Friday Talking Points -- The End Of The Impeachment Road

[ChrisWeigant]

{Program Note for DemocraticUnderground.com readers:
This is a weekly roundup column of what is going on in the political world. For the duration of the 2020 campaign, I've been instructed to post it under the "Democratic Primaries" category rather than the "General Discussion" category, whenever the primary race is discussed. This discussion may be a large part of the column, or a very small part. Just wanted to clarify this up front, to avoid any objections that most of the post is "off topic."}

Today's column requires a preface, because once again I am forgoing my usual Friday format to fully address the importance of the impeachment trial. Regular columns will resume next week, right before the next Democratic debate airs, and we'll return to our usual awards and talking points then. I thank my readers for their patience, in advance.

Other program notes for next week: Monday's column will be my first prediction of the outcome of a primary race in the 2020 election season, and will be published before the Iowa caucuses finish. Tuesday's column will be late, as I'll be writing my snap reactions to both the State Of The Union speech and the Democratic response. Normally I would also write my snap reactions to the Democratic debate as well, but because it falls on a Friday (and because this column has already taken two weeks off) I won't be doing so this time around. There will be a total of three debates in February (before New Hampshire, Nevada, and South Carolina vote) so we'll have other opportunities for debate analysis before Super Tuesday rolls around.

Oh, and for those who like fun calendar tricks, this Super Bowl Sunday will be an interesting palindrome: 02/02/2020. Even more fun: this will be true worldwide, since Americans are pretty much the only ones who put the month before the day in our date format, but in this case it won't matter.

OK, with all of that out of the way, let's get right to my reactions, impressions, and other thoughts about the history that is being made in the Senate today.



The impeachment endgame

As of this writing, nothing has been officially decided yet in the Senate impeachment trial. However, one thing seems almost certain at this point: there will only be 49 votes, maximum, in favor of calling witnesses. Both Lisa Murkowski and Lamar Alexander have announced that they will not be voting for witnesses, which leaves all 47 Democrats together with only Mitt Romney and Susan Collins. Murkowski may have been persuaded to vote no because if she had voted yes it would have set up an uncomfortable situation for Chief Justice Roberts, who would have to decide whether to break a 50-50 tie or not (with the safe money being on "not" ). In any case, that's how things stand as I begin writing this.

Surprisingly, however, another consensus seems to be emerging, that of delaying the end of the trial until next Wednesday. This idea, bizarrely, is reported to have come from the White House. I say "bizarrely" because doing so would deny President Trump an acquittal vote before he is scheduled to give his State Of The Union speech next Tuesday night. Also bizarre is the fact that the White House is now signaling that Trump will not even mention impeachment in his speech. Now, this could all be a feint, because there's always the "Who knows what Trump will say" factor. But that's what they're signaling at the moment, for whatever it's worth.

The proposal gives Democrats several things they want, including breaking for the entire weekend -- which would allow the four senators still in the running for the Democratic presidential nomination the time to do a last-minute blitz in Iowa right before they hold their caucuses. It would also deny Trump an opportunity to "spike the football" in his biggest speech of the year. And yet this proposal is supposedly coming from the White House. It doesn't make a whole lot of political sense, but that's what is being reported.

Whenever they wrap things up, though, the outcome seems just as preordained now as it has all along -- the Senate will vote largely on party lines to allow Donald Trump to remain president. No witnesses will be heard from in the Senate, and no subpoenas for any documents will be issued. The third impeachment of a United States president will thus end the same as the first two presidential impeachments, as largely a partisan exercise that changes nothing but leaves an indelible stain on the president's legacy.

Since the trial started last week, we've seen many hours of back and forth between the House managers and the president's counsel. Some of it was sober and serious, and some of it was heated and contentious. That was to be expected, of course. The most illuminating part was the question period, where senators got to pose questions to one side or the other (or both). This mostly consisted of softballs lobbed to their own side of the aisle, but occasionally there were some thought-provoking questions and answers alike.

But none of it changed anything, really. The end result is going to be the same, after days upon days of making the cases both for and against removing President Trump. As indeed happened with Bill Clinton's impeachment trial.

What does it all mean? Well, that is a question that will continue to reverberate for some time to come, in at least two significant ways. The first will be exactly what the House managers are now predicting: more information is going to come to light. John Bolton's book is soon going to be released, and he'll likely make the rounds of television interviews to promote it. He'll be able to fill in a lot of details that weren't previously known, which will undoubtedly (if what's leaked already is any indication) make Trump and his cronies look even worse than they already do. And Bolton's not the only source of future revelations, either -- sooner or later the record will be complete, whether it happens in the next few months or whether we'll have to wait until the full paper trail is revealed to the public years later (under the next Democratic president, say). These revelations will likely not be limited to just what Trump did with Ukraine, but also plenty of other disturbing actions that have so far been kept secret.

The second big impact this impeachment will have is going to come in all the second-guessing about how Nancy Pelosi handled things in the House. It is pretty obvious that the system itself is broken, because she was faced with an almost-impossible choice. She could have attempted to fight Trump's stonewalling in the courts, but that would have taken approximately forever. The slowness of the court system means that impeaching a president may become almost an impossibility unless the president serves two terms, in fact. Tying things up in the courts can now so effectively run out the clock that any president will be able to get away with just about anything -- as long as they follow Trump's path of absolute refusal to cooperate with any document or witness requests or subpoenas at all, and of filing such a snowstorm of motions and objections that will all be appealed all the way up to the Supreme Court. This virtually guarantees that the "run out the clock" strategy will succeed, at least for a single term. Think about it -- if Pelosi had taken the route of fighting in the courts, then by the time anything was ultimately decided, Trump may have started his second term in office, or been voted out.

There has to be a way to speed this up, obviously, if the power of impeachment is going to mean anything in the future. Perhaps all cases pertaining to presidential impeachment should be filed directly in the Supreme Court itself, rather than having to first work through all the other levels of the judiciary? Everyone knows these matters will be endlessly appealed, so why not avoid all the meaningless preparatory rulings and judgments and just move straight to the nine people who will have to make the ultimate decisions anyway? Just as impeachment automatically shoves everything in the Senate aside, it should also follow an expedited path through the court system as well. The Supreme Court can move quickly when circumstances require -- as indeed it did in Bush v. Gore. If it can move that fast when the results of an election are undecided, then it should move equally as fast when the question is the impeachment of a sitting president. The length of the legal process should not be able to be used as such an effective political delaying tactic in the future, but it would take either Congress passing a law or even a constitutional amendment in order to change this.

Given all that she knew, it's understandable why Pelosi acted as she did, of course. Pelosi knew two fundamental things going into the impeachment process: (1) the courts would take forever to rule on each and every tiny little legal squabble, and (2) the Senate was almost certainly not going to remove a sitting Republican president less than a year before the next election. Pelosi faced the choice of either making the entire presidential campaign about all the ins and outs of the impeachment process in the courts (because it definitely would have consumed the political world while it was playing out), or moving quickly to impeach, knowing how the Senate was going to ultimately vote. She chose the latter, but this choice will be the subject of endless Monday-morning quarterbacking for many years to come. Should she have pressed for John Bolton to testify? If she had won, would what Bolton was going to say have changed anything? There are dozens of ways it all could have played out, obviously, and each and every one of them will be rehashed in the future.

Pelosi, of course, didn't want to impeach Trump in the first place. She had to be reluctantly dragged in after many months of fending off impeachment cries from within her caucus. Trump's behavior in the Ukraine phone call was so egregious and the whistleblower's complaint could not be ignored, so she was finally convinced to pull the impeachment trigger. But in doing so, she tried to keep the effort as tightly focused as possible -- which is another decision that will be endlessly second-guessed. Should Democrats have "thrown the book" at Trump by including articles of impeachment for every bit of wrongdoing Trump has racked up? (Just one example: "Article XXXIV: The president broke federal law [18 U.S. Code 2074] by 'knowingly issuing a counterfeit weather forecast or warning of weather conditions falsely representing such forecast which was published by a branch of the federal government,' and thus must be impeached for this crime." ) Would that have led to a more successful and comprehensive airing of Trump's wrongdoing in both the House and Senate? Would it have changed anyone's mind, or would the end result have been the same? These are now just theoretical questions, since Pelosi chose not to take this route.

Pelosi made her decision and set the timetable, although she may have erred (this remains to be seen) in issuing the invitation for the State Of The Union speech so late -- Pelosi had full control over this date, and could easily have picked one in mid-January which would have precluded Trump from using it as a victory speech. Is this the real reason she delayed officially sending over the articles of impeachment to Mitch McConnell? Again, this is now something for the Monday-morning quarterbacks to discuss. For better or for worse, Pelosi chose the route she did and nothing now is going to change it.

One interesting thing that happened during the whole impeachment process is that it has actually spurred both Democrats and Republicans -- and, especially, Trump himself -- to give the appearance to the public of getting lots of things done in the meantime. Both sides wanted to portray themselves as working diligently while the impeachment process played out, which resulted in the passage and signing of a new trade agreement with Mexico and Canada, among other things. Politically, neither side wanted to give the appearance of being paralyzed by impeachment. Whether this means anything to the public or not is unknowable, but both sides did an adequate job of making that political case.

The full political impact of the impeachment of a sitting president won't be known fully until Election Day, most likely. At this point, it's anyone's guess how it will affect voters. Will this motivate Trump's base more than they already are, or will it further disgust previously staunch GOP strongholds like the suburbs? Will senators who vote either for or against witnesses wind up paying a political price for their vote? That might depend on what trickles out later, in Bolton's book and beyond. If the case that Trump abused the power of his office just gets stronger and stronger over time, then the vote to refuse to hear from witnesses may look worse and worse.

Impeachment may have the smallest political effect on the Democratic nomination race, though. Pretty much all Democrats -- including all the presidential candidates -- share exactly the same stance: Trump was guilty, impeachment was the sworn duty of House Democrats, and Trump must be beat in November. There's no daylight between any one candidate and any other on this, which means it is pretty irrelevant to the nomination process and the voters. The one candidate who might have benefited politically -- Tom Steyer, who spent millions of his own money trying to convince the country that impeachment was necessary -- doesn't seem to have gotten any boost as a result. Whether you agree with the decision or not, Pelosi's short timeline has indeed pretty much removed the issue from the entire primary season.

How big an issue will it be in the general election? Well, Trump himself is likely to continue complaining how unfairly he's been treated by Democrats, but he would quite likely have been making this argument anyway. Now he'll be able to whine about his impeachment instead of just all the congressional investigations and the Mueller Report, but will that really move the needle at all with the public? His staunch supporters already bought into Trump playing the victim card, and those who felt Trump brought it upon himself are also not likely to change their minds now.

If impeachment was already baked into the political cake anyway, then Pelosi's short timeline may look much better in retrospect. If nobody's changed their minds over the past week, then it is quite likely few would have changed their minds if this process had dragged on into the summer.

Democratic voters are already laser-focused on two clear goals: defeating Trump and taking back the Senate. If the impeachment isn't likely to change much in the presidential election, could it have a bigger impact on individual Senate races? This is possible, but far from guaranteed. Susan Collins was in trouble already, and no matter which way she voted she was going to annoy lots of Maine voters. Even without such a vote and without impeachment, she still would have been in just as dire political circumstances (she recently surpassed Mitch McConnell as the senator with the lowest job approval rating back in her home state, in fact). Lamar Alexander is retiring, so his vote isn't going to hurt him politically in any way (except possibly in his political legacy). Lisa Murkowski and Mitt Romney aren't likely to pay any price at all, because both Alaska and Utah are quite likely to send them back to the Senate anyway.

Democrats will indeed try to make some political hay over some of the GOP senators who voted against witnesses, and this could become even more prominent as more details emerge (from Bolton or from other sources). All of the vulnerable Republican senators except Collins will have to defend their vote to deny witnesses, and Democrats will be running ads reminding the voters of this all throughout the election season. This is where the impeachment process -- even though it failed to remove Trump -- may benefit Democrats in a big way. There is a good case to be made, since already anywhere from two-thirds to three-fourths of the public supported calling witnesses in the trial. If the Senate trial is seen as a coverup by the public, then the voting record may become a liability for enough senators to actually flip control of the chamber. If a Democrat is elected president, they'll only need to flip three seats, and there are plenty of targets to do so already (Iowa, Arizona, North Carolina, Colorado, most prominently, as well as Maine). Whether this will now be easier is still an open question, but it's a certainty that Democrats are going to try to make the argument in plenty of campaign ads.

The final thing worth discussing is the precedents being set. I wrote about this last week, but these precedents are important enough to restate once again. First and foremost, Donald Trump is going to consider the Senate vote "total exoneration," which means that he will have no constraints upon him for the entire rest of the year. The Senate will be stamping its approval on forcing a foreign government to dig up dirt on political opponents, and Trump will see this as a big green light to continue doing so even more openly than he has already. After all, if he's not going to pay any price, why not?

But it goes beyond the circumstances of the impeachment case, because Trump will now be left almost totally unrestrained. He has pushed out all of the so-called "adults in the room" on his cabinet and White House staff, which has left nothing but yes-men in their place. Nobody's going to even attempt telling Trump he can't do something he wants to do now, because he now has no reason whatsoever to listen to them. The Democrats will be equally powerless to stop his most outrageous impulses from becoming reality, because it would take something like Trump shooting someone on live television for the House Democrats to even contemplate a second impeachment. That means from now until (at least) next January, Trump will be free to do whatever he wants to, which is a scary thought indeed.

Trump has also set the most alarming precedent of all, because his strategy of throwing up a total stonewall -- refusing to provide any documents or witnesses -- has now effectively worked. There are other congressional investigations into Trump, but he won't be cooperating with any of them, period. This may be true even if the courts rule otherwise. That's a frightening thought, but it must be addressed. The executive and judicial branches are theoretically supposed to be co-equal, which means that the president could decide that the courts simply have no jurisdiction over him at all. Even if the Supreme Court rules that Trump must hand over evidence (his tax returns, testimony from aides, whatever), Trump might just ignore such a ruling and refuse to comply. It has happened before, and Trump now knows that a second impeachment simply is not going to happen, so what's to stop him from just defying a court order -- even from the Supreme Court?

Even if it doesn't come to that, Trump's total stonewall strategy is almost certainly going to be adopted by some future president. Why should they turn over possibly-incriminating documents and witnesses when they can just stonewall and drag things out in the courts so long that any attempted congressional investigation just grinds to a halt? There's an obvious benefit to doing so, as Trump has just proven. Congressional oversight not only of the president but also of the entire executive branch may soon become a thing of the past, as a direct result. Of course, it will be amusing for Democrats the first time a Democratic president pulls this trick on a hostile Republican Congress, but beyond partisanship this could have the most important consequences of any of the precedents now being set. If Trump can get away with claiming blanket immunity then other presidents will definitely follow suit.

We all tend to think of Trump as existing in a vacuum. "Things'll be different when Trump's gone," we reassure ourselves. But this isn't true. Trump getting away with these things means future presidents will also be able to get away with the same things -- or even worse. Personally, I don't trust future Republican presidents or Democratic presidents not to draw this obvious conclusion. "It was good enough for Trump, so now you have to live with it" is going to be an overwhelmingly tempting impulse no matter who is sitting in the Oval Office. The Senate has now (I just checked, and while writing this they did vote as expected, 49-51, on the question of calling witnesses) not only allowed Trump to avoid being held accountable, they have also put their imprimatur on any future president who decides to emulate Trump. That is why this impeachment matters so much. That is what the Senate is creating -- a whole new world of opportunities for any president to essentially ignore any law he or she feels like ignoring, and to likewise ignore any Congress attempting to investigate her or him.

In other words, welcome to the new normal.




Chris Weigant blogs at: ChrisWeigant.com
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