White House

Why Impeachment Failed

Senators cast their votes on the first article of impeachment, abuse of power, during the final votes in the Senate impeachment trial of President Donald Trump in the Senate Chamber, February 5, 2020. (U.S. Senate TV/Handout via Reuters)
Trump’s opponents have a habit of covering up their own shortcomings with false accusations against their political opponents. That tendency doomed impeachment — and is undermining the democratic process.

Many Democrats and their allies in the press were calling for the impeachment of Donald Trump long before the infamous call with the president of Ukraine had even happened. Countless mainstream newspapers and magazines developed elaborate rationales for why the president should be impeached. Most of these, however, did not argue that Trump had committed impeachable offenses. Rather, they assumed as established fact that he had done so, with assertions that were usually supported by nothing other than the adverb “clearly,” as in, “the president has clearly crossed the threshold for impeachment.”

At that time, let’s assume that half the country agreed that Trump had “clearly” committed impeachable offenses. That judgment rested only on their original character judgment of Trump, and a bunch of conspiracy theories of varying degrees of preposterousness, which they were trying on for size randomly, as if shopping for cowboy boots in a vintage store.

Meanwhile, the other half the country did not share the Democrats’ character judgment. Indeed, they were rapidly becoming convinced of the opposite. Many Republicans who were Trump skeptics at first, and more than a few Never Trumpers, were concluding that the president, for all his objectionable traits and habits, was turning out to be a better president than many of them expected, and was perhaps more well-meaning than he liked to let on. As one accusation after another turned out to be false, former Trump skeptics became increasingly skeptical of Trump’s opponents. On top of that, the Left’s accusations often swept all conservatives in with the president; they were accusing conservatives’ neighbors and family members of racism and other such nonsense simply because they had voted Trump.

Hence, the Democrats pressed forward in their zealous campaign to unseat the president just as sympathy for the president was strengthening among the very Republicans the Democrats needed to convince in order to prevail. Then the Democrats made a fateful mistake: They launched an impeachment proceeding based not on explosive allegations of impeachable conduct (as with Nixon), or credible evidence of actual criminal behavior (as with Bill Clinton), but on the basis of factual allegations that were at worst highly ambiguous.

In a series of interactions with the government of Ukraine, the president had asked for clarification about possible corruption involving a Ukrainian company that was at one point paying in excess of $50,000 per month to Hunter Biden in the obvious hope of gaining influence over then–Vice President Biden. There was some evidence that President Trump wanted to make U.S. assistance to Ukraine, which was briefly held up after a congressional mandate, conditional on these clarifications, possibly in the form of an investigation, or an announcement thereof. There was also some evidence that he backed off  at the urging of senior advisers.

Clearly, the president was asking for something that might be of personal political benefit to him. But the entire course of dealing also had at least a plausibly legitimate policy purpose. Personal political considerations are often central in foreign policy-making, because foreign policies that aren’t politically beneficial don’t last. Besides, it wasn’t so easy to say with certainty what his main motives were. He asked the president of Ukraine to work with Attorney General Barr, a clear signal that he meant any quid pro quo to be government-to-government, not personal — though that didn’t lead anywhere. Indeed, it wasn’t clear that the president didn’t have motives entirely unrelated to the Burisma investigation: Famously skeptical of foreign aid, he gave multiple senators the impression that this skepticism was his main hesitation on releasing the Ukraine aid.

To put things in proper perspective, these were not allegations that the president had asked Ukraine to finance the building of a Trump Hotel in Kyiv. Such a request could not have had a legitimate motive. If such an allegation had come to light, Republicans could have turned against the president, assuming the allegations could be proven. But these allegations were of an entirely different sort. Maybe the president had considered doing something impeachable, or had come close to doing something impeachable, or had engaged in an unseemly course of conduct. But to prevail, the Democrats needed to convince almost half of all Republican senators that the president had done something that merited removal from office. And to do that, they needed both to make allegations that were explosive and to be able to back those allegations up with evidence.

They did neither. Instead, Democrats launched impeachment proceedings on a theory of corruption based on facts that were muddled. Republicans could have been swayed by clear evidence of bribery. But none emerged from testimony in House hearings that the Democrats insisted were a smoking gun. When the president quite rightly asserted executive privilege to prevent senior administration officials from testifying on national security matters, the Democrats withdrew their subpoenas rather than trying to enforce them in court. This was inexplicable, considering that court enforcement of precisely such subpoenas is what finally forced Nixon to resign. And which was it? Had a smoking gun come to light, or was the president covering up the smoking gun? The Democrats incoherently claimed both to be true.

While people were still scratching their heads over all of that, the Democrats then suddenly decided to back off the bribery charge altogether, as their evidence didn’t meet the standard for bribery under U.S. law. Instead, they voted to impeach the president for (1) abuse of power on the basis of “almost bribery” and (2) obstruction of Congress for asserting executive privileges that any president would have asserted, and which were so compelling that the Democrats were afraid to challenge them in court.

The House thus sent to the Senate two articles of impeachment that struck many Republican senators as an abject failure to prove any sort of impeachable offense. The general impression among Republicans, quite apart from what they might think of the president personally, was that the Democrats were turning the whole impeachment proceeding into a circus in which the chief entertainment was their own incompetence and mendacity.

You could agree with their argument only if you already believed that the president’s conduct was impeachable before hearing any of the evidence. And there was only one Republican senator in that camp — Mitt Romney, the last remaining champion of your grandfather’s Republican Party. Even he voted against the Democrats’ absolutely preposterous obstruction-of-Congress charge.

At this point, thinking people on the Democratic side should have perceived the fatal weakness of their argument, namely that it presupposed the very proposition to be proved. Amazingly, however, there has been almost no self-reflection on their side. They appear to have collectively dismissed even the possibility that their failure to remove the president was due to the weakness of their case. Instead, Democrats are now saying that if you found their case for impeachment unconvincing, you must not have any standards and would let the president get away with anything. One’s spirits sink. The assertion is so wrong at so many levels, one knows not where to begin to set them right.

For starters, their assertion simply cannot be correct as a factual matter. If they had alleged, and been able to prove, actual bribery — as in the hypothetical of the Trump Hotel in Kiev — the president would be finished. Obviously, there are many things the president could do that would cause Republican senators to vote for removal. The House simply didn’t allege any of those things.

Second, the accusation of Republican senators’ corruption is shockingly unfair. Imagine if every prosecutor that lost a case due to his own incompetence or the paucity of evidence blamed his failure on corruption of the jury. One may justly thank God that our criminal-justice system forecloses that possibility. The House Democrats had their chance to convince Republican senators, and they failed. Almost 50 years ago, against Nixon, they succeeded. And Nixon was adored among Republican senators, perhaps more than any president since then save Ronald Reagan.

What sort of system would let someone put a certain proposition to a vote, and then, when the proposition loses, allow the proponent to escape the consequences merely by claiming that the system is corrupt? Our elected officials, of both parties, deserve some benefit of the doubt. Otherwise, the whole system breaks down in mutual recrimination and suspicion.

Third, the Democrats’ reflexive position of “heads I win; tails, you cheated” is incredibly counterproductive. Every time they fail to convince a majority of Americans to agree with them, they blame the process. They lost in 2016 because they failed to understand what was at stake in the election and fielded a terrible candidate. But instead of reckoning with their failure, they invented, and somehow got CNN to propagate nonstop for more than a year, among the most stupid and preposterous conspiracy theories in the history of American politics, namely that an American presidential candidate had colluded with Russia to subvert the election.

Finally, the Democrats’ habit of blaming every defeat on the other side’s corruption of the process undermines faith in our democratic institutions — the very thing they claim to be fighting for.  The democratic system doesn’t require that everyone will agree on everything — it presupposes that they won’t agree broadly on almost anything. But in order to work, the society at large has to agree on common principles, such as the Constitution. We have to agree on a common set of procedures. We have to trust those procedures and accept the results when they go against us. If every time you lose an election, or a court case, or an impeachment proceeding, you say that the other side corrupted the process, what you are saying is that the process is corrupt. If people eventually believe you, they will lose faith in our democratic institutions.

The impeachment fiasco appears to be benefiting the president so far, particularly among former Republican skeptics. But at the end of the day, it has left us all poorer, and Democrats most of all.

Mario Loyola — Mr. Loyola is a fellow at the National Security Institute of George Mason University School of Law and a former defense-policy adviser at the Pentagon and in the U.S. Senate.


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