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Fri Jan 24, 2020, 08:58 PM

Friday Talking Points -- My Impeachment Reactions So Far

Since there's really only one story this week, we're going to totally forgo our usual format here and instead share our thoughts on the impeachment trial of President Donald Trump in the United States Senate. Other things happened in the world of politics this week, but they all pale in comparison to the constitutional theater playing out live on television for seemingly-unending hours. We're even going to forgo our much-beloved editorial "we" this week, to better focus on our personal reaction to the third-ever presidential impeachment trial in our history.



The mechanics of an impeachment trial

I must admit, I haven't watched every single hour of it, although to my credit I did make it through all of the televised House testimony from beginning to end. The trial is a rehash of what was learned in those hearings, assembled in storyline fashion and complete with all the relevant video clips from the hearings. The House managers are spending 24 hours over three days on what in a criminal trial would merely be the opening statement from the prosecution. The president's team of lawyers will then have the same 24 hours over three days to present the defense's opening argument.

Unlike in a criminal trial, however, what happens next is that the senators will have two days to ask questions of both sides. Questions must be submitted in writing, and will be read by the chief justice, who is presiding over the trial. The senators are often called "the jury" but in reality they also have much of the power of judges as well.

The schedule for all of this is still in flux. Republicans suddenly discovered that working six days a week means working on a Saturday, when television viewership will be low, so they're now planning on only having an abbreviated 3-hour session tomorrow and then presenting their main case beginning Monday. There are even some rumors that they might only take one full day, meaning they could wrap up their presentation Monday night. This would leave Tuesday and Wednesday for questions, on a fast-track timetable that seems designed to have the entire trial over and done with in time for the State Of The Union speech.

But what comes after the senators' questions is going to be the key vote in the whole trial: whether to subpoena witnesses and/or documents from the White House. Nobody knows which way this vote is going to go. If all Democrats stick together, they'll still need four Republican votes to force witnesses to appear. Speculation is rife over a handful of GOP senators who are either publicly wavering, facing tough re-election fights in blue or purple states, or who will be retiring rather than running for re-election. Rumors have been flying all over the place about what's going to happen. At one point, it seemed there might be a deal on Democrats allowing Hunter or even Joe Biden to testify in exchange for perhaps John Bolton and/or Mick Mulvaney, but this was quickly disavowed by both sides. The White House is reportedly taking one heck of a firm line, warning GOP senators that their heads "will be on a pike" if they vote against the president at any point. If any Republicans do vote for witnesses, I expect it to be a last-minute surprise akin to John McCain's famous "thumbs-down" vote on killing Obamacare.

Democrats have the public on their side, it seems, on this crucial question. Anywhere from two-thirds to 70 percent of the public agrees in poll after poll that the Senate ought to call new witnesses. That's a pretty strong level of support, and it means that any Republican who votes against it can expect it to be used in a campaign ad against him or her in the very near future. It's a pretty easy case to make, which is why it polls so high already: "Who ever heard of a trial without evidence and witnesses?" In fact, every previous impeachment trial in American history -- all of them, including the impeachment of federal judges -- have had witnesses and evidence.

Mitch McConnell is apparently trying to warn his fellow Republicans that if witnesses are called, the White House will claim executive privilege and it'll wind up in the courts -- which will only serve to delay and lengthen the trial. At this point, that would royally screw up the schedule that McConnell has laid out and easily push the trial beyond the State Of The Union speech. However, this argument does ignore one point, which is that if a witness voluntarily decides to ignore Trump's claim of executive privilege, then nothing can stop them from testifying and answering every question put to them -- which would avoid the court fight altogether. Indeed, this has already happened with all those people who testified at the House hearings. And there's only one person to whom this really might apply: John Bolton. Bolton is a total enigma, at this point. Nobody knows what he's going to say if he gets the chance to speak. Neither side has any idea whether he's going to throw Trump under the bus or perhaps make an attempt to exonerate him. Republicans rightly see the risks of calling Bolton, but Democrats may not. If Bolton doesn't provide the bombshell evidence he's been hinting at, then it would be a real letdown for the Democratic side. Bolton is being coy about what he'll do, but he has indicated that if the Senate does subpoena him, he will appear without trying to fight it in the courts. If he sticks to that and does decide to spill the beans on Trump, there is absolutely nothing Trump can do to prevent it.



The trial's outcome

Adam Schiff and the other House managers are giving the best speeches of their lives in front of a captive audience of senators. But in the end will it mean anything?

The entire impeachment process, almost from beginning to end, has resembled nothing more than Kabuki theater. We all knew what was going to happen pretty much from the start, the process has played out over the past months, and now we're at the endgame. The trial does not so far appear to have changed anyone's mind and everyone fully expects -- whether witnesses are called or not -- that in the end two-thirds of the Senate will not vote to remove Donald Trump from office. No matter what the final vote (Democrats will only be able to make the attempt to claim victory if they get four Republicans to give them a majority vote, it is worth mentioning), Trump is going to be president for the next year, at the least. That has been the conventional wisdom since the start of the House investigation, and in this case the conventional wisdom is going to turn out to be right.

The few Republican senators from blue or purple states who are also up for re-election this cycle may pay a very heavy price no matter which way they vote. If they vote with Trump, they're going to risk alienating the moderate and independent voters in their states. If they vote against Trump, they risk their entire Republican voting base staying home on Election Day in disgust. Either way might mean a big enough drop in their support for a challenger to unseat them. Susan Collins is the most-often mentioned in this group, but there are others who are going to have to walk that tightrope as well. If enough of them are defeated in November, they will in essence have torpedoed their own political futures to save Trump, and in doing so handed the Senate to the Democrats.

But no matter what the exact final vote is, nobody alive thinks that it's going to be 67 or more in favor of removing Trump from office. Trump will then immediately begin bragging that he's been "totally exonerated" and may in fact conclude that there is nothing he can't get away with in terms of abusing presidential power. And he may be right about that, at least for the next year. What would it really take for Nancy Pelosi to decide that a second impeachment right in the middle of the election is absolutely necessary? That bar is going to be sky-high, and Trump will doubtlessly exploit it. This will all begin about ten seconds after the Senate vote total is announced, that's my guess.

All presidential impeachments have been overwhelmingly political, it bears pointing out. Andrew Johnson's was nakedly so, Bill Clinton's was... well, let's not use the work "naked" around Ol' Bubba, hmmm? Donald Trump's has been just as partisan an exercise as Clinton's was (due to all the Republicans sticking with him no matter what was revealed) -- and the outcome is just about as certain as it was back then, too. Ironically, the only real nonpartisan impeachment effort we've ever had never led to an actual Senate impeachment trial, because Richard Nixon had the sense to step down before it got to that point.



The precedents being set

There are precedents being set in the impeachment and trial of Donald Trump that will likely come back to haunt both sides of the political aisle, in different ways.

In general, however, one has to wonder if impeaching presidents itself is going to become normalized in American politics. After Johnson's impeachment we went almost a century before it was even set in motion again against a sitting president. Nixon's case was so egregious that he lost the support of his own party. But the case against Bill Clinton was the result of an independent counsel who took it upon himself to investigate every aspect of the Clintons' lives, even though he began by looking into a real estate deal in Arkansas. Eventually, they caught Bill lying under oath about having sex with an intern, and the House Republicans decided that this was impeachable behavior.

Donald Trump was impeached for far worse activities, even if Republicans won't now admit it. Conspiring with a foreign leader to use a foreign country's government to harass the president's political rival, and then leveraging this with both a carrot (an Oval Office meeting) and a stick (holding up hundreds of millions of dollars of much-needed military aid) is miles beyond lying about sex. It involves U.S. foreign policy, the sanctity of American elections, and Trump's personal political career in ways neither Clinton's impeachment nor Johnson's impeachment did.

But what once was almost unthinkable has now become once-in-a-generation. With the weaponization of everything else in Washington, will impeaching presidents now become almost routine? There's a scary thought. Will going after your political enemies with the full weight of the federal government become somehow acceptable? That's an even scarier thought.

Trump, of course, excels at being outrageous. He warned Senate Republicans that their heads would "be on a pike" if they don't vote for him, and it wasn't even the most outrageous thing from Trump that day. Trump has normalized his toddler-tantrum behavior to the extent that hardly anyone even raises an eyebrow at it any more. Will this set a precedent for future presidents? We all long for returning to normalcy, but what if this truly is the "new normal" and we never go back again? Donald Trump is a blowhard to be sure, but he certainly isn't the only blowhard in politics. Such blowhards used to be ridiculed by everyone else, but Trump has shown what a mighty power it can be when truly unleashed. Sooner or later someone is going to try to harness the same energy in the same way.

There are far more important precedents being set, however, on both sides. Nancy Pelosi resisted the urge to impeach Trump for almost a year before agreeing that Trump's Ukrainian "drug deal" rose to the impeachment level. But then after she took the plunge, she set an incredibly shortened timespan for the proceedings. It was reported at the onset that Pelosi wanted to be done with it all by Christmas, which is indeed exactly what happened. Pelosi reportedly really didn't want to get bogged down by months of court fights and have impeachment hearings ongoing throughout the entire presidential election, so she made the choice to not wait for any court proceedings and just push forward with what they had available. By doing so, she may have set not one but two precedents.

Donald Trump was impeached in his third year in office. Bill Clinton was already in his second term when he was impeached, so there was no re-election ahead for him. Will the rule of thumb now be that presidents can be impeached, but only if it happens before the general presidential election campaign gets underway? Or will some future House decide to impeach a president during his re-election campaign? It's impossible to know, at this point.

The second precedent Pelosi set was by moving so quickly. The impeachment hearings for President Nixon went on for months on end. Bill Clinton was impeached faster, but that was at the end of a very long investigation by the independent counsel. Donald Trump's impeachment happened relatively fast, because Pelosi refused to wait for the courts to weigh in (which could have taken longer than the rest of Trump's term, it's worth noting -- Trump might have "run out the clock" by challenging everything possible in the courts). This speed will doubtless be cited the next time a future House decides to impeach a president.

The Senate hasn't set any precedents yet, but they're about to no matter what happens. If witnesses and evidence are not allowed, you can bet that there will be a similar outcome in the trial of a future president, because they'll have this one to point to. But there's a larger precedent being set here that is going to have much more impact than how Senate impeachment trials are held. Donald Trump is claiming breathtakingly sweeping "blanket" immunity from answering congressional subpoenas. According to the White House, all they have to do is say no to any request for testimony or documents, and that is the end of the discussion. This is new, no matter how hard the Republicans try to make it sound reasonable and normal.

Think about it -- if Bill Clinton had successfully done what Trump is about to get away with, he never would have been impeached. He never would have sat for a deposition. He would have refused to let anyone answer a subpoena and would not have shared a single document. Ken Starr would have had nothing to go on.

The concept of "executive privilege" has been getting wider and wider, as all presidents try to push the boundaries when investigated. Normally, the courts are the ones who push back by denying such claims and ordering testimony and evidence to be provided by the White House. But we didn't have such rulings this time, and the Senate Republicans are about to vote their approval -- especially if they vote not to hear any further witnesses. Donald Trump has blown up all the constraints on executive privilege claims and issued a blanket order that nobody testify and no documents be provided to Congress. That is a precedent which is going to come back to bite the Republicans on the hindquarters, without doubt.

In the immediate future, it will mean Trump can essentially ignore Congress. He can refuse them any request even if backed up by subpoena. That's fine with the Republicans, of course, for now. But eventually a Democrat is going to sit in the White House again, and at some point a Republican Congress is going to try to investigate him or her. What possible reason would a Democratic president have to cooperate? Not only did Donald Trump prove that stonewalling is the way to go, but all the Republicans in the House and Senate essentially agreed that this was fine with them. So how will they argue in the future that presidents must comply with their demands? They won't have a leg left to stand on. We could be seeing the last functional congressional investigation of a president, ever. If Congress pushes back by taking it to court, all a Democratic president will have to do is to endlessly file motions and objections and appeals to delay the entire process until they're out of office -- just like Trump.

That is the most important precedent being set here, and it is one that few Republicans are even aware of right now. Their blind partisanship is leading them into putting their mark of approval on a tactic that they are going to howl mightily about when it is used against them, that's my prediction.

There's also the precedent of an American president not only allowing foreign interference in a presidential election but in fact demanding it. That's the most evil precedent being set, which is why few Republicans will even answer the straight-up question: "Do you think U.S. presidents should be allowed to pressure foreign governments to dig up dirt on their political opponents?" That used to be a very easy question to answer, no matter what your political party, but now it isn't. However, at some point Donald Trump will be gone, and hopefully no future president will ever attempt such an extortion scheme again. Hopefully. But there will be nothing to stop them from doing so if the Senate puts its stamp of approval on the tactic.



The case being made

From what I've heard (and I've already admitted I haven't heard it all or even the majority of it), the House managers are doing a great job of weaving together all the threads of the story of how Donald Trump tried to force a newly-elected foreign leader to investigate the conspiracy theories that Rudy Giuliani and Vladimir Putin had whispered to him. They are making a good prosecutorial presentation that is indeed exhaustive. These sessions go on into the evening, and they would have been even longer if Mitch McConnell had had his way and forced 12 hours per day instead of just eight. Thankfully, that didn't happen.

By design, none of us can see what the senators are doing while this all goes on. The cameras in the Senate chambers are controlled by the Senate, and the news media is under many strict rules, one of which is no recording devices. So there are no photos or video of what is happening beyond the podium. We've gotten reports of all sorts of trivia about the audience, however, that some Republicans are playing with fidget spinners while others are reading books or doing crossword puzzles to pass the time. We've even learned who has ordered milk (the only two beverages allowed are water and milk, apparently). But it's pretty plain that no matter how close attention anyone is paying, the end result is going to be the same. Whether we see witnesses or not, about the best the Democrats can hope for is to convince a handful -- at best -- of Republicans to vote to remove a sitting Republican president. If Democrats do get three or four GOP votes, that'll be the biggest storyline out of the entire process, in fact. But the expectation is that both parties will end up voting strictly on party lines on the question of removing Trump from office.

Before we get to that point, of course, the Trump team will get their innings. Starting tomorrow, we'll hear from them, but we all know what it's going to be like. We've seen it before, in all the antics from the House Republicans who sat on the relevant committees. The best and easiest argument for Trump's lawyers to make may not even be raised, because it would consist of arguing that perhaps Trump may have done something wrong but even if that were the case it in no way rises to the level of impeachment. Trump is said to hate this line of argument, because it even allows for the possibility that his Ukrainian phone call was not, in fact, "perfect." This would be the ideal argument to make to the Republican senators, because it would allow them some moral breathing space -- they could even agree that Trump did something that presidents simply should not do, but at the same time argue that it was so minor as to not be impeachable. That sort of hair-splitting would allow plenty of political wiggle room for those Republican senators who still possess some shred of conscience. But Trump doesn't even like the suggestion of wrongdoing, so this argument may not even be made.

The president's legal team may in fact cut their presentation short, and only take a day and a half rather than three days. I'm sure the senators will be OK with that, since their stamina is already being sorely tested by having to sit in the same place without their smartphones and all. But for at least one full day, we'll hear Trump's praises being sung to the high heavens by his lawyers. This, notably, is not going to change anyone's mind any more than the House managers' presentation will. Journalists all have to pretend that what is being said and how it is being delivered matter a great deal and will have some sort of impact on the end result, but I bet if you got any of them off the record they'd admit that they were fully aware they were watching grand Kabuki theater.



Was it worth it?

This will be the biggest question asked after all the dust settles. Was it worth it? Trump stays in office, validates his position as the ultimate victim, and crows to the skies that he has been "totally exonerated." That's the overwhelmingly likely result, whether it comes at the end of next week or at some time a little further in the future.

If John Bolton is allowed to testify, will he have anything earth-shattering to say? That's a question that could mean a big difference in the "Was it worth it?" question afterwards. Even if Bolton unloads on Trump and exposes him for being ill-informed, illogical, petulant, petty, and downright criminal, is that going to change anyone's vote next November? It certainly would make for a more interesting trial, that's for sure. Bolton is such a staunch righty that it's almost impossible to cast him as some sort of Democrat-loving partisan out to get Trump. And he was in the room when all of the important discussions and decisions happened, so he would have first-hand knowledge of what went on, which he could uncover in brutal fashion (if he so chooses). He'd never work for a Republican administration again, but his name would live in history, that's for sure.

Trump will, as Nancy Pelosi pointed out, always be the third president to be impeached. That is forever. He'll also likely be the third president to remain in office after being impeached. The whole thing will be a stain on his legacy, though, and that might be the best answer to the "Was it worth it?" question, for Democrats.

Democrats saw impeaching Donald Trump as their duty, after all. Pelosi didn't even want to go there, but was forced to by the egregiousness of Trump's actions and behavior. House Democrats were restrained in what they impeached Trump over, as well -- they could have thrown everything but the kitchen sink in there (breaking the emoluments clause, the obstruction of justice found by Bob Mueller, illegally altering an official weather map, etc.), but they chose not to. Will they later regret this? It's impossible to know, at this point. But I fully expect any Democrat who voted on impeachment in either the House or the Senate to respond afterwards to the "Was it worth it?" question with some version of the following: "That's the wrong question, because we didn't really have a choice -- our duty to the Constitution and the oath we all swore demanded that we impeach Donald Trump. I leave the question of whether it was worth it or not to the historians."

My guess is that the impeachment and trial of Donald Trump is no more than a bump in the road. Because Pelosi refused to wait for the courts, I truly think it's going to be such "old news" by the time of the election that it's not going to have any real effect one way or the other. Perhaps it'll affect turnout of both the Democratic and Republican base voters, but it already seemed like we were headed for record turnout on both sides anyway.

Normally, a presidential impeachment would loom large over a re-election campaign, and Trump is certainly going to milk it for all it is worth on the campaign trail (indeed, he is already doing so). But this is Donald Trump we are talking about, and there are over nine months to go before Election Day. It's tough to remember what Trump was doing nine weeks ago, or even nine days ago, at times. He is a whirlwind of distraction, so who knows what people will be talking about in November? But my guess is impeachment will be pretty far down on the list by that point, because there will be so many other things happening -- both for Democrats to get outraged over and for Republicans to cheer about. Trump is a rollercoaster ride, and that's going to be even more true during his re-election campaign than ever. So in the end, I truly don't think the third impeachment of a sitting U.S. president is really going to have all that big an effect on the upcoming election. Everyone -- voters and senators alike -- had already made their minds up going in, and to date I haven't noticed anyone whose mind has been changed by any of it. It's stunning to admit, but I really think the impeachment of Donald Trump isn't going to move the needle of American politics one tiny bit, one way or the other.




Chris Weigant blogs at: ChrisWeigant.com
Follow Chris on Twitter: ChrisWeigant

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