Impeachment, Politics, Due Process, and the Revolution

Several weeks ago, the US House of Representatives impeached the President of the United States by a close and almost entirely partisan vote. Last week, House Speaker Nancy Pelosi finally held another vote, on a resolution appointing the House managers for the Senate trial and formally sending the impeachment to the Senate. Now the Senators have been sworn in and the rules established, and the trial is beginning.

Meanwhile, and closer to home, I haven’t blogged here in slightly over a year. In case my reasons interest you — they have a lot to do with the present political climate — you’re welcome to peruse another article I’m posting simultaneously, “On Blogging and Not Blogging in the Trump Years.”

I’m looking forward to blogging on other topics, but …

If the proverbial cross between an elephant and rhino is an “elephino,” then this impeachment is … what? A giant elephonkey in the room?” So let’s talk about impeachment generally, and this impeachment specifically. I’ll mention revolution and counterrevolution before we’re done.

Impeachment Is Political

The impeachment we’ve been watching is a political process. That sounds like a bad thing, but it’s important to realize that it’s inherently political. Because of this, some things matter and some don’t, in a procedural sense. I’ll tell you what I mean.

First, a disclaimer, for perspective more than for virtue signaling. I didn’t vote for President Trump. Most days I can scarcely bear to hear his voice or read his words. I do think he’s done well for the economy in most respects, so far, and in pushing back the federal regulatory leviathan and also filling federal courts with judges who think words have meaning. I’m comfortable with him ordering a drone strike on an Iranian terrorist mastermind who was implicated in hundreds of American deaths.

For all that, I often find the President’s behavior inexcusably childish, vain, and boorish. His opposition uses his bad behavior to excuse an endless flood of its own even worse behavior. I find this revealing but not surprising, since most of it comes from a faction which used to be mostly liberal but is now decidedly Leftist.

But I said we’d talk about impeachment …

It Was Born Political

While it’s fair to say that America’s Founders didn’t want the impeachment and removal of executive and judicial branch officials by Congress to be easy, or to be used in purely partisan squabbles or policy disagreements, they did create it as a political process. Exhibit A: they gave it to Congress, a political body, not the judiciary. As you know, both houses of popularly elected representatives participate, the House by impeaching (with a simple majority), and the Senate by convicting and removing (with a two-thirds majority).

Notwithstanding the solemnity of putting senators under special oath and the presence of the Chief Justice of the US Supreme Court to preside over the trial (if it’s the President who’s on trial), the impeached official’s fate is decided not by judges with lifetime appointments and established expertise in the law, or by more-or-less unbiased jurors who are not to discuss the case until they’ve heard all the evidence, and who are supposed to see, hear, and consider only evidence presented at trial. Instead the outcome is decided by elected representatives who are subject to reelection every two or six years, who have likely expressed their views publicly long before the trial, and who can be lobbied on these matters as on any others.

In the Founders’ eyes the people are sovereign, not the government. So the Founders located the power of impeachment as close to the people as it could reasonably get, at least partly for the sake of legitimacy and accountability. But again, they gave it to a relentlessly, unavoidably, intentionally political branch of the government.

This matters because, as a political process, not a judicial one, impeachment is outside the guarantees of due process which apply to judicial trials.

In this case the House abandoned any pretense of due process in its impeachment proceedings — but here’s the essential point: this behavior by the House, offensive though it is to many, doesn’t matter in any procedural sense.

The nature, uses, and abuses of the impeachment process only matter at two points. First, individual senators may take them into account when they vote to remove the president or not (and optionally to ban him from holding federal office in the future), and perhaps in procedural votes, such as a vote on the rules or a vote to dismiss. Second, individual voters may weigh them when they vote in November 2020.

Why Due Process Matters

That said, let’s consider for a moment why due process matters in court. We are at great pains to insure that outcomes are just, and especially that innocent defendants are not unjustly convicted. We rely principally on juries, within due process, as finders of fact. If due process is denied, it’s difficult to be confident of the truth of a verdict or the justice of a sentence.

It seems reasonable to want due process in an impeachment too, so the people can have some confidence in the truth of the verdict and the justice of the sentence. So it would make sense to incorporate quite a lot of judicial due process into impeachments which happen in the legislative branch. I think a lot of people hope for that, if perhaps fewer of us actually expect it.

Regrettably, truth and justice are only occasional — often accidental — byproducts of political processes, as the House’s role in the present spectacle has shown us yet again. More’s the pity.

Things Which Do Not Matter, Unless They Do

Here’s a partial list of things which do not matter, unless individual senators or voters decide they do. As you read this list, you’ll think I’m on the President’s side — which I mostly am in this process, but more for the process’s and institutions’ sake than the President’s.

It does not matter that virtually none of our 100 US Senators would be allowed on the jury in this case, if this were a jury trial in a court of law. A few Senators have made some superficial attempts to appear unbiased, as this process begins, but they wouldn’t likely survive the examinations of both sides’ attorneys and the judge in any conscientious court’s jury selection process.

It does not matter that most or all of the senators will, during the trial, say things (and read things and watch things) that would get them kicked off a jury, if they’d managed to be seated in the first place.

It doesn’t matter that the US Supreme Court has agreed to hear at least one of the Trump administration’s cases attempting to protect executive privilege — or that this undermines the timing, if not the substance, of the second article of impeachment. Remember that this is a political process, not a judicial one.

It doesn’t matter that Speaker Pelosi recently said they’ve been working on this impeachment for two and a half years, when the alleged offenses occurred in June 2019 — which tells you that this prosecution is not fundamentally about the specific charges at all, which could get it thrown out of court on that basis, if this were a judicial process.

It doesn’t matter that Rep. Adam Schiff, the chair of the House Select Committee on Intelligence, which held most of the House’s hearings in this matter, lied about not knowing the whistleblower; or that there was coordination between Rep. Schiff’s office and the whistleblower, as the latter prepared his or her complaint.

It doesn’t matter that the “whistleblower” has no firsthand knowledge of the supposed misconduct, or that he or she doesn’t fit the established legal definition of a whistleblower.

It doesn’t matter that Chairman Schiff publicly gave a false account of the contents of the pivotal call transcript — as anyone can see who reads the transcript.

It doesn’t matter that the House, led by Chairman Schiff and Judiciary Committee Chairman Jerry Nadler (who may be playing Flotsam and Jetsam to Speaker Pelosi’s Ursula), violated its own rules and precedents, as well as its enabling legislation for this particular process. That’s bad, but it’s politics.

It doesn’t matter that Chairman Schiff prevented the president’s party from bringing in witnesses to testify in those hearings, or that he prevented his own party’s witnesses from answering key questions from Republican members of the committee.

Nor does it matter that, after the overt and shameless abuses of process in the House, Democrats are now demanding a “fair” process in the Senate, including the calling of witnesses. (I’m not sure blatant hypocrisy in high places is unusual enough to deserve mention.)

It doesn’t matter that all but one witness before Chairman Schiff’s committee denied having firsthand knowledge of the call, and the one who did hear the call said there was no quid pro quo involving foreign aid.

It doesn’t matter that some of the witnesses gave the strong impression that what really offended them was that the President was undermining “the established foreign policy of the United States” — meaning their preferred policy — when it’s the President’s job, not theirs, to set the foreign policy of the United States.

It doesn’t matter that the charge evolved during the hearings from “quid pro quo” (which didn’t excite focus groups) to bribery (of which no witness testified) to abuse of power (bad but fuzzy), or that among these only bribery is an actual crime with a legal definition.

It doesn’t matter that quid pro quo is perfectly ordinary practice in foreign policy — unless it’s personal quid for public quo, or vice versa, which is a separate question. (See below.)

It doesn’t matter that majority counsel was allowed to testify as a witness, without being placed under oath.

It doesn’t matter that some who voted for impeachment said that the President had to be impeached, because they couldn’t beat him in November 2020, or that some of them have clamored for his impeachment since they first heard the 2016 election results, or that some of them were elected or reelected in 2018 after promising to impeach (or in other cases, not to impeach).

It doesn’t matter that the President of Ukraine said (not at the hearings, and not under oath) that he wasn’t aware of the alleged quid pro quo.

It especially doesn’t matter that President Trump never got what he supposedly demanded, and that Ukraine received the aid that he supposedly conditioned on what he supposedly demanded.

It really, really doesn’t matter that it was the Trump administration which finally gave Ukraine that desperately-needed military aid, after the Obama administration (which was reliably accommodating to Russia, Ukraine’s neighborhood bully) had refused to send military aid to Ukraine for years.

It doesn’t matter that, after telling us how urgent this impeachment is, Speaker Pelosi sat on it for weeks after the impeachment vote, and has finally sent the matter to the Senate at a time when the trial will keep former Vice President Biden’s key opposition in the Democrat presidential primary, Senators Bernie Sanders and Elizabeth Warren, in Washington, when they urgently need to be campaigning in Iowa and New Hampshire. (This may not have been the Speaker’s motive for the delay, but it’s one key effect.)

It doesn’t matter that, after more than two years of telling us there was solid evidence of the Trump campaign colluding with Russia and of the President obstructing justice, even this Congress couldn’t take either of those allegations seriously enough to include them in the articles of impeachment. Those well-cured piles of elephonkey dung didn’t stick to the wall at all — just to the minds of some of the President’s enemies.

In the end it doesn’t matter that there is a long catalog of what would be outrageous abuses of due process, if this were a judicial process, in addition to some highly suspect motives and persistent untruths. Because it’s not judicial. It’s political — as we saw again in last week’s souvenir gold pens and happy selfies, when the House finally voted to send the matter to the Senate.

None of this matters at all — except to the extent that it matters to individual voters in November, and to individual senators when they vote at trial. It should matter to all of them — and it matters to me.

Tulsi Gabbard Could Matter Eventually

The articles of impeachment (see the Appendix below) required only a simple majority to pass. No Republicans voted yea. Two Democrats voted nay on the first article and three on the second. One of them left the Democratic Party over the process’s abuses. But let’s focus briefly on Democrat presidential candidate Rep. Tulsi Gabbard (D-Hawaii), whom Hillary Clinton recently accused of being a Russian plant in the Democrat presidential primary. She voted “present” on both articles, which is essentially an abstention.

She explained, “I could not in good conscience vote against impeachment because I believe President Trump is guilty of wrongdoing. I also could not in good conscience vote for impeachment because removal of a sitting president must not be the culmination of a partisan process, fueled by tribal animosities that have so gravely divided our country.”

In general, I’m not crazy about her politics. But I’m delighted that there is at least one rational adult in the Democrat presidential primary field who will call a spade a spade and act accordingly. In the long run, this maturity — or simply having a spine — may sink her in national politics. Or it may push her above the rabble. In the short run, she’s still well behind most of the rabble in presidential primary polls.

She has proposed a resolution (H. Res. 766) censuring President Trump. Censure is a serious rebuke but falls well short of impeachment. Her resolution lists grievances against the President which range more broadly than the articles of impeachment — and it is an appropriate, proportional, unfrenzied response, if you think he’s guilty of misconduct which falls short of “high crimes.”

What Probably Should Matter

The second article of impeachment (see Appendix below) charges that the President obstructed Congress in its investigation of quid pro quo, bribery, or abuse of power. Essentially, he denied them documents and witnesses, pending court rulings on whether he had to provide them or not.

Asserting executive privilege is routine; many presidents have done it. The previous president similarly stonewalled any number of investigations. If this President were defying orders by the US Supreme Court in this case, this article of impeachment might have some basis. But he’s not. The Democrats never pushed it that far. They weren’t that patient. They just went straight to impeachment. So for me the second article has no merit.

(You know they’d have added obstruction of justice and collusion with Russia if they could have, but they didn’t. By comparison, obstruction of Congress doesn’t play nearly as well in Peoria. It almost sounds like a good thing.)

Here’s how I see the first article of impeachment, which charges abuse of power.

If there was no quid pro quo, or no attempt at it, there is no offense.

If there was quid pro quo (or the attempt), but it was the ordinary quid pro quo of foreign policy, there is no offense.

However, if it was a matter of personal gain in exchange for public resources, there probably is an offense. Given the outcome, I don’t currently think it justifies impeachment, but it’s not absurd to explore and debate this question.

The defense argument here is that the President was asking not for direct personal benefit (investigation of a possible 2020 electoral opponent), but for help in investigating corruption in Ukraine, which may have been connected to our 2016 election.

Corruption

If there was or is plausible suspicion of such corruption, then I give the President a pass here, even if he might derive some personal political benefit from advancing our nation’s interest. That’s a hard hair to split, because any success in foreign policy helps a president’s legacy and either his own future electoral prospects or his party’s. And we have to ask, should possible future electoral opponents be immune from investigation in the meantime?

If this corruption was real, then suspicion of it is automatically plausible. But the corruption doesn’t have to be real for the suspicion to be reasonable.

There are indications that the corruption was real. We have Ukrainians convicted in Ukrainian courts of attempting to influence the 2016 US election. We have a dossier funded by Democrats, filled with false acccounts of candidate Trump’s misconduct, which was used illegally by the FBI at the FISA court to launch surveillance and investigation of the Trump campaign and subsequently the Trump administration — and the dossier appears to have Ukrainian ties. We have Former Vice President Biden boasting on video that he gave Ukraine an ultimatum, when he was President Obama’s Vice President: fire the chief prosecutor who was investigating a powerful company which employed his son Hunter, or lose a massive amount of US aid. (Ukraine fired the prosecutor that day.) We have Hunter Biden’s employment looking more and more like a money laundering operation, to say nothing of similar capers in China and elsewhere.

The House resolution refers to these suspicions as “a discredited theory promoted by Russia alleging that Ukraine—rather than Russia—interfered in the 2016 United States Presidential election” (my emphasis).

There is rhetorical sleight-of-hand here, and it’s important. I don’t know anyone who is saying the Russians didn’t meddle in 2016. It’s been their way for a long time — to destabilize, to cause chaos and division — and in 2016, if anything, they increased their efforts. (I’m not saying the Trump campaign colluded with Russia, or that Russia favored Trump, which seems unlikely on its face. Even Robert Mueller, a prominent swamp-dweller, and his staff of rabid Hillary Clinton donors couldn’t produce any evidence of Trump-Russia collusion — after two years of trying.)

So the theory — if it ever existed — that it was Ukraine, not Russia, that meddled in 2016 deserves to be discredited. But no one is advancing that theory. The credible argument is that, in addition to Russia’s interference, there was trouble in Ukraine.

Since this bears directly on the impeachment, I’d like the Senate to investigate it thoroughly, as part of the trial — which they could do, because it goes to the credibility of testimony and suggests a alternative interpretation of the President’s alleged offense.

Such corruption would go a long way towards explaining the uprising of the US administrative state — the swamp, so called — against President Trump. I have never suspected this President of being a pillar of virtue, but he is at least a clear and present threat to the swamp.

Here’s why such an investigation won’t happen as part of the Senate trial. Ukraine and the Bidens may be just the tip of the iceberg. A significant amount of the foreign aid we send to foreign governments seems to come back to highly-placed US officials and their families. I would be stunned if prominent members of both parties weren’t involved. So the will to leave this unprobed isn’t just strong. It’s likely bipartisan.

I should probably be somewhat content if both sides get a fair hearing in the Senate trial, after one side was suppressed in the House hearings. At least that’s a more likely outcome.

Revolution and Counterrevolution

Call me whatever names you want, but shall we compare notes in ten or fifteen years? If I’m right, we’re seeing the administrative state and the (so far, mostly bloodless) revolution it supports lashing out against a counterrevolutionary president and the people who elected him under a venerable Constitution the revolution would prefer to discard.

We can hope that the power struggle remains largely nonviolent. Leftist revolutions usually turn bloody; historically, Leftist movements tend to resort to blowing up things and people they don’t like. But the counterrevolutionaries here have far more guns than the revolutionaries, at least for now. They still have the right to vote, and they’re likely to use it en masse in November, despite the revolution’s attempts to discredit our elections, the candidate it hates, and the American way of government in general.

Meanwhile, I think there are tens of millions of voters who mostly keep their own counsel, but who have already been pushed firmly to the right by the excesses of the Left — even when the Right’s public face is President Trump.

Stay tuned.

Appendix: Articles of Impeachment

I’ve excised some of the bone and gristle, leaving the meat of the articles of impeachment in H. Res. 755 intact.

Article 1: Abuse of Power

“Donald J. Trump has abused the powers of the Presidency, in that:

“Using the powers of his high office, President Trump solicited the interference of a foreign government, Ukraine, in the 2020 United States Presidential election. He did so through a scheme or course of conduct that included soliciting the Government of Ukraine to publicly announce investigations that would benefit his reelection, harm the election prospects of a political opponent, and influence the 2020 United States Presidential election to his advantage. President Trump also sought to pressure the Government of Ukraine to take these steps by conditioning official United States Government acts of significant value to Ukraine on its public announcement of the investigations. President Trump engaged in this scheme or course of conduct for corrupt purposes in pursuit of personal political benefit. In so doing, President Trump used the powers of the Presidency in a manner that compromised the national security of the United States and undermined the integrity of the United States democratic process. He thus ignored and injured the interests of the Nation.

“President Trump engaged in this scheme or course of conduct through the following means:

“(1) President Trump—acting both directly and through his agents within and outside the United States Government—corruptly solicited the Government of Ukraine to publicly announce investigations into—

“(A) a political opponent, former Vice President Joseph R. Biden, Jr.; and

“(B) a discredited theory promoted by Russia alleging that Ukraine—rather than Russia—interfered in the 2016 United States Presidential election.

“(2) With the same corrupt motives, President Trump—acting both directly and through his agents within and outside the United States Government—conditioned two official acts on the public announcements that he had requested—

“(A) the release of $391 million of United States taxpayer funds that Congress had appropriated on a bipartisan basis for the purpose of providing vital military and security assistance to Ukraine to oppose Russian aggression and which President Trump had ordered suspended; and

“(B) a head of state meeting at the White House, which the President of Ukraine sought to demonstrate continued United States support for the Government of Ukraine in the face of Russian aggression.

“(3) Faced with the public revelation of his actions, President Trump ultimately released the military and security assistance to the Government of Ukraine, but has persisted in openly and corruptly urging and soliciting Ukraine to undertake investigations for his personal political benefit.

“These actions were consistent with President Trump’s previous invitations of foreign interference in United States elections.

“In all of this, President Trump abused the powers of the Presidency by ignoring and injuring national security and other vital national interests to obtain an improper personal political benefit. He has also betrayed the Nation by abusing his high office to enlist a foreign power in corrupting democratic elections.

“Wherefore President Trump, by such conduct, has demonstrated that he will remain a threat to national security and the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law. President Trump thus warrants impeachment and trial, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.”

Article 2: Obstruction of Congress

“President Trump has abused the powers of the Presidency in a manner offensive to, and subversive of, the Constitution, in that:

“The House of Representatives has engaged in an impeachment inquiry focused on President Trump’s corrupt solicitation of the Government of Ukraine to interfere in the 2020 United States Presidential election. As part of this impeachment inquiry, the Committees undertaking the investigation served subpoenas seeking documents and testimony deemed vital to the inquiry from various Executive Branch agencies and offices, and current and former officials.

“In response, without lawful cause or excuse, President Trump directed Executive Branch agencies, offices, and officials not to comply with those subpoenas. President Trump thus interposed the powers of the Presidency against the lawful subpoenas of the House of Representatives, and assumed to himself functions and judgments necessary to the exercise of the “sole Power of Impeachment” vested by the Constitution in the House of Representatives.

“President Trump abused the powers of his high office through the following means:

“(1) Directing the White House to defy a lawful subpoena by withholding the production of documents sought therein by the Committees.

“(2) Directing other Executive Branch agencies and offices to defy lawful subpoenas and withhold the production of documents and records from the Committees—in response to which the Department of State, Office of Management and Budget, Department of Energy, and Department of Defense refused to produce a single document or record.

“(3) Directing current and former Executive Branch officials not to cooperate with the Committees—in response to which nine Administration officials defied subpoenas for testimony, namely John Michael “Mick” Mulvaney, Robert B. Blair, John A. Eisenberg, Michael Ellis, Preston Wells Griffith, Russell T. Vought, Michael Duffey, Brian McCormack, and T. Ulrich Brechbuhl.

“These actions were consistent with President Trump’s previous efforts to undermine United States Government investigations into foreign interference in United States elections.

“Through these actions, President Trump sought to arrogate to himself the right to determine the propriety, scope, and nature of an impeachment inquiry into his own conduct, as well as the unilateral prerogative to deny any and all information to the House of Representatives in the exercise of its “sole Power of Impeachment”. In the history of the Republic, no President has ever ordered the complete defiance of an impeachment inquiry or sought to obstruct and impede so comprehensively the ability of the House of Representatives to investigate ‘high Crimes and Misdemeanors’. This abuse of office served to cover up the President’s own repeated misconduct and to seize and control the power of impeachment—and thus to nullify a vital constitutional safeguard vested solely in the House of Representatives.

“In all of this, President Trump has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice, and to the manifest injury of the people of the United States.

“Wherefore, President Trump, by such conduct, has demonstrated that he will remain a threat to the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law. President Trump thus warrants impeachment and trial, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.”

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