Impeachment Puts Our Democracy In Hands Of GOP Senate

Michelle Goldberg laid out the choices facing Democrats quite succinctly last week when she said, “I think Democrats are going to have to make a decision whether they actually want to kind of go for removal. And if you really wanted to go for removal, I think you would sort of make the succinct case rather than let it get bogged down and confused the way the Mueller investigation did, because the more confusing it gets the more I think Republicans can explain away the indefensible. But, if you want a full public hearing and airing of the epic corruption of this administration, of the total perversion of American foreign policy of, you know, kind of a level of self-dealing that we`ve never seen before in American history, then you basically make it broad and have hearings almost up until the next election”. With the House vote on the next phase of the impeachment proceedings, it certainly appears that Pelosi and the Democrats have chosen the former approach, to actually go for removal.

Certainly, Trump’s actions in Ukraine alone, where he has committed at least three distinct high crimes, are impeachable. First, the President illegally withheld congressionally authorized funds from the Ukrainians. Second, this was done in a blatant and brazen attempt to extort the Ukrainians into investigating the President’s probable opponent in the 2020 election, subverting our democracy, the third high crime. The summary of the President’s call with Zelensky released by the administration itself shows the President committing those three crimes. The President has committed the third high crime openly on multiple occasions. The President and his chief of staff have openly admitted to committing the two other high crimes, with his chief of staff claiming “we do this all the time”.

Sticking to the Ukraine story alone would certainly be the most expeditious way to impeach Trump. The story is clear, the evidence mountainous and damning, and the violations extreme. And the President’s most recent actions certainly indicate that an expeditious removal would be in order.

Trump has seemingly gone entirely rogue. He was running a shadow foreign policy towards Ukraine through his personal attorney in order to get the investigation of Biden announced without having his fingerprints all over it. He announced the withdrawal of US troops from Syria, clearing the way for Turkey to commit war crimes, with no consultation with our allies, and with no preparation for the withdrawal with the Defense Department and our allies.  That lack of preparation resulted in the ignominious sight of US warplanes bombing our own military installations that we had hastily abandoned so that they would not be useful to whomever took them over, presumably the Turks or the Russians. Trump refused to brief the designated members of Congress about the risky military action against ISIS leader al-Baghdadi, accusing the Democrats of potentially putting the operation at risk while privately informing favored GOP leaders and the Russians but also excluding his own chief of staff. And, despite al-Baghdadi’s death and the loss of its top leadership, ISIS is actually arguably stronger today than before the Turkish invasion simply because of the number of ISIS members who have escaped Kurdish detention and are now back in circulation.

With all that in mind, you can hardly blame Pelosi and the Democrats from moving forward with impeachment on an expedited schedule. The current plan would seem to be to finish with public hearings in late November or early December and then draft and pass articles of impeachment in December or January, setting up a Senate trial for the late winter of 2020. And the Ukraine story is so clear and clean and indefensible. As I’ve written before, there is no good answer to the question of whether it is acceptable for “the President to secretly withhold taxpayer funds appropriated by Congress in order to extort a foreign country to investigate his political rival in order to gain an advantage in an upcoming election. The reason the Republicans have no good answer is simply because the conduct is indefensible”.

But, in order to stick to Pelosi’s tentative timetable and to have an actual chance at conviction in the Senate, the investigation must be somehow limited and constricted, meaning significant lines of inquiry must simply be ignored. The problem is that the entire Trump administration is so epically corrupt that every rock that’s turned over leads to more new crimes. New reporting about NSC senior staffer Vindman’s testimony indicates that the ellipses in the summary of the Trump-Zelensky call represented purposeful omissions, not just pauses in the conversation as Trump has continually claimed. And the fact that one of those omissions apparently concerned recordings of Biden’s conversations about corruption with the Ukrainians not only indicates yet another case of willful obstruction of justice by the President but also raises the question of whether the administration has been trolling through NSC intercepts in order to get dirt on Biden.

In the last couple of days we have learned that disgraced former GOP Representative Bob Livingston was also lobbying the State Department to get Ambassador Yovanovitch fired. Who Livingston was lobbying for and who was paying him for that effort are still unknown. In addition, we now know the NSC lawyer is the individual who decided to move the summary/transcript of the Trump-Zelensky call to a highly classified server only after being informed of the improper nature of that call. As emptywheel points out, that same NSC lawyer is the one who in early 2017 talked K.T. McFarland out of documenting the fact that Trump wanted her to write a letter denying that he, the President, had directed Mike Flynn to talk to Russian Ambassador Kislyak about sanctions in return for appointing her Ambassador to Singapore.

Is the inquiry going to go back and look at whether the prior sale of Javelin missiles to Ukraine in early 2018 was conditioned on Ukraine ceasing cooperation with the Mueller investigation? Is the inquiry going to look at why Barr’s DOJ basically deep-sixed the criminal investigation recommended by the intelligence community Inspector General? Is the inquiry going to look at the involvement of Vice President Pence, Secretary of State Pompeo, and Attorney General Barr in the extortion plot?  If Pelosi is looking for a quick process with at least some hope of conviction in the Senate, it would seem that Pence and Pompeo would be off limits. Needless to say, this is the first time in modern impeachment history that the Vice President has been not only implicated in the President’s high crimes but is also actively defending the President during the process. And what about any new crimes the President might commit as the inquiry proceeds. Already Politico is reporting that Trump is offering enormous financial support to vulnerable GOP Senators who stick with him in the impeachment process.

Those are just some of the issues that Democrats have to confront that deal directly with the Ukraine scandal. But we know there will also be at least one article of impeachment that deals with abuse of power. Will that abuse of power include the five clear instances of obstruction of justice that Mueller outlined? The Trump administration has blown off so many subpoenas for documents and testimony. How many of those incidents will be included in the abuse of power charge? Only the ones directly related to Ukraine? What will Democrats do if the courts finally fast-track these document requests that have been stonewalled by the White House and, say, the House gets access to Trump’s financials or the transcripts of those private conversations between Trump and Putin or Don McGahn is finally forced to testify?

It’s easy to see just how quickly just a limited inquiry into Ukraine could spill over to other areas of potentially impeachable offenses by the Trump administration. And any new lines of inquiry will simply delay the prospective timetable for an actual Senate vote. In order to keep to the timetable, then, some serious lines of inquiry and other potentially impeachable acts will have to be ignored.

Trump’s defense appears to be a reprise of Nixon’s failed defense, namely that “when the President does it, that means it is not illegal”. In this case, Trump will simply declare that Article II gives the President the sole power of foreign affairs and, as such, he was just acting as he saw fit, demanding that Ukraine crack down on corruption. The fact that such an assertion depends on the implied powers derived from specific Article II powers such as being the commander in chief and appointing and receiving ambassadors as well as the fact that Article I gives Congress certain powers in foreign affairs, such as the power to declare war and raise and support armies will be ignored. Instead, Trump will rely on AG Barr’s vision of the unitary executive and the supremacy of executive power.

Jared Kushner apparently believes “the facts are in the White House’s favor” and the President is demanding the Republicans defend him on the merits, not merely on process. That process argument has now been effectively defanged by the House vote. And Trump’s tweet that “Rupublicans [sic], go with Substance and close it out!” is a direction to Senate Republicans to acquit him on the grounds that every action he took was within the executive powers granted by the Constitution. The other defense option is to somehow claim that Trump’s actions were probably improper, but don’t rise to the level of impeachment. That line would seem hard to maintain when the target of Trump’s improper action is a domestic political rival and probable 2020 opponent. Of course, that will not stop his sycophants and cronies from also accusing everyone who tells the truth about Trump’s crimes as having dual loyalties, are secretly Democratic partisans, or are simply traitors.

Of course, having an actual trial in the Senate early next year poses real problems and risks for Democrats. First, Senators are required to attend such a trial, meaning that two of the three current frontrunners for the Democratic nomination, Sanders and Warren, will be pulled off the campaign trail to hear the evidence against Trump and vote to convict. More importantly, if the GOP Senate caucus stays united, as seems likely, Democrats have no hope of reaching the two thirds supermajority to convict. Worse, that high threshold means that some of the most vulnerable GOP Senators running in 2020 would actually have the option of voting to convict with the full knowledge that it would not happen. Susan Collins made a career out of taking these “moderate” votes when she knew the Republican position would prevail.

The real risk the Democrats take with impeachment is that a vote not to convict in the Senate will allow an already rogue Trump to be fully unleashed and unrestrained in his attempts to rig the 2020 election in his favor. He will exert enormous pressure on Barr and others to seek retribution against Pelosi and the Democrats for his impeachment. I don’t think anyone has any idea of how far he will go to exact his revenge. For Democrats, for the country, it is really the nightmare scenario. But it should not be an excuse for Democrats to shy away from doing their constitutional duty in protecting the integrity of our democracy and going ahead with impeachment.

However, let’s say, for arguments sake, Republicans in the Senate shock us all and decide to convict. A limited inquiry would still leave a damaged President Pence. Bill Barr would still be Attorney General and travelling the world to dig up dirt to exonerate the Russians and Paul Manafort in 2016. He would still be defending states that seek to strip away voting rights from primarily Democratic voters for 2020, as Georgia is planning to do.  Barr would still not prosecute the rampant corruption that permeates the Trump administration that was not included in the impeachment process, such as the “improper influence” exerted on the tariff exclusion process just uncovered by the Commerce Department Inspector General. And, at this point, can anyone say for sure that Barr still won’t press ahead with an investigation of Biden.  In other words, the corruption will still continue, just like the payoffs still get collected even after the mafia don has been hit.

With the vote on Thursday, Pelosi and the Democrats have committed themselves to Trump’s impeachment. In addition, Pelosi and the Democrats are committed to an expedited timeline for impeachment and a Senate trial early next year. In order to keep to that timeline, other significant impeachable acts beyond the immediate Ukraine extortion plot will probably have to be ignored. The proposed timeline is not sacrosanct and it possibly could be extended as even more egregious Trump behavior is uncovered. But any extension of the deadline would then face the real probability that the Senate trial will be so close to the 2020 election, it would almost make the process moot and actually take the Democrats closer to Goldberg’s other choice of continual hearings until election day. Whether Trump is convicted or not, the baseline level of corruption and criminality within his administration will not end. Only the voters can stop that in November, 2020.

Until now, the impeachment focus has largely been on Democrats. Now that actual impeachment hearings are beginning, the focus will swiftly shift to the Republicans who are in the unenviable position of defending the indefensible, and they know it. Pelosi is gambling that the country and the Republicans in the Senate will not be willing to accept the fact that the President is using taxpayer funds to bribe foreign officials to actively support his re-election campaign and subvert our democracy. Certainly, recent history has given us no reason to believe that Republicans would finally put country over party, would choose to save our democracy rather than their own personal and political power. After all, perverting our democracy is the only way they believe they can win national elections. Yet that is what Democrats will be asking for in impeachment. And that is what the future of our democracy will ultimately hinge on.