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impeachment

So Many Reasons Not to Impeach

The president's defense in the Senate trial hoisted a flurry of reasons that impeachment was unwarranted. We put together the following list with our own observations. You can probably think of a couple we overlooked:

Why impeach when the election is so near? has been the most pervasive argument. Let the voters decide whether President Trump should remain in office. Democrats remind us that the moment he heard Robert Mueller's anemic performance before Congress, Trump declared, "I can do whatever I want as president of the United States", and then did precisely that with his phone call to Ukraine the very next day. His Democrat pursuers were persuaded that, allowed to get away unscathed with his Ukraine shakedown, he will do something even more brazen. And it is not just the months until the election that Republicans ask us patiently to wait. Even if defeated, Mr. Trump is still in office for three further months, potentially doing harm with a vengeance — doubly so if defeated — until January 2021.

Precedents for the future were also a concern on both sides. In this case, wouldn't wait for the next election say to future presidents that they can do whatever they want in the year and a half before that election because that's considered an impeachment-free zone?

Ukraine didn't know the funds were on hold , so how would President Zelenskyy think the quo of military aid depended on the quid of pledging to investigate the Bidens and alleged Ukraine involvement in the 2016 American elections? The defense team made a good case for that, showing multiple video segments of hearing testimony in which one after another witness said they only knew of the aid freeze when Politico broke the story, and that was a month later on August 28th. In a trial, those admissions are evidentiary, whereas the Democrats' position is more conjectural. In the call, Zelenskyy is understandably obsequious, scrambling to please and flatter the president, anxious to receive the aid. He may not be aware of a specific quid pro quo, but is he wondering what has become of the $391 million? So he makes the point that "we are almost ready to buy more Javelins from the United States" as if to say to the transactional president, you'll get the money right back! (The defense makes the point that the aid package doesn't include Javelins, but that's clearly not what Zelenskyy thinks. That, we saw, is his #1 ask).

And here's another by-the-way. Ukraine did know of the aid far earlier, which the Republican defense chose to hide.

And not so incidentally, the Democrats ask, if Trump had no quid pro quo in mind, why did he put a hold on the aid? And would he have ever released it (without Zelenskyy going before a microphone ) had he not been caught out?

The money was held because of corruption in Ukraine. If the Republicans are making their case on something not said — no one said "quid pro quo" — so can the Democrats toss aside the claim that the funds freeze was because of corruption in Ukraine. There was no mention whatsoever of corruption in the July 25th phone call even though corruption was on the prepared list of talking points. The entire "favor" was that Zelenskyy look into the strange 2016 conspiracy theory, the Bidens, and "the company that you mentioned" (Col. Vindman's notes say "Burisma" was spoken but he couldn't get the White House minders to put it in the transcript). When his personal attorney, Rudy Giuliani, returned to Ukraine, Trump asked him to prepare a report on his "findings" about Biden, with no mention of corruption in general. The money, for it to be held up, was cleared for release, so where was the concern about corruption? The Defense Department had certified in May, before Mr. Trump put a hold on the funds, and then again in July, that Ukraine had met American-set anti-corruption benchmarks for receiving the money.

And yet the defense in the trial are trying to make the case that the aid was held up bcause the president was acting out of general concern about corruption in that country.

There was no crime. The president did nothing wrong. Impeachment doesn't require that a statutory crime be committed.

The Democrats' Articles of Impeachment elevated Trump's misdeeds to "abuse of power" and thus, it could be argued, they made the strategic mistake of handing the defense a plum. They could say he was not charged with anything specifically in the Constitution. The Founders had trouble creating a list of impeachable offenses, as we learned from commentators suddenly immersed in their writings. The Constitution's authors decided they should not be too specific. So they left it vague at "high crimes and misdemeanors". While "high" at the time meant high office, not maximal crime such as murder, there was not yet the U.S. code setting forth what constituted a crime, so they left it to us to judge.

But the defense argues, with Harvard's Alan Dershowitz on the podium, that the offense must connect with the specifics listed in the Constitution, however scattershot and lacking in definition, as a way of invalidating the impeachment ruling.

But the Founders did stipulate "bribery". What were the Democrats thinking that they did not make that central to their case? In Trump's instance (the burden of proof still to be hefted), it was extortion, the twin of bribery. Bribery is "I'll pay you to do what I ask even though improper"; extortion is "You'll get the money due you only if you do what I ask even in improper". Would the Founders have said that the one is a crime but the other is perfectly OK? So while Trump certainly abused his power, the Democrats left themselves with something more nebulous to prove.

Not so incidentally, Trump did commit crimes, but the Democrats unaccountably left them out of the Articles of Impeachment. As the Senate trial began, the Government Accounting Office said the withholding of funds was illegal, which was obvious without their imprimatur. Without congressional approval, it's a violation of the Impoundment Control Act. And there is also 52 U.S. Code §?30121 which prohibits

"a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election.

What could be clearer, yet there was no mention of these actual laws. Laws no longer matter?

No harm, no foul is shorthand for Republicans arguing that even if someone can prove a quid pro quo, nothing came of it. Ukraine got the $391 million and Zelenskyy didn't have to investigate.

The Democrats made farce of that with their own shorthand; nothing came of it because "he got caught". Trump's plot was exposed. The Republican want you to think that if the bank robber returns the money, there's no crime.

On September 9th, the inspector general of the intelligence agencies notified the House Intelligence Committee of the whistleblower's "urgent concern" complaint. Three House committees immediately launched investigations. Two days later on September 12th, Trump releases the funds. Zelenskyy cancels a CNN interview at which he was to announce the investigations, and neither did they go forward in fact.

It is legitimate to argue that, absent these events, Trump might not have released the funds at all. He was already close to the September 30th end of the U.S. fiscal year, at which point the funding would evaporate by law. It would have to be re-allocated by Congress in the new fiscal year.

It should be remembered that, after a National Security Council (NSC) meeting on August 16th, in which all advocated release of the money except President Trump, who rejected the recommendation, an aide reported that the "president doesn't want to provide any assistance at all".

There was no quid pro quo. No one could prove that the president actually linked the non-payment of aid to the insistence "that President Zelenskyy go to a microphone and say he is opening investigations of Biden and 2016 election interference, and that President Zelenskyy should want to do this himself”, which is what Tim Morrison, who helms the NSC’s Eurasia desk, heard Trump say to Ambassador Gordon Sondland.

But we can scrap "there was no quid pro quo", because a manuscript of John Bolton's forthcoming book circulating in Washington has affirmed the link. In August, President Trump told Bolton, then his national security adviser, that he wanted to continue freezing $391 million in security assistance to Ukraine until officials there helped with investigations into the Bidens.

The president was denied due process in the House proceedings, which made impeachment an illegitimate sham. Three House committees had conducted joint closed-door hearings in the basement of the Capitol to which the president's lawyers were denied access, Republicans could not call witnesses, and some Republicans seemed to think only Democrats could attend. In fact, there were some forty-five Republicans on the committees and not only did they attend, but they were given equal time for questioning.

The more important point is that this first round of hearings, referred to as "depositions", were the equivalent of a grand jury proceeding in which the Democrats were building a case, as well as seeing if they had a case. Unlike for the Nixon and Clinton impeachments, no one had done it for them. The Nixon case was built by special prosecutors, first Archibad Cox, who was fired by Nixon in the infamous "Saturday Night Massacre", and succeeded by Leon Jaworski. Clinton had the latter-day Javert, Ken Starr, pursuing him for four years all the way from an Arkansas land deal to an assignation with Ms. Lewinsky in the White House. In contrast, they had to do it themselves and the White House had no business inserting itself and its lawyers while the House committees built their case. Republicans complaints about "process" were disingenuous.

In the open hearings, Trump forbade any and all administration personnel from testifying and blocked access to documents, and then complained there were no Republican witnesses. In the Senate trial, Mitch McConnell is, at this writing, muscling all Republicans not to break ranks and vote to allow neither witnesses nor documents so as to vote for acquittal and speedily shut down. The due process complaint is a red herring.

The call was about burden sharing. This argument seemed an act of desperation, so easily is it ridiculed. The first 20% of the call was taken up with mutual flattery. Talk about European countries not supporting Ukraine enough – sharing the burden – occupied only 14% of the call, and Zelenskyy is anxious to change the subject, thanking Trump for "your great support in the area of defense" and immediately switching to the Javelin anti-tank weapons he is so anxious to have. Trump responds by asking for his "favor, though" and from there forward the subject is the Bidens, Crowdstrike, the 2016 election interference question, asking Zelenskyy to welcome Giuliani's and Barr's calls.

Even if there had been great emphasis on the burden-sharing topic, what point bringing it up with Zelenskyy, who says he had talked to "Angela" and Macron telling them they "are not doing quite as much as they need to be doing". So shouldn't President Trump have been calling them?

"Abuse of power" is not in the Constitution, and that should void the Democrats' first article of impeachment. The Democrats became originalists and countered by quoting the Founders at every opportunity, citing, for example, Alexander Hamilton at the Constitutional Convention saying that impeachment was the remedy for "the abuse or violation of some public trust". The sketchy list of specific wrongs in the Constitution mean that judgment should be the ultimate determinant.

To claim that abuse of power is an improper criterion is to say that anything goes. A president can, like Trump has said, do anything he or she wants. Attorney General Bill Barr's "unitary executive" theory of the presidency comes close to that, maintaining that a president has complete freedom to conduct policy abroad and issue edicts at home, including “complete authority to start or stop a law enforcement proceeding”. It is an argument for an elective monarchy; it mistakes Trump for a king.

There was no obstruction of Congress , the second article of impeachment is wrong.. The president is within his rights (just ask Bill Barr) to bar testimony by administration personnel and refuse to turn over documents because the president should be free to have confidential discussions with his advisers.

But in Trump's case, the president attempted to block all administration officials from any cooperation whatever and released not a single document to the House committees. This went far further than a claim of executive privilege, which the defense team at the trial is now claiming. But that requires exposure of meetings or papers to evaluate which conversation or text passages should be considered privileged and kept from public view. Trump's complete ban argues that Congress has no rights as the second branch of government; it's the elective monarchy again.

OK, he did it but it doesn't rise to the level of an impeachable offense . The president illegally (see above) withheld congressionally mandated military aid to Ukraine who are fighting against U.S. adversary Russia at cost of lives in order to force that country's president to investigate Trump's election opponent in the hopes of finding something to use against him. Michael Gerhardt, a professor at the University of North Carolina and one of the four making up the panel in the House Judiciary Committee's hearing said,

"If what we're talking about is not impeachment, then nothing is impeachment. This is precisely the misconduct the framers created the Constitution, including impeachment, to protect against".

Ad nauseam, Republicans have said the Democrats want to "overturn the 2016 election" and subvert the will of millions who voted for him. Under that principle, a president could never be removed. Elections rule out the impeachment provisions of the Constitution, that says. The nation should suffer the perils of the worst of presidents and patiently wait years for their terms to end.

Moreover, Speaker Nancy Pelosi was very much against impeachment. She wanted Trump gone, to be sure, but held back the radical left newcomers in the House fearing that impeachment would inspire the same sympathy for Trump as occurred with Clinton's impeachment. But then came the whistleblower. What he did with Ukraine was a breach too far. She had to relent and let impeachment happen.

1 Comment for “So Many Reasons Not to Impeach”

  1. Good summary and rebuttal, but I doubt it will change any minds, or votes. Maybe, if four Republicans live up their oath, and we have witness, the additional time and information may impact the election. Hope springs eternal!

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