Pelosi’s refusal similar requests from Republicans when she set the rules for the House impeachment hearings.

Under Schumer’s proposal, the Senate trial would begin on January 6, even though the senators won’t be sworn in as jurors until January 7, and House impeachment managers would begin their presentations against Trump on January 9. His proposed procedural rules are similar to those which guided President Bill Clinton’s 1999 Senate impeachment trial, including giving House members acting as impeachment prosecutors and Trump’s defense team 24 hours each of presentation time to make their cases, eight hours for witness testimony, 16 hours for Senate members to ask their questions to either side, six hours for final arguments and 24 hours, at the end of the trial, for senators to deliberate before casting their votes to determine whether Trump should be convicted and ousted from office.

Schumer also wants subpoenas to be issued by Justice Roberts for documents that the administration withheld from the House impeachment process, as well as for testimony from acting White House chief of staff Mick Mulvaney; Robert Blair, a senior adviser to Mulvaney; former national security adviser John Bolton; and Michael Duffey, a top official at the Office of Management and Budget – all of whom threatened to challenge in court the subpoenas they received to testify in the House impeachment proceedings.

MCCONNELL REJECTS SCHUMER’S WITNESS REQUEST

On Tuesday morning, McConnell rejected the Schumer’s request to call for multiple new witnesses in the Senate impeachment trial. He dismissed the proposal as a “fishing expedition” that would set a “nightmarish precedent” and encourage future “dubious” and “frivolous” impeachment inquiries.

“If House Democrats’ case is this deficient, this thin, the answer is not for the judge and jury to cure it here in the Senate. The answer is that the House should not impeach on this basis in the first place,” McConnell said.

Some Democrats also want Trump’s private lawyer, Rudy Giuliani, to be forced to testify at the Senate trial, because he encouraged Trump to ask Ukraine’s president to launch a corruption investigation of the Bidens, triggering the actions which led to his impeachment. Giuliani has been continuing his own investigation in Ukraine and claims to have recently found new evidence of its interference in the 2016 US election.

McConnell said the job of finding evidence was the responsibility of House Intelligence Committee Chairman Adam Schiff, who did a rush job. As a result, he said that Schumer is now looking “to make Chairman Schiff’s sloppy work more persuasive.”

Schumer quickly took to the Senate floor to respond, saying, “I listened to the leader’s speech. I did not hear a single sentence, a single argument for why the witnesses I suggested should not give testimony.” Schumer complained that McConnell had not yet met with him to discuss the ground rules for the trial.

McConnell had previously accused Schumer of trying to “short-circuit” their plans to negotiate the Senate trial together, and faulted Schumer for releasing his letter suggesting trial ground rules to the media before meeting with him to discuss the matter face to face.

DEMOCRATS SEEKING MISSING TESTIMONY

Democrats are hoping that one or more of the people in Trump’s inner circle will provide direct testimony about Trump’s real reasons for delaying $391 million in military aid to Ukraine, which they will use as proof that he abused his power as president. Without their testimony, the case for the first article of impeachment lacks any direct evidence of Trump’s allegedly selfish motivation for withholding the aid: his desire for a Ukrainian investigation that would embarrass his most likely opponent in next year’s presidential election.

Because the Democrats never produced the evidence they needed to prove that Trump was guilty of offering the president of Ukraine a corrupt quid pro quo, it became impossible for them to charge Trump with bribery, one of the legitimate reasons for impeachment explicitly mentioned in the Constitution. Instead, they had to rely on the far more subjective and constitutionally questionable accusation of abuse of power.

House Democrat leaders said they decided not to challenge the refusal of these witnesses to honor their subpoenas in court because it would take too long to get a ruling, and claimed it was more urgent to remove Trump from office as quickly as possible. This deliberate strategy now enables Trump and his supporters to argue that the president was well within his rights, under the constitutional doctrine of separation of powers, to forbid the witnesses from testifying to matters protected by the administration’s executive privilege.

Because the Democrats did not challenge that claim in court, they could not legitimately charge Trump with obstruction of justice. Instead, they had to invent a new non-crime, “obstruction of Congress,” as the basis for their second article of impeachment.

WHERE IS THE “HIGH CRIME?”

While it may not be strictly necessary to prove that the president broke a specific federal law in order to justify his impeachment, the absence of such an offense makes it much harder for Democrats, in this case, to meet the Constitution’s standard for removal from office: proving the commission of “high crimes and misdemeanors.”

Republicans now say that it was up to the Democrats to do their homework by compiling all the evidence they needed to back up their articles of impeachment before submitting them to the Senate, and that it is too late for them to seek permission to go fishing for new evidence against Trump from additional witnesses during the Senate trial.

“The House can’t decide not to go to court, send us a half-baked case, and then say now, ‘You make something out of it,’” said Missouri Senator Roy Blunt.

Iowa Senator Joni Ernst added, “We don’t need to clean up their sloppy job.”

PRESIDENTIAL AUTHORITY OVER FOREIGN AFFAIRS

The Constitution gives the president near-total authority over the conduct of foreign affairs, and historically, it is not unusual for presidents to exercise that authority by attaching conditions to the release of US aid to foreign countries. It is assumed that when he does so, the motivation is to serve the national interest, rather than giving the president a domestic political advantage, but in practice, the two are frequently inseparably intertwined.

Trump and his supporters claim that the aid to Ukraine was not delayed because he wanted an investigation that would embarrass Joe Biden, but rather to pressure other European countries to give aid to Ukraine as well.

Republican Senator Rand Paul said in a CNN interview Sunday that Trump was also justified in asking for a corruption investigation from Ukraine’s president before turning over American foreign aid, because “all the governments of Ukraine have been corrupt.”

Paul noted that regarding the foreign aid “money we gave him to give to Ukraine, it says specifically in the law he has to certify they are less prone to corruption. So, I mean, he was instructed by Congress to do exactly what he asked to be done.”

The Kentucky Republican added, “If you listened to the president’s speeches throughout his campaign and throughout his administration, he’s been concerned with corruption with regard to foreign aid. Every time I talk to the president, he’s talking about how countries are taking from us and not doing as we have asked them to do and not being good allies.”

The case for the second article of impeachment, which accuses Trump of obstruction of Congress, is also inherently weak, because House Democrat leaders decided not go to federal court for a ruling that would uphold the authority of the subpoenas that the members of Trump’s inner circle refused to obey on the president’s orders. Defenders of the president in his Senate trial can therefore argue that he was within his legal rights in ordering them to defy the subpoenas, on the grounds of executive privilege.

NEW WITNESSES COULD BE DANGEROUS TO BOTH SIDES

Democrats need to realize that their demands for potentially embarrassing testimony from members of Trump’s inner circle could justify similar demands by Trump and some of his supporters for the public questioning of witnesses who could exonerate the president’s actions. They include former Vice President Joe Biden and his son Hunter, House Intelligence Committee chairman Adam Schiff, and the whistleblower who filed the original complaint to the intelligence community’s inspector general over Trump’s July 25 phone call with Ukraine’s president.

The Bidens’ testimony might show that Trump was justified in asking the president of Ukraine for a corruption investigation of their activities. It is an established fact that Hunter Biden sat on the board of Ukrainian energy company Burisma Holdings for five years and was paid as much as $80,000 a month, despite having no expertise in the energy sector. He apparently got the job only because his father, the vice president, had been designated by President Obama in February 2014 to take charge of US policy towards Ukraine.

In March 2016, Vice President Biden gave the Ukrainian government an ultimatum. He demanded the firing of state prosecutor Viktor Shokin, who was investigating Burisma, or else Biden said he would cancel a $1 billion American loan guarantee to Ukraine. The Democrats and the anti-Trump press have insisted that the Bidens did nothing illegal in Ukraine, but Senate testimony during an impeachment trial about their activities in Ukraine could prove damaging to Joe Biden’s 2020 presidential election campaign.

The testimony of Schiff and the whistleblower could also show that they secretly colluded to craft the complaint to the inspector general, which served as the basis for launching the impeachment investigation.

The articles of impeachment were passed by the House Judiciary Committee after three days of deliberations under the leadership of its chairman, New York Congressman Jerry Nadler. On Thursday, December 12, the second day of hearings, the committee debated for 14 hours. Republicans extended the debate by offering a series of amendments to the articles and challenging the allegations they made against the president.

DONALD TRUMP’S DEFENSE

Congressman Jim Jordan and other Republicans on the Judiciary Committee presented a four-point defense of Trump against the accusation that he abused his power by pressuring the Ukrainian president to announce an investigation into Biden, his most likely opponent in next November’s presidential election.

First, both Trump and Zelensky say there was no pressure applied. Second, the transcript of their July 25 conversation does not indicate Trump making any demands or setting any conditions. Third, Ukraine was not aware at that time that the military aid was delayed. And fourth, the aid eventually flowed to Ukraine without it making any announcement of investigations. Republicans argue that the timing of the aid release, on September 11, was determined by the congressional requirement that it be transferred to Ukraine, a two-week process, by the end of the 2019 fiscal year on September 30, rather than the first media reports about the whistleblower’s complaint at about the same time.

Republicans also complained that during the committee hearings, Democrats had no new evidence to prove that Trump had committed an impeachable offense.

Democrats on the committee were furious at the Republicans for dragging out that hearing to delay the final votes on the articles of impeachment until late in the evening, so that it would not be reported on the prime-time evening news.

The two sides reached an agreement to cut the debate short after coming back from a short break at about 10:00 p.m. But just as the debate was winding down, Nadler abruptly ended the meeting and announced that the final vote on the two articles of impeachment would be held the following morning. Outraged committee Republicans accused Nadler of breaking the deal they had just made with him to stop offering amendments so that the vote could receive better news coverage the next day.

The Judiciary Committee’s ranking Republican, Congressman Doug Collins, called Nadler’s move to cut the meeting short “the most bush league stunt I’ve ever seen in my entire life. Words cannot describe how inappropriate this was.”

The nine-page impeachment resolution was passed on a 23-17 party line vote that Friday morning, and scheduled for a vote by the entire House on Wednesday, December 18, two days before Congress was to break for recess for its traditional end-of-year vacation.

WHY THERE WERE ONLY TWO ARTICLES

Prior to the Judiciary Committee’s debate, Speaker Pelosi and House leaders decided to focus on just two of the charges against Trump, to simplify their impeachment case. Democrats decided not to accuse Trump of bribery or trying to obstruct the investigation by special counsel Robert Mueller into the bogus Russian collusion allegation, even though both charges had been seriously considered during the impeachment hearings held by Schiff’s intelligence committee.

In the end, Democrats realized they would have a difficult time proving that Trump was guilty of trying to bribe Ukrainian President Volodymyr Zelensky with delayed US aid, since the aid was eventually delivered without Ukraine having to announce the corruption investigation Trump had requested. In fact, Zelensky was probably not even aware that the aid had been delayed when he and Trump had their phone conversation in July.

Similarly, Democrats realized that, despite their lingering suspicions that Trump had colluded with the Russians in the 2016 election, the Mueller report lacked sufficient evidence for them to prove that he should be impeached for having obstructed Mueller’s investigation.

On Monday, Nadler released a 658-page report explaining his committee’s reasons for approving the two articles of impeachment. It concludes that Trump “betrayed the nation by abusing his high office to enlist a foreign power in corrupting democratic elections.” It adds that he “has fallen into a pattern of behavior: this is not the first time he has solicited foreign interference in an election, been exposed, and attempted to obstruct the resulting investigation. He will almost certainly continue on this course. For all the reasons given above, President Trump will continue to threaten the Nation’s security, democracy, and constitutional system if he is allowed to remain in office.”

In response, Congressman Collins said the articles of impeachment failed to establish any impeachable offense. He argues that “an accusation of abuse of power must be based on a higher and more concrete standard than conduct that ‘ignored and injured the interests of the Nation.’”

Republican Congressman Steve Chabot argues that, “The House of Representatives has never adopted alleged abuse of power as a charge in a presidential impeachment. Why? Because there’s no criminal statute describing what alleged abuse of power actually is. Abuse of power is therefore a vague, ambiguous term open to the interpretation of every individual, because abuse of power lacks a concise legal definition.”

AN ILLEGITIMATE IMPEACHMENT

Former Harvard University law professor Alan Dershowitz believes that the entire Democrat impeachment effort lacks constitutional legitimacy, writing, “Neither of these proposed articles satisfy the express constitutional criteria for an impeachment, which are limited to ‘treason, bribery, or other high crimes and misdemeanors.’ Neither are high or low crimes or misdemeanors. Neither are mentioned within the Constitution. Both are so vague and open ended that they could be applied in partisan fashion by a majority of the House against almost any president from the opposing party.”

Dershowitz concludes that “[the Democrat] majority of the House is simply making it up as they go along in the process, thus placing themselves not only above the law but above the Constitution.” He also says that the Senate should refuse to conduct an impeachment trial based on the two articles passed by Nadler’s committee, because they “are unconstitutional and therefore void,” and that going forward with such a trial “will certainly do considerable damage to the rule of law.”

President Trump has tweeted his disdain for the articles passed by the Judiciary Committee, declaring that “the impeachment hoax is the greatest con job in the history of American politics!”

IMPEACHMENT HAS UNIFIED THE REPUBLICANS

While Trump and his supporters were at a severe disadvantage during the Democrat House impeachment process, the sympathy it generated for the president has unified Republican ranks and boosted their campaign coffers.

The National Republican Congressional Committee has been focusing on the 31 House Democrats representing districts which voted for Trump in 2016, and pressuring them to not to support the two articles of impeachment. Outside conservative groups have also spent more than four times as much money targeting those House Democrats on impeachment than their liberal counterparts have spent defending them. The Republicans hope to nationalize the focus of the 2020 election to regain majority control of the House by defeating the Democrats in those 31 House seats, in addition to securing Trump’s re-election.

In their lines of political attack, most Republicans and their outside allies do not try to defend Trump’s conduct with regard to Ukraine. Instead, their talking points say that “no impeachable actions occur,” which is a statement upon which even Republicans who privately don’t like Trump can agree. They also can join in portraying Democrats as obsessed with impeachment while ignoring other legislative goals needed to address the country’s other problems.

When they meet with voters these days, most Democrats, except those directly involved in the impeachment process, prefer to talk about almost anything else. They plan to run for re-election on more localized issues that appeal to independent voters, and hope they will forget the role Democrats played in an impeachment process which many independents perceive as overly partisan and unfair.

MCCONNELL WORKING WITH THE WHITE HOUSE

Meanwhile, Senate Majority Leader McConnell has said that he is working in “total coordination” with the Trump White House on preparation for the Senate impeachment trial.

After a meeting between White House counsel Pats Cipollone and White House legislative affairs director Eric Ueland in McConnell’s office, Ueland said, “We are having a lot of good conversations with Senate Republicans. . . as we work through all these issues and priorities the President has outlined when it comes to where we should go on these articles [of impeachment].”

Congressman Jerry Nadler has complained that Republican senators like McConnell should not be working with the White House, because when they are sworn in as jurors in the impeachment trial, they will have to take an oath to “do impartial justice.”

But Senator Ted Cruz and other Republican senators disagree with Nadler. Cruz said in an ABC interview that impeachment is “inherently a political exercise” and, in this case, a “partisan show trial,” adding, “Senators are not required, like jurors in a criminal trial, to be sequestered, not to talk to anyone, not to coordinate. There’s no prohibition.”

Senator Lindsey Graham was unapologetic about his intention to support Trump in the impeachment trial. “I am clearly made up my mind. I’m not trying to hide the fact that I have disdain for the accusations in the process,” he said in a CBS News interview. Graham also told CNN, “I’m not trying to pretend to be a fair juror here.”

Graham also said, “I think impeachment is going to end quickly in the Senate. I would prefer it to end as quickly as possible. Use the record that was assembled in the House to pass impeachment articles as your trial record.”

He added, “I’m not in the camp of calling a bunch of witnesses.” Instead, he wants his Judiciary Committee to schedule separate hearings to receive testimony from Rudy Giuliani about corruption and election interference in Ukraine.

“I want to end this [impeachment] matter quickly and move on to other things,” Graham said. “We can look at what Rudy’s got and Joe Biden and Hunter Biden and anything else you want to look at after impeachment, but if Rudy wants to come to the Judiciary Committee and testify about what he found, he’s welcome to do so.”

ADVANTAGES OF A SHORT TRIAL

Senator McConnell is also in favor of keeping the impeachment trial short, with no new witness testimonies. He is confident that it would result in an easy acquittal for the president because, at the moment, none of the 53 Senate Republicans would vote in favor of Trump’s impeachment. On the other hand, permitting new witnesses to testify during the Senate trial could lead to unexpected revelations with unpredictable consequences for both Democrats and Republicans, resulting in what McConnell called, “mutually assured destruction,” a phrase invented during the Cold War to explain the fear that prevented the US and the Soviet Union from starting nuclear attacks.

President Trump, on the other hand, has said, “I wouldn’t mind a long process,” revealing his desire to be vindicated in the course of the Senate trial and exacting revenge on his accusers, as well as exposing the whistleblower whose complaint instigated the impeachment process.

Georgia Senator David Perdue, in whom Trump is known to confide, said that acquittal alone would not be enough to satisfy the president. “[He] wants his day in court,” Purdue said. “He feels like he has not been able to have any defense over in the House. He has not. He’s been denied the No. 1 right all of us have, which is to face his accuser and have our defense represented.”

Even if McConnell decides not to permit any new witness testimony during the Senate trial, his decision could be overturned with a simple majority vote of the 100 senators. Since all the Senate Democrats want new witnesses to testify, McConnell cannot afford to lose the support of more than two of the 53 Senate Republicans to sustain his position on this issue. That is not inconceivable, because some Republican senators have said privately that they would also like to see the plot against Trump between Adam Schiff and the whistleblower exposed, and the Bidens further embarrassed. Since Trump is known to feel the same way, they might also not fear retaliation from McConnell.

WHO MIGHT CHANGE SIDES?

The Senate Republicans who might be persuadable to turn against Trump in the impeachment trial are Mitt Romney of Utah, who was a leader of the never-Trump movement in the 2016 GOP primary campaign, Lisa Murkowski of Alaska, and Susan Collins of Maine. On the other hand, two senators from very pro-Trump states, Joe Manchin of West Virginia, and Doug Jones of Alabama, are the Democrats most likely to break party line and vote to acquit Trump in the Senate trial.

Most of the freshman House Democrats from the 31 pro-Trump districts are likely, in the end, to remain true to their party. A notable exception is Jeff Van Drew of New Jersey, who was one of two who voted against starting the impeachment process on October 31. Van Drew said that he did not believe that Trump’s handling of US policy towards Ukraine met “the very specific” requirements for “disenfranchising voters” by removing a president from office. He told reporters that impeachment “was supposed to be bipartisan, it was supposed to be incontrovertible, it was supposed to be something that was always [only resorted to in] the rarest of circumstances. Well, it’s not bipartisan.”

After meeting privately with President Trump in the White House last Friday, Van Drew announced that he plans to switch parties and become a Republican. Six of his congressional staff members then announced that they were quitting, and leading Democrats condemned him as a traitor.

Congressman Collin Peterson, who was the other Democrat to vote with Van Drew on October 31 against launching the impeachment effort, also said he would vote against the articles of impeachment this week, but he has no current plans to leave the party.

Peterson said Trump “has not committed a crime,” and that most people in his congressional district oppose foreign aid, so they are not troubled that Trump withheld funds from Ukraine. He complained that most of the evidence which Democrats produced against Trump is based upon “second-hand” information about Trump’s phone call with Ukraine, but that his “biggest problem” with the impeachment process was that the people behind it made up their minds in advance, “and now they’ve spent a year trying to figure out how they can make a case for it. That’s backwards. I just don’t agree with this.”

The only defector among House Republicans is Michigan’s Justin Amash. The five-term congressman who calls himself a conservative libertarian had always been considered a Republican maverick. Amash was boycotted by other Republicans in May after he came out in favor of Trump’s impeachment on the basis of the obstruction of justice incidents cited in the Mueller report. In July, Amash renounced his membership in the Republican Party and declared himself to be an Independent. Some Democrats have suggested that Amash be appointed one of the House managers to argue the impeachment case against Trump in the Senate trial.

Some Democrats have accused all other House and Senate Republicans who have remained loyal to Trump of selling out their country in the name of party loyalty, but Republicans respond that, in their haste to pass articles of impeachment before the end of this year, Democrats have failed to collect enough hard evidence against Trump to make a convincing case that he committed an impeachable offense.

IMPEACHMENT CALLS ON THE EDITORIAL PAGE

The editorial pages of many of the nation’s largest newspapers, which have been highly critical of Trump’s policies since he took office, were quick to endorse the articles of impeachment last week and call upon the Senate to convict him and remove him from office. The list includes the New York Times, Washington Post, USA Today, Los Angeles Times, Boston Globe, New York Daily News, Chicago Sun-Times, Philadelphia Inquirer, Tampa Bay Times, Orlando Sentinel and the San Francisco Chronicle. A notable exception was the editorial page of the Wall Street Journal, which has taken a more even-handed approach towards Trump and his policies since he entered the White House.

The Journal’s editorial called the Democrats’ impeachment case against Trump “weak” and their claim that he is guilty of “abuse of power” so vague that it would create a “a new and low standard for impeachment that will come back to haunt future Presidents of all parties.”

It also said the politically driven impeachment process was primarily launched by the Democrats simply because they hate Trump and his style of governing.

“There was wide agreement that Richard Nixon and Bill Clinton violated criminal statutes,” the editorial board noted. “In this case, Democrats don’t even try to allege a criminal act.”

These comments reflect the fact that the minds of almost all Americans about Donald Trump had been made up long before the Ukraine accusations surfaced. That is why two months of impeachment hearings haven’t had any significant effect on Trump’s standing in the opinion polls, and the public seems so disinterested in the details of the Ukraine affair.

Most American voters have long known the worst about Donald Trump, and many have decided to give him their support anyway. The hysterical charges hurled against him during the current impeachment process only served to further reveal the frustration and desperation of his accusers.