Wintry Tuesday Reads: Impeachment NewsPosted: December 17, 2019
What will come next is still up in the air. Yesterday, the House Judiciary Committee released their impeachment report. On Sunday, Senate Majority Leader Chuck Schumer released a letter to Mitch McConnell, requesting witnesses at the impeachment trial.
Senate Minority Leader Schumer wrote a letter to Senate Majority Leader Mitch McConnell Sunday evening, calling for at least four witnesses to testify in a Senate impeachment trial. Those witnesses include: acting White House chief of staff Mick Mulvaney, former national security adviser John Bolton, senior adviser to the acting White House chief of staff Robert Blair and Office of Management and Budget official Michael Duffey.
Read the letter at the CNN link above. McConnell has already rejected the request. All he wants is a fake “trial” and a quick dismissal of the charges.
Jennifer Rubin at The Washington Post: Schumer has these five advantages in impeachment.
The first is that the Senate is not the House. Not yet. There is a reason Schumer focused on potential Republican objectors to McConnell’s rush to a verdict…He essentially said that if senators do not support a real trial, they leave themselves open to the charge that they (like Trump) are part of a “coverup.” Unlike the House, the Senate might contain a small number of Republicans who care about such things, or at least worry they might lose independent voters in swing states by advancing outrageous arguments on process/fairness and then voting to let Trump off the hook.
Another advantage for Schumer is Republicans’ own propensity to overreach as they play to an audience of one (Trump). Sen. Lindsey O. Graham (R-S.C.) took a surprising amount of heat for snubbing his role as an impartial juror, as did McConnell for openly assuring the base he was colluding with Trump’s lawyers….
Third, while there are so far only a couple, Republican non-officeholders are beginning to pop up. Former Homeland Security secretary Tom Ridge (“As far as I’m concerned, it is abuse of power”) and former presidential candidate Carly Fiorina (“destructive to the republic”) both have publicly stated that they support impeachment. The less open and fair the trial, the more figures on the right may begin to emerge, however timidly, suggesting the only “hoax” is the Republicans’ fake trial.
Finally, Schumer is also aided by the horribly weak response from Republicans. Their line is that Democrats should have gotten all the facts in the House and, now, it’s effectively too late. This is balderdash. The House effectively indicts; the Senate tries the case. As in every trial in the United States, lots of witnesses might become available between the indictment and the trial. That is normal and appropriate; the “solution” is not to exclude it because the grand jury found enough evidence for an indictment. Republicans really cannot simultaneously claim there is not enough evidence and then refuse to cooperate in getting it.
Professor Lawrence Tribe weighed in at The Washington Post: Don’t let Mitch McConnell conduct a Potemkin impeachment trial.
For some time now, I have been emphasizing the duty to impeach this president for abuse of power and obstruction of Congress regardless of what the Senate might end up doing. Now that President Trump’s impeachment is inevitable, and now that failing to formally impeach him would invite foreign intervention in the 2020 election and set a dangerous precedent, another option seems vital to consider: voting for articles of impeachment but holding off for the time being on transmitting them to the Senate.
This option needs to be taken seriously now that Majority Leader Mitch McConnell (R-Ky.) has announced his intention to conduct not a real trial but a whitewash, letting the president and his legal team call the shots.
Such an approach could have both tactical and substantive benefits. As a tactical matter, it could strengthen Senate Minority Leader Charles E. Schumer’s (D-N.Y.) hand in bargaining over trial rules with McConnell because of McConnell’s and Trump’s urgent desire to get this whole business behind them. On a substantive level, it would be justified to withhold going forward with a Senate trial. Under the current circumstances, such a proceeding would fail to render a meaningful verdict of acquittal. It would also fail to inform the public, which has the right to know the truth about the conduct of its president.
Read the rest of Tribe’s argument at the link.
At Politico, Edward B. Foley offers another suggestion: Here’s One Surprising Way Congress Could Avoid an Impeachment Disaster.
If the process plays out as everyone believes it will, impeachment will end with an acquittal in the Senate, and the House’s efforts to protect the integrity of the 2020 election will have proved counterproductive: President Donald Trump, claiming a “ full exoneration,” could be emboldened to engage in misconduct similar to or even worse than his interactions with Ukraine.
But there is a way out of this mess that would let the House impeach him—while allowing the Senate only to censure Trump, rather than having to vote to convict or acquit him. The House could express its disapproval of Trump through an impeachment vote, and the Senate, through censure rather than a trial, could embrace, even enhance, the House’s message. Yes, Trump would stay in office. But because both chambers of Congress would be on the record in officially condemning his conduct, there is a decent chance this approach might deter Trump from similar elections abuse.
This might work with normal president, but does anyone really think this would deter Trump? I don’t. Still, here’s more of Foley’s argument:
We can call this strategy “conditional impeachment.” Here’s how it would work: The House adopts its articles of impeachment, as it is planning to do. But it also adopts a separate resolution saying that the House will deliver the impeachment articles to the Senate only if the Senate fails to censure the president for his Ukraine-related misconduct by a specified date. If the Senate does censure Trump, the House could refrain from delivering the articles of impeachment to the Senate at all.
This scheme might seem ambitious. But, as the House prepares for its floor vote on Wednesday, the plans relating to the handoff of impeachment to the Senate seem to be fluid, and there is growing sentiment that Speaker Nancy Pelosi should avoid sending articles to a quick Senate demise….
The idea of “conditional impeachment” is not in the Constitution, but the Constitution clearly allows it. There is no constitutional obligation for the House to deliver articles of impeachment to the Senate for a trial—only that if there is to be an impeachment trial, then the authority to conduct that trial is exclusively lodged in the Senate. If the House wants to adopt its articles of impeachment but never send them to the Senate for trial, that is within the House’s “sole power of impeachment,” as granted in the Constitution (Article I, Section 2). That “sole power” also means the House has the authority to predicate its withholding of the articles of impeachment on a specific condition.
The problem with this is that nothing short of a vote for removal is likely to stop Trump. Even then, he might fight to stay in the White House.
Another point of view from Jonah B. Gelbach at The Los Angeles Times: Opinion: How Democrats can call the Republicans’ bluff on impeachment.
In the weeks since the House impeachment hearings started, Republicans have flitted from one argument to the next to try to convince Americans that the process lacks validity. One point they have made repeatedly is that the evidence is largely hearsay, and therefore invalid.
I teach federal evidence law, and that argument doesn’t hold water. Much of the testimony in the record wouldn’t be hearsay at all under federal court rules, and other statements would be admissible under one or another hearsay exception. Moreover, as Senate Republicans have made obvious with their recent proclamations about how the Senate should proceed, an impeachment trial isn’t a federal court proceeding.
It’s an absurd situation. Republicans say the evidence isn’t up to snuff. Yet the very man under investigation, President Trump, is the one who has blocked the testimony of witnesses who might strengthen the case.
The time has come for congressional Democrats to call the Republicans’ bluff: They should go to court to compel testimony from key members of Trump’s inner circle who have firsthand knowledge of the president’s dealings with Ukraine, including former national security advisor John Bolton and White House acting Chief of Staff Mick Mulvaney. These witnesses should tell the House what they know, under oath, even if that means delaying a vote on the articles of impeachment.
Click on the link to read the rest.
One more from CNN: Disparate group of Republican senators worry White House and GOP leaders ahead of impeachment trial.
Senate Minority Leader Chuck Schumer’s high-profile push for witnesses to testify in the Senate’s expected impeachment trial of President Donald Trump shifted attention and political pressure on Monday to a handful of Republican senators who have worked diligently to avoid the spotlight.
The disparate group’s views on the trial are a concern to the White House and GOP leaders, who are worried some could break and vote with Democrats on key trial-related issues, sources tell CNN.
If four of them were to buck calls from GOP leaders for a short, witness-free trial, it could upend the process and create the kind of wild uncertainty Senate Majority Leader Mitch McConnell says he has been carefully “coordinating” to avoid in ongoing talks with top White House officials.
The group includes moderates up for reelection, like Sen. Susan Collins of Maine, who may want to show independence from Trump; seasoned veterans, like Sen. Lamar Alexander of Tennessee, who are retiring and who may not feel politically bound to support the President; and outright critics of Trump, like Sen. Mitt Romney of Utah, who have challenged his unorthodox presidency and who may want to learn more about the allegations of a quid pro quo with Ukraine that is at the heart of the impeachment.
The group isn’t big enough to threaten Trump’s presidency — there would have to be at least 20 Republicans break with Trump to provide the 67 votes needed to actually remove him from office and no one is predicting that. But if enough peel off they could provide Democrats with the 51 votes needed for key wins, such as to compel witnesses, demand documents and push through other procedural motions Democrats may seek during a trial.
We have some momentous days ahead. Now what stories are you following today?