Monday, December 16, 2019

Trump might be unchained by a Senate failure but the House Dems have leverage

You might have seen news stories or opinion pieces speculating on how Trump, if not convicted and removed from office, would behave even more monarchically than he is now. There are two parts to that speculation. (1) The Senate will not convict let alone remove. (2) Unrestrained by the constitution or rule of law, Trump will double down on the behavior that got him impeached in the first place.

Roving Reporter Sherry suggests this story from CNN: Republican tactics spark Democratic claims that impeachment trial is rigged.

Even before Donald Trump is impeached, the partisanship of his looming Senate trial is casting doubt on whether polarized Washington can hold a President to account – now and in the future.

Lindsey Graham is the prime example of why the Senate will not take action against Trump no matter what.

On Saturday, Republican Senate Judiciary Chairman Lindsey Graham told CNN’s Becky Anderson in Doha that he wasn’t pretending to be a “fair juror.” He went further on Sunday, saying he wanted to dispense with the Senate trial as quickly as possible.

“I (have) clearly made up my mind. I’m not trying to hide the fact that I have disdain for the accusations and the process. So I don’t need any witnesses,” Graham, a South Carolina Republican, told CBS’ “Face the Nation.”

In the absence of the Senate exerting is constitutional power, Trump is likely to keep behaving as an autocratic dictator.

Trump unrepentant

Trump is showing every sign that he will become even more unrestrained after he is impeached. He met Friday with his personal lawyer Rudy Giuliani – who is just back from Ukraine on a mission to dig for dirt against Biden – the exact conduct that helped trigger the impeachment drama in the first place.

And on a weekend Twitter tear, the President picked up on a new Republican line of defense that there was no case to answer because he asked Zelensky to do “us” a favor – as in the US – rather than a personal favor for himself.

“A PERFECT phone call. ‘Can you do us (not me. Us is referring to our Country) a favor.’ Then go on to talk about ‘Country’ and ‘U.S. Attorney General,’ ” Trump wrote on Twitter. “The Impeachment Hoax is just a continuation of the Witch Hunt which has been going on for 3 years. We will win!”

Trump’s claim is however undermined because his request to Zelensky referred to a conspiracy theory that Ukraine and not Russia interfered in the 2020 election.

It is not clear why that favor – relating to a personal political obsession of Trump – would be in the national interest. A conventional interpretation of US interests in Ukraine would center on supporting a government under siege from Vladimir Putin’s Russia.

Trump also tried to persuade Democratic New Jersey Rep. Jeff Van Drew, who is against impeachment, to switch sides. If Van Drew crosses the floor, he would be greeted as a hero by Republicans. But Democrats will argue he is quitting because his opposition to impeachment has alienated his own party supporters. Five of Van Drew’s staffers quit Sunday night, saying they can “no longer in good conscience continue our service,” according to a resignation letter obtained by CNN. A sixth also resigned.

It is not a surprise that partisan feelings are shaping the impeachment end game – after all, by its nature, it is a political process prone to shaping by public opinion.

And Democrats have offered Republicans an opening by declining to challenge Trump’s refusal to provide key witnesses and testimony under a claim of absolute executive privilege in the courts, reasoning it would take too long.

Yet the partisan approach of the GOP underscores the fact that for most Republicans, even admitting any kind of wrongdoing by the President would be akin to political suicide.

That’s why this impeachment drama – unlike Bill Clinton’s 20 years ago – has not involved calls for an apology from the President for his own side or any discussion about whether he has transgressed, albeit in a way that does not merit impeachment.

The absence of such discussion is one reason why this impeachment showdown could have a long legacy as it will effectively enshrine a precedent of a President using executive power to lean on a foreign country for his personal political gain.

And the Republican chorus that Trump did nothing wrong and a refusal to even examine an impeachment case suggests a blueprint for future scandals. The party of an unrestrained President could henceforth spare him or her from scrutiny as long as they control the Senate and there is no super majority to convict.

But there may be a way to hold the Senate to its constitutional duty.

Charlie Sykes in the morning email summary from The Bulwark has this interesting suggestion. (The rest of this post assumes block quotes.)

Impeach And Withhold

I have some thoughts in today’s Bulwark. When I suggested this on Chris Mathews’s show last week, he slapped it down… hard, suggesting that I was being wildly unrealistic. Maybe.

But the idea of delaying the referral of impeachment to the senate seems to be gaining traction because it is beginning to dawn on Democrats that the moment they send Donald Trump’s impeachment to the senate, they will have lost all of their leverage.

So they shouldn’t do it.

At least not yet, especially in light of the recent comments from Mitch McConnell and Lindsey Graham.

McConnell has said that intended to work in “total coordination” with the White House and that “I’m going to take my cues from the president’s lawyers." And he adds: “There’s no chance the president will be removed from office.”

Graham is, if possible, even less subtle. “I am trying to give a pretty clear signal I have made up my mind.,” he said over the weekend at Doha Forum in Qatar. “I’m not trying to pretend to be a fair juror here… I will do everything I can to make it die quickly.”

Nota Bene: It will be difficult for Graham and others to square those public comments with the oath that senators are required to take at the opening of the senate’s impeachment trial: “I solemnly swear … that in all things appertaining to the trial of the impeachment of Donald J. Trump, now pending, I will do impartial justice according to the Constitution and laws: So help me God.”

So House Democrats should treat those comments as game changers. They clearly signal that the GOP leadership is planning a sham trial that will end with a president who will be emboldened and empowered by what he will claim was his exoneration. At the moment, that is Trump’s endgame and once impeachment lands in the senate, it may be only weeks away from consummation.

Elsewhere in the Bulwark today, Bill Kristol and Jeffrey Tulis make the case that a small group of senator could “form a constitutional caucus,” that could “determine what the outlines of a full and fair trial would look like.”

But the House needs to take that a step further: it should put maximum pressure on the senate to fulfill its oath, especially the vulnerable senators who might hold the balance of power in the senate.

The key here: there is no requirement that the House immediately send the articles of impeachment over to the senate. This is Speaker Nancy Pelosi’s final card.

So here is a modest proposal: the House should (1) vote to impeach on Wednesday, and (2) withhold sending it the senate unless and until a majority of senators commit to holding an open and fair trial in accordance with the constitution.

Speaker Pelosi could highlight Trump’s continued cover up and obstruction, while also noting that his abuse of power is a crime in progress.

She could also explicitly link the referral to Chuck Schumer’s demands for key documents and the testimony of senior White house officials including acting White House chief of staff Mick Mulvaney; Robert Blair, a senior adviser to Mulvaney and former national security adviser John Bolton.

Here is what she could say: “This is a grave constitutional moment. And it requires a full, open, and fair trial in the senate, in accordance with the Constitution and the oath that senators take at the beginning of any trial. But the comments from the senate majority leader and chairman of the Judiciary Committee risk making a mockery of that process.

“They may think this is a joke. we don’t. We think it is deadly serious and we think the American people deserve to know the facts and the truth.”

So….

"We will refer these articles of impeachment to the senator when a majority of its members commit to a full and fair trial that includes an honest attempt to look at the evidence, hear witnesses, and examine documents that have so far been withheld from Congress and the American people.”

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