Blog No. 242 Impeachment: Craven Republicans and Impatient Democrats

The recently concluded hearings before the House Intelligence Committee established two things. First, it is clear that Donald Trump engaged in conduct that is eminently impeachable. Specifically, the president hi-jacked for his own personal political use, military aid to an ally that had been appropriated by Congress and that was desperately needed by the ally. Call it extortion or call it bribery, if the Founders believed that such an abuse of power could not be challenged, they would not have bothered with putting a provision for impeachment in the constitution. The Republican “defenses” asserted by Congressmen Devin Nunes and Jim Jordan were anticipated in Blog No. 240, “Trump Impeachment: The Counter-Narratives.” As indicated in that blog, those defenses are utterly without substance. It may be noted that even Nunes and Jordan could not bring themselves to advance the demented “Crowdstrike theory” to which the President still clings.

On the other hand, it is equally clear that Republicans in both the House and Senate are unmoved, and are likely to remain so, unless and until there is some further evidence that is dramatically damning and irrefutably clear. Moreover, the general public also appears largely unmoved. Depressing as that combination of facts may be, it is not particularly surprising and it was in fact foreseen here in previous blogs.

Nevertheless, Democrats seem determined to barrel ahead at an accelerated pace, with reports that they may seek to have the Intelligence Committee file a report with the Judiciary Committee, and have the Judiciary Committee draft Articles of Impeachment and present them to the full House for a vote before the end of the year. The reason for this breakneck pace is unclear, particularly when there are major witnesses yet to be heard from: among others, Mick Mulvaney, John Bolton, Rudy Giuliani and (apart from the Ukraine inquiry) Don McGahn. Intelligence Committee Chairman Adam Schiff has said that there was no reason to delay impeachment to await court rulings that might compel such witnesses to testify:

“Yes, we’d love to have these witnesses come in,” Schiff said. “But we’re not willing to simply allow them to wait us out — to stall this proceeding — when the facts are already overwhelming.”

The problem with Schiff’s analysis is that, while he may regard the evidence as overwhelming, and so might I for that matter, the Republicans needed to convict have a far different view. A telling example was provided by the observations of Congressman Will Hurd during Fiona Hill’s testimony. Hurd is a moderate Republican and, having announced that he will not run for reelection, is not subject to retaliation in the form of a primary challenge. Yet Hurd made the following comments during the Fiona Hill hearing:

There’s also a lot we do not know. We have not heard from Rudy Giuliani. We haven’t heard from Hunter Biden. I’d like to know more about both of their activities, why they talked to whom and to whom. Despite promises from Chairman Schiff, we have also not heard from the whistleblower, something that can occur in a closed setting without violating his or her anonymity. We need to understand the motivations and level of coordination that happened prior to his or her submission of the complaint.

Where does this leave us? An impeachable offense should be compelling, overwhelmingly clear, and unambiguous, and it’s not something to be rushed or taken lightly. I’ve not heard evidence proving the president committed bribery or extortion.

To begin with a brief digression, I would categorically reject Hurd’s suggestion that the whistleblower be called as a witness. The sole importance of the whistleblower was to trigger the investigation. His memorandum was admittedly not based on first hand evidence but has now been corroborated and supplanted by such evidence. The only consequence of calling the whistleblower to testify would be to risk disclosing his identity and subjecting him to retaliation, official and unofficial. Needless to say, it would also serve to intimidate further whistleblowers. In short, the suggestion is reckless and irresponsible and I am surprised and disappointed that Hurd would make it.

Apart from that issue, I disagree with Hurd’s assessment of the evidence; but it is what it is, and Hurd is not a partisan hack of the Jordan or Nunes stripe. As the Atlantic put it, “If Democrats can’t persuade a moderate Republican like him to vote to impeach President Trump, they’re unlikely to win over any Republicans at all.” The Atlantic’s conclusion is almost certainly true, at least on the state of the evidence as it exists today. It is fortified by the fact that many Republicans who, unlike Hurd, are hoping to remain in office but live in fear of a nasty tweet from the president that would spark a primary challenge. The moral fortitude of the latter, or the lack thereof, is depressing to contemplate. It would be tempting to charter enough buses to transport them to Arlington National Cemetery where they might walk among the graves of those who risked and gave their lives for their country. Perhaps our representatives would then reflect on whether it is really too much for them to risk, and perhaps lose, a seat in the House or the Senate in support of the constitution.

When the Democrats decided on an impeachment inquiry, a number of them expressed the thought that, confronted with impeachable conduct, they bore a moral and constitutional duty to impeach without regard to the likely outcome. I understand their position, but respectfully disagree. In my view, the overriding moral and political imperative is to remove Trump from office; impeachment, however warranted, should have been initiated only if it was likely to bring about, or contribute to, that result. Moreover, once initiated, it should not be hastily executed, as if to check that box on a form, and left for burial in the Senate. Impeachment should be pursued, if at all, with what the Supreme Court described (in a quite different context) as all deliberate speed.

In this case, deliberate speed means at a pace and in a manner that allows for the development of all the evidence, perhaps including some that might prove convincing to at least a portion of the Trump base and hence to spineless Republican Senators. There is surely no guarantee that such evidence will emerge, but then again it just might if given a chance. It may be recalled that the Nixon investigations played out over many months. Even after months of “wallowing in Watergate” with the dramas of the Ervin Committee hearings, the Saturday Night Massacre, the 18½ minute gap and the indictment of Nixon’s closest advisers, there was no assurance that an impeachment by the House would be followed by a conviction in the Senate. That result was not foreordained, and Nixon was not forced to resign, until the Supreme Court ordered the production of the second group of subpoenaed tapes which included the “Smoking Gun Tape” of June 23, 1972.

Will the equivalent of a Smoking Gun Tape appear here? That possibility can hardly be ruled out given the number of fronts on which Trump’s position may unravel:

• On Monday, a federal court held that former White House Counsel, Don McGahn, has no absolute immunity from testifying. While this ruling will doubtless be appealed, it was supported by a strong opinion. It may lead to similar orders in the case of other subpoenaed witnesses who may have vital information.
• On Monday the Supreme Court temporarily stayed orders by lower courts for the production of Trump’s tax returns, but set an expedited briefing schedule.
• Trump’s personal attorney, Rudy Giuliani, remains under active investigation by the U.S Attorney in New York while two of his close associates in Ukraine matters have been indicted.
• The federal appeals court in New York refused to block a subpoena for Trump tax records by the Manhattan District Attorney. An application for a stay is pending before the Supreme Court.

Disclosure of Trump’s tax returns might reveal financial ties to Putin and Russian oligarchs that would help to explain many of Trump’s actions — including his devotion to the bizarre claim that Ukraine, and not Russia, hacked the DNC computer in 2016.

It has frequently been observed that litigation between Congress and the President over subpoenas may take many months. Indeed it may, yet it need not. As noted in a previous blog, it required just over three months from the service of the subpoena to the Supreme Court decision ordering production of the Smoking Gun Tape. While there is no assurance of such expedition here, it could come at the hands of Chief Justice Roberts, whose regard for the Court as an institution is well known. Roberts could determine that he did not want the Court seen as a partner in helping Trump to run out the clock. In any event vigorous pursuit of judicial remedies might well be a wiser course for House Democrats than rushing to an impeachment doomed to resounding failure in the Senate.