Impeachment Power Can Be Abused, Too

House Judiciary Committee Chairman Jerry Nadler holds a news conference to discuss the Committee’s oversight agenda following the Mueller hearing on Capitol Hill, July 26, 2019. (Erin Scott/Reuters)
Democrats say Trump exploited his constitutional power for political purposes, but how is that different from what they are doing now?

It is not a good look for Democrats, in purporting to respond to the president’s abuse of his constitutional power over foreign relations, to abuse the House’s power over impeachment. That, however, is exactly what they are doing in their unseemly zeal to impeach President Trump on a blatantly political deadline.

In a December 1 letter, White House counsel Pat Cipollone notified House Judiciary chairman Jerrold Nadler (D., N.Y.) that the president will not participate in the committee’s first open hearing on Wednesday, December 4. Ordinarily — not that there’s anything “ordinary” about the potential impeachment of an American president — I’d be inclined to assess this as poor judgment.

After all, the lack of due process has been one of the president’s major complaints since late October, when the House belatedly voted to endorse the impeachment inquiry that Democrats have been conducting for months. Among the fundamental elements of due process is the opportunity to be heard. Having denied this opportunity to the president in Intelligence Committee chairman Adam Schiff’s faux grand-jury phase of the proceedings, Democrats are now inviting the president to participate in the Judiciary Committee phase, where articles of impeachment are soon to be drafted and voted on. The president’s complaints are apt to ring hollow if he carps about the witnesses from the Twitter sidelines while forfeiting the right to question them at the formal hearings.

Abstaining now could also be problematic down the road. Eventually, there will be a Senate impeachment trial. Because the House is now giving the president an opportunity to examine witnesses, Senate Democrats will have a good argument that transcripts from Nadler’s hearings should be admitted as trial evidence — i.e., the president should not be heard to complain since he will have passed up his chance to confront his accusers.

All that said, though, the White House’s position makes sense, at least for the moment.

To begin with, Cipollone is not saying that the president refuses to participate in all future House impeachment proceedings. The letter is limited to the hearing on Wednesday, December 4. To be sure, the commencement of formal hearings in the committee responsible for drafting impeachment articles is momentous — proceedings having reached such an advanced state only three times in American history (in connection with Presidents Andrew Johnson, Richard Nixon, and Bill Clinton). The substance of Wednesday’s hearing, however, will be not be make-or-break.

The committee is calling legal experts — not fact witnesses. They will be addressing the Constitution’s standard and process for impeachment rather than the president’s alleged misconduct. I do not mean to suggest that this is insignificant. Indeed, the last time there was a comparable proceeding in the House — in June 2016, when some Republicans were pushing for the impeachment of IRS Commissioner John Koskinen for obstructing Congress’s inquiry into the Obama administration’s targeting of conservative groups — I was privileged to appear on such a panel. (My submitted testimony is here.) Obviously, it is vital to flesh out the pertinent constitutional principles, irrespective of the conduct that’s at issue. These principles are well known, though. The White House loses nothing by trusting that committee Republicans will see to their proper explication.

The White House’s abstention from Wednesday’s proceedings does not mean the president’s defense team will sit out subsequent hearings, when more consequential witnesses may testify and when the president may be given a chance to present his own case.

Meantime, the Trump team is mounting an effective attack on the lack of due process in the House proceedings, particularly compared with past impeachments. Most of this has to do with the Democrats’ haste, which could not be more transparently political.

The problem Democrats have had from the first is the lack of an obvious impeachable offense. To be clear, I do not fault Democrats, and would not criticize any lawmakers, for using Congress’s oversight authority to expose executive misconduct. Impeachment is a political process. I argued in Faithless Execution that it cannot be invoked effectively (i.e., with a realistic chance of removal) in the absence of strong public support. That has to be built by educating the public on what has happened and why it matters.

But there comes a point in this process when you either have it or you don’t — “it” being proof of misconduct so egregious that a public consensus in favor of removal could be reached, such that two-thirds of the Senate might convict. The Democrats don’t have it.

This should have been patent from the start. In the initial public hearing in September, Schiff had to resort to reciting a parody version of the notorious Trump-Zelensky conversation because the real one was not sufficiently sinister. The parody had a fatal flaw: Schiff falsely portrayed Trump as having told Zelensky that he wanted Ukraine to “make up dirt” about his political opponent, Joe Biden.

In reality, Trump was not asking Zelensky to fabricate Biden corruption. He was asking the Ukrainians to look into a situation that undeniably oozes self-dealing: Biden’s son cashing in on his political influence; Biden’s threatening to have $1 billion in promised aid withheld from Ukraine if it did not immediately fire a prosecutor who says he was trying to investigate the corrupt company that was lavishly paying Biden’s son.

It should go without saying that a president should not exploit his control over U.S. foreign relations (and influence over the congressional aid that goes with it) in order to squeeze another country into advancing his domestic political fortunes. President Trump should know that better than anyone else: He has spent three years complaining (justifiably, in my view) that the Obama administration leveraged its control over foreign relations (as well as law-enforcement and intelligence operations) to benefit the Democrats’ 2016 campaign and to hamstring Trump’s administration.

So I am not contending that what the president did was right, much less “perfect.” Nor am I, for present purposes, looking to argue over whether Trump had legitimate motives (such as anti-corruption) that excuse or mitigate any pressure the Ukrainians may have felt — though it is worth noting that Zelensky denies having felt pressured.

My narrow point is that Trump’s offense vis-à-vis Ukraine had to be exaggerated out of all proportion because Schiff, as an experienced politician and former prosecutor, fully understood that the offense, to the extent there was one, simply is not serious enough to impeach over.

First, there is a big difference between seeking an investigation of something that cries out to be investigated and asking that damning evidence be made up out of whole cloth. Second, Trump dropped his request before anything materially damaging happened — the Ukrainians got their defense aid without having to announce or conduct any Biden investigation. In fact, Democrats do not want to dwell on the transfer of the defense aid, just as they don’t want to get into the details of Biden’s conflicts of interest; when it comes to combatting Russian aggression, Trump’s provision of materiel to Ukraine has been markedly superior to Obama’s.

All presidents abuse their powers to some degree at some point. To be impeachable, an abuse has to be grave. Were there such an outrageous abuse of power, the House would never have to worry about the calendar. If executive misconduct were sufficiently serious to impeach, the country would be convinced that the president’s continued wielding of power was grossly inappropriate, if not dangerous. The House would not take an extended Thanksgiving holiday in the middle of impeachment hearings; but neither would it fret about the possibility that impeachment proceedings might spill into an election year.

If a president were to do something that really warranted removal, then the imminence of an election would not be a persuasive reason for Congress to stay its hand. If Trump had actually asked Ukraine to dream up a Biden corruption case, or — even worse — if he had actually conspired with the Kremlin to hack DNC email accounts, no one would care that we are going to the polls in eleven months. There would be a bipartisan outcry that the country could not abide such a rogue for one day more than what was necessary for Congress to conduct exemplary but swift impeachment proceedings.

Here, by contrast, Democrats have had trouble even explaining what the impeachable conduct is, floating “campaign finance,” “extortion,” and “quid pro quo” as possible labels before finally (it appears) settling on “bribery” — a word that tested well in “impeachment focus groups” the Democratic Congressional Campaign Committee conducted in House battleground districts.

Moreover, in other important investigations (such as the one conducted by the 9/11 Commission), Democrats have told us that every rock must be turned over and every witness with any relevant information must be interviewed. Here, however, they lurch pell-mell toward articles of impeachment without litigating the privilege claims of essential witnesses (Giuliani, Mulvaney, Bolton, et al.). Again, if there were an offense in the impeachment ballpark, that would not happen. The House would press the courts for expedited review because a national emergency demanded that these witnesses’ confidentiality claims be resolved. And if the alleged abuse of power were truly grave, it would take no effort to persuade the courts of the need for speed.

That is not the case here because what’s at stake is not the well-being of the country. Rather, it is the anxiety level of Democrats. They are pushing for Donald Trump’s impeachment because their political base demands it, not because the American people broadly perceive the need for it. Democrats know the president won’t be removed, but they hope that affixing a scarlet-letter “I” on his chest will make him easier to defeat in 2020. Yet they are not confident that this is so, which is why they want to wrap up the House proceedings — the only ones they can control — as quickly as possible.

Democrats are well aware that without a real impeachable offense, they are not attracting Republican votes. The proceedings are starting to look just as politicized as they have always been. They are precisely the abuse of the impeachment power that the Framers feared. If matters fester too long, Democrats holding seats in pro-Trump districts may pay the price on Election Day. The race for the Democratic presidential nomination could be overwhelmed by an impeachment trial. Instead of paying attention to the candidates, the public will be hearing the president’s defense team make its case for why Biden — still the Democrats’ 2020 front-runner — merited an investigation. Instead of the Democrats’ political case against the president’s reelection, the public will be hearing the president’s team argue that Democrats collaborated with the so-called whistleblower to trump up impeachment, the political equivalent of a capital crime.

The Democrats could have made hay: exposing the president’s attempt to exploit foreign-relations power for political advantage, making it a 2020 election issue, and perhaps even offering a congressional censure resolution that would have put the president’s supporters on the defensive. Instead, House Democrats are abusing their impeachment power for political advantage. It is a miscalculation: They will never remove the president, but they might well help him win four more years in power.

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