Yeah, it’s been a while. I warned you. I keep getting distracted by ever-breaking news, but thought I’d try to jump back in with the topic that remains the elephant in the room: Impeachment.
While I stand by my opinion that impeachment is a lousy political strategy for Democrats, the President did force their hands. As the chair of the Federal Election Commission noted, Trump’s admitted solicitation of the Ukrainian and Chinese governments to investigate a political rival is quite obviously against the law. Did Trump withhold Congressionally-approved assistance to Ukraine as leverage? Well, of course he did. Duh. However, it is a federal crime to simply solicit political help from a foreign government. The obvious blackmail makes it worse, but it’s largely irrelevant. It’s still a crime even without the quid pro quo. If Democrats had just let it slide, they’d have encouraged Trump to continue to seek foreign interference in our elections. Pelosi had little choice.
Which brings us to the impeachment process. Why is this even being discussed? The letter that the White House counsel wrote to House Democrats reads like a collection of Trump’s twitter rants and is devoid of any valid legal arguments. No, the Constitution does not require a vote for the House to start an impeachment investigation. Yes, the House investigation can and should be conducted in private – just like any criminal investigation prior to charges being filed. Yes, Democrats have the lead in the investigation since they have a majority in the House. No, Republicans are not shut out of the process and the 47 House Republicans on the various investigating committees have full access to all witnesses and materials. Public testimony, discovery of evidence, and the ability of the accused to cross-examine witnesses will all be features of a Senate trial if and when the House votes for impeachment. These are facts. They are not subject to interpretation.
That said, some interpretation is necessary when considering the limits of Congressional subpoenas. Democrats, of course, think that their subpoena power should be limitless. Republicans argue that Executive Privilege lets the President ignore any and all subpoenas at will. Sanity likely resides somewhere in-between. Congress shouldn’t be able to conduct fishing expeditions to reveal every conversation that takes place within an Administration; Administrations shouldn’t be able to claim Executive Privilege to avoid any constitutionally-mandated Congressional oversight.
If there are valid reasons for a Congressional investigation into a President’s actions (like, say, an incriminating summary of a call released by the White House or a Special Counsel’s report laying out the legal framework for obstruction of justice charges), it would seem more than appropriate for Congress to be granted wide latitude to issue relevant subpoenas. Such a grant, however, would likely need to come from the Supreme Court. Any subsequent refusals to comply with the subpoenas would then provide even further grounds for impeachment. While United States v. Nixon provides a rather clear legal precedent in favor of Congress, the unfortunate politicization of the Supreme Court in recent years makes this decision something less than a slam dunk. We’ll see.
As an aside, the Administration’s refusal to provide Trump’s tax returns to Congress is a completely separate issue. Congress has the unrestricted legal authority to request any tax return filed by any American citizen with no justification requirements. Period. While one of Trump’s lawyers actually argued IN COURT that Trump could shoot someone on Fifth Avenue with total immunity while in office, I want to believe that even our current Supreme Court wouldn’t place the President above the law.
Of course, most Republicans are reacting just as you’d expect. As background, let’s review just a few snippets from the 1999 Congressional Record related to the Clinton impeachment process, each formally recorded by Senators that are still in office today:
- Sen. Inhofe (R-OK): “I think anyone who votes to acquit has to say that we are going to hold this President to a lower standard of conduct and behavior than we hold other people. I do not understand how they can come to any other conclusion.”
- Sen. Graham (R-SC): “You don’t even have to be convicted of a crime to lose your job in this constitutional republic if this body determines that your conduct as a public official is clearly out of bounds in your role. … Impeachment is not about punishment. Impeachment is about cleansing the office. Impeachment is about restoring honor and integrity to the office.”
- Sen. McConnell (R-KY): “Time after time, the President came to a fork in the road. Time after time, he had the opportunity to choose the noble and honorable path. Time after time, he chose the path of lies and lawlessness — for the simple reason that he did not want to endanger his hold on public office. … So what will we do this day? Will we rise above or will we sink below? Will we condone this President’s conduct or will we condemn it? Will we change our standards or will we change our President?”
Such righteous indignation. And yet, all three have already ruled out voting to remove Trump from office without even a slight nod to irony.
At this point, I don’t see many options for how this plays out. The House will eventually vote to impeach Trump, the Senate will refuse to remove him from office, and we’ll be back to just hoping for a Democratic win in November 2020.
In the meantime, the ever-breaking news cycle will undoubtedly continue and I’ll continue to be constantly distracted. Squirrel!