How Not to Impeach a President: A Primer in Hindsight

Even hindsight is not always 20/20, particularly in the short term. However, in light of the course to date of the Senate impeachment trial, a few things seem pretty obvious to me. Although the ultimate outcome of acquittal in the Republican controlled Senate has never been in serious doubt, it just makes sense that the House Democrats should have done everything possible to blunt or negate in advance as many as possible of the very predictable defenses of the president’s trial defense team. There are two glaring examples of this.

First, although it is debatable whether it is a legal requirement, I think it was a big mistake for Nancy Pelosi not to get a full House vote to approve the impeachment inquiry, which would have been consistent with precedent and would have prevented the major defense argument, however flawed, that the House committee subpoenas were all invalid because no such vote was taken. One has to wonder why this was not done, whether out of concern for not getting enough votes or protecting vulnerable representatives in swing districts before the bulk of the evidence was discovered. At the time, it appeared that this was done partly to show that Pelosi would not be pushed around by the White House in this regard, which may have seemed politically advantageous at the time but in retrospect was a bad move. Of course, the White House would have come up with other reasons for denying the subpoenas, but this made it much too easy, and provides one more justification for Republican senators to dismiss the case.

The second major blunder in my view was not including bribery, extortion and/or blackmail as an article of impeachment, perhaps combined with abuse of power. That would negate the entire argument eloquently presented by Alan Dershowitz that articles impeachment must include a criminal or “criminal-like” offense to be legitimate. Although this is clearly a modern minority opinion, it is another important and very attractive exit ramp already being openly accepted by some senators to justify acquittal. I can only assume that there was not sufficient support among Democrats for such an article to pass the House, but if that was the case I think they should have tried harder on that front. I also still think it was a mistake not to include an article on obstruction of justice as a result of the Mueller report, even though that would have added more material to cover in a limited amount of time during the trial, somewhat diluting the focus on the whole Ukraine issue.

The other major issue with the House proceedings which has been a focus of Republican attacks is not pursuing enforcing subpoenas for witnesses and documents in court. This is a very difficult matter to evaluate, since it is likely that these court battles including the interminable appeals would have dragged on into or even beyond the 2020 election, which was the main focus of concern for the consequences of Trump’s Ukrainian scheme. Given that Senate acquittal was practically guaranteed in any event, the question is whether it would have been more politically damaging to Trump’s reelection campaign or to Democrats to drag out the House impeachment proceedings until the election with no Senate trial (or possibly a trial in the middle of the general election campaign), versus having a trial including an article on obstruction of Congress now and get it over with so Democrats can concentrate on their primaries and campaign issues that clearly matter more to voters. The Democrats’ claimed main reason for acting as they did was their concern about further efforts by Trump to cheat in the next election with other foreign interference, but the catch 22 for them is that he is more likely rather than less likely to do that again after his certain Senate acquittal! I think it was a major political gamble either way, but given the information which has recently been leaking out from Parnas and now John Bolton, I do wish that the House had not moved as quickly as they did. Of course, one way or another this information will eventually come out, but it still seems doubtful that much if any of it will be able to come out in the Senate trial. Given the inevitable outcome, I still think it may be politically better for Democrats if the Republicans vote down all witnesses and documents (with calling witnesses now supported by about 75% of the public), making it an obvious political sham rather than a legitimate trial, the first impeachment trial in American history without witnesses and documents. Nevertheless, it would be great to be able to get sworn testimony from Bolton and other administration officials on the record, without which it is just everyone’s word against Trump’s. Predictably, Trump and his allies are already trashing Bolton. I am not willing to bet either way how this will be resolved, but the next few days will be really interesting!