One journalist remarked to me, “How in the world can these senators walk around here upright when they have no backbone?”
Not guilty. Not guilty.
In the United States Senate, like in many spheres of life, fear does the business.
Think back to the fall of 2002, just a few weeks before that year’s crucial midterm elections, when the Authorization for Use of Military Force Against Iraq was up for a vote. A year after the 9/11 attacks, hundreds of members of the House and the Senate were about to face the voters of a country still traumatized by terrorism.
Senator Patty Murray, a thoughtful Democrat from Washington State, still remembers “the fear that dominated the Senate leading up to the Iraq war.”
“You could feel it then,” she told me, “and you can feel that fear now” — chiefly among Senate Republicans.
For those of us who, from the start, questioned the wisdom of the Iraq war, our sense of isolation surely wasn’t much different from the loneliness felt in the 1950s by Senator Herbert Lehman of New York, who confronted Joe McCarthy’s demagogy only to be abandoned by so many of his colleagues. Nor was it so different from what Senator George McGovern must have felt when he announced his early opposition to the Vietnam War and was then labeled a traitor by many inside and outside of Congress.
History has indeed taught us that when it comes to the instincts that drive us, fear has no rival. As the lead House impeachment manager, Representative Adam Schiff, has noted, Robert Kennedy spoke of how “moral courage is a rarer commodity than bravery in battle.”
Playing on that fear, the Senate majority leader, Mitch McConnell, sought a quick impeachment trial for President Trump with as little attention to it as possible. Reporters, who usually roam the Capitol freely, have been cordoned off like cattle in select areas. Mr. McConnell ordered limited camera views in the Senate chamber so only presenters — not absent senators — could be spotted.
And barely a peep from Republican lawmakers.
One journalist remarked to me, “How in the world can these senators walk around here upright when they have no backbone?”
Fear has a way of bending us.
Late in the evening on day four of the trial I saw it, just 10 feet across the aisle from my seat at Desk 88, when Mr. Schiff told the Senate: “CBS News reported last night that a Trump confidant said that Republican senators were warned, ‘Vote against the president and your head will be on a pike.’” The response from Republicans was immediate and furious. Several groaned and protested and muttered, “Not true.” But pike or no pike, Mr. Schiff had clearly struck a nerve. (In the words of Lizzo: truth hurts.)
Of course, the Republican senators who have covered for Mr. Trump love what he delivers for them. But Vice President Mike Pence would give them the same judges, the same tax cuts, the same attacks on workers’ rights and the environment. So that’s not really the reason for their united chorus of “not guilty.”
For the stay-in-office-at-all-cost representatives and senators, fear is the motivator. They are afraid that Mr. Trump might give them a nickname like “Low Energy Jeb” and “Lyin’ Ted,” or that he might tweet about their disloyalty. Or — worst of all — that he might come to their state to campaign against them in the Republican primary. They worry:
“Will the hosts on Fox attack me?”
“Will the mouthpieces on talk radio go after me?”
“Will the Twitter trolls turn their followers against me?”
My colleagues know they all just might. There’s an old Russian proverb: The tallest blade of grass is the first cut by the scythe. In private, many of my colleagues agree that
- the president is reckless and unfit. They
- admit his lies. And they
- acknowledge what he did was wrong. They know
- this president has done things Richard Nixon never did. And they know that
- more damning evidence is likely to come out.
So watching the mental contortions they perform to justify their votes is painful to behold: They claim that calling witnesses would have meant a never-ending trial. They tell us they’ve made up their minds, so why would we need new evidence? They say to convict this president now would lead to the impeachment of every future president — as if every president will try to sell our national security to the highest bidder.
I have asked some of them, “If the Senate votes to acquit, what will you do to keep this president from getting worse?” Their responses have been shrugs and sheepish looks.
They stop short of explicitly saying that they are afraid. We all want to think that we always stand up for right and fight against wrong. But history does not look kindly on politicians who cannot fathom a fate worse than losing an upcoming election. They might claim fealty to their cause — those tax cuts — but often it’s a simple attachment to power that keeps them captured.
As Senator Murray said on the Senate floor in 2002, “We can act out of fear” or “we can stick to our principles.” Unfortunately, in this Senate, fear has had its way. In November, the American people will have theirs.
“The evidence of his impeachable behavior at this point, in my view, is overwhelming,” says Fox News analyst.
“The Democrats on the House Intelligence Committee have unearthed enough evidence, in my opinion, to justify about three or four articles of impeachment against the president,” Fox News analyst Andrew Napolitano tells Reason in a wide-ranging interview. The allegations are not “enough to convict [the president] of bribery” in a court of law, Napolitano says, “but it’s enough to allege it for the purpose of impeachment” since impeachment is “not legal [but] political.” The former New Jersey Superior Court judge adds that while he thinks impeachment is “absolutely constitutional,” it is also “probably morally unjust.” Besides bribery, he lays out four more likely articles that he thinks House Democrats will bring against Trump. “The second charge will be high crimes and misdemeanors, election law violation,” says Napolitano. “The third crime will be obstruction of justice. The fourth will be interference with a witness and the fifth may be lying under oath.” “The evidence of his impeachable behavior at this point, in my view, is overwhelming,” he adds. In two decades at the nation’s largest cable network, Napolitano has provided an unapologetically libertarian critique of state power regardless of the party holding control in the nation’s capital. In the past several months, he has emerged as one of Trump’s harshest critics, claiming back in May that the Mueller Report demonstrated that the president had clearly obstructed justice. Though he thinks the recent House hearings provide grounds for impeachment, the judge finds it unlikely that the Republican-controlled Senate will vote to remove the president—and that the bigger problem is the way federal government continues to arrogate power to itself. “No American president in the post–Woodrow Wilson era has stayed within the confines of the Constitution,” says Napolitano. “And each president has more authority than his predecessors, for the simple reason that Democratic Congresses give power to Democratic presidents and Republican Congresses give power to Republican presidents. That power stays in the presidency. So Donald Trump actually has more authority than Barack Obama did, who had more authority than George W. Bush did, etc.” Napolitano argues that the federal government stays in power by “bribing” states and individuals with giveaways. The result, he says, is unsustainable debt that will ultimately undermine the economy and with it, social order. “The decline of certain types of cultural gatekeepers that said no [to] certain lifestyles obviously is liberating,” notes Napolitano. “But the same technology which lets me put the works of Thomas Aquinas in my pocket also lets the government follow me wherever I go and record whatever conversation I have with Gillespie or whoever I’m talking to, the Constitution be damned.”
Stop distracting from the core issue, elite negligence and national decline.
Is it possible that more than 20 Republican senators will vote to convict Donald Trump of articles of impeachment? When you hang around Washington you get the sense that it could happen.
The evidence against Trump is overwhelming. This Ukraine quid pro quo wasn’t just a single reckless phone call. It was a multiprong several-month campaign to use the levers of American power to destroy a political rival.
Republican legislators are being bludgeoned with this truth in testimony after testimony. They know in their hearts that Trump is guilty of impeachable offenses. It’s evident in the way they stare glumly at their desks during hearings; the way they flee reporters seeking comment; the way they slag the White House off the record. It’ll be hard for them to vote to acquit if they can’t even come up with a non-ludicrous rationale.
And yet when you get outside Washington it’s hard to imagine more than one or two G.O.P. senators voting to convict.
In the first place, Democrats have not won widespread public support. Nancy Pelosi always said impeachment works only if there’s a bipartisan groundswell, and so far there is not. Trump’s job approval numbers have been largely unaffected by the impeachment inquiry. Support for impeachment breaks down on conventional pro-Trump/anti-Trump lines. Roughly 90 percent of Republican voters oppose it. Republican senators will never vote to convict in the face of that.
Second, Democrats have not won over the most important voters — moderates in swing states. A New York Times/Siena College survey of voters in Arizona, Florida, Michigan, North Carolina, Pennsylvania and Wisconsin found that just 43 percent want to impeach and remove Trump from office, while 53 percent do not. Pushing impeachment makes Democrats vulnerable in precisely the states they cannot afford to lose in 2020.
Third, there is little prospect these numbers will turn around, even after a series of high-profile hearings.
I’ve been traveling pretty constantly since this impeachment thing got going. I’ve been to a bunch of blue states and a bunch of red states (including Kansas, Missouri, North Carolina, Tennessee, Texas and Utah). In coastal blue states, impeachment comes up in conversation all the time. In red states, it never comes up; ask people in red states if they’ve been talking about it with their friends, they shrug and reply no, not really.
Prof. Paul Sracic of Youngstown State University in Ohio told Ken Stern from Vanity Fair that when he asked his class of 80 students if they’d heard any conversation about impeachment, only two said they had. When he asked if impeachment interested them, all 80 said it did not.
That’s exactly what I’ve found, too. For most, impeachment is not a priority. It’s a dull background noise — people in Washington and the national media doing the nonsense they always do. A pollster can ask Americans if they support impeachment, and some yes or no answer will be given, but the fundamental reality is that many Americans are indifferent.
Fourth, it’s a lot harder to do impeachment in an age of cynicism, exhaustion and distrust. During Watergate, voters trusted federal institutions and granted the impeachment process a measure of legitimacy. Today’s voters do not share that trust and will not regard an intra-Washington process as legitimate.
Many Americans don’t care about impeachment because they take it as a given that this is the kind of corruption that politicians of all stripes have been doing all along. Many don’t care because it looks like the same partisan warfare that’s been going on forever, just with a different name.
Fifth, it’s harder to do impeachment when politics is seen as an existential war for the future of the country. Many Republicans know Trump is guilty, but they can’t afford to hand power to Nancy Pelosi, Elizabeth Warren or Bernie Sanders.
Progressives, let me ask you a question: If Trump-style Republicans were trying to impeach a President Biden, Warren or Sanders, and there was evidence of guilt, would you vote to convict? Answer honestly.
I get that Democrats feel they have to proceed with impeachment to protect the Constitution and the rule of law. But there is little chance they will come close to ousting the president. So I hope they set a Thanksgiving deadline. Play the impeachment card through November, have the House vote and then move on to other things. The Senate can quickly dispose of the matter and Democratic candidates can make their best pitches for denying Trump re-election.
Elizabeth Bruenig of The Washington Post put her finger on something important in a recent essay on Trump’s evangelical voters: the assumption of decline. Many Trump voters take it as a matter of course that for the rest of their lives things are going to get worse for them — economically, spiritually, politically and culturally. They are not the only voters who think this way. Many young voters in their OK Boomer T-shirts feel exactly the same, except about climate change, employment prospects and debt.
This sense of elite negligence in the face of national decline is the core issue right now. Impeachment is a distraction from that. As quickly as possible, it’s time to move on.
President Trump’s newest defense to the Ukraine plot blames his own employee Rick Perry, claiming he ‘made him’ look into the Bidens. Mother Jones’ David Corn argues the Rick Perry defense is Trump’s latest attempt at throwing ‘the ball of confusion,’ adding there is ‘not a complete through-line’ in Trump’s defenses because he is attempting to make the situation ‘incomprehensible.’
With rules, rigor and resolution.
The House of Representatives has undertaken the impeachment inquiry of a president only four times in American history. Each time, the House has set its own ground rules. The Constitution prescribes no specific process, nor does federal law. Court rulings and precedents, such as they are, tend to be narrow and particular. So when lawmakers determine that such a proceeding is warranted, they are forced to rely on their own cobbled-together rule book, with the trust of the American people in their government at stake.
This requires Congress to be rigorous in setting out the rules for conducting an inquiry. It also makes the impeachment process vulnerable to misrepresentation and caricature, as President Trump and his White House demonstrated on Tuesday. According to an astonishing letter from the Trump administration to House Democrats, it is right for the president of the United States to use his immense power to solicit a foreign government’s interference on his behalf in an election — even, possibly, by way of extortion. At the same time, the letter argued, it is illegitimate for Congress, a coequal branch of government, to undertake any investigation into the president or members of his administration (or diplomats, personal lawyers and hangers-on) regarding this behavior.
The letter is a formal assertion of executive power and impunity without precedent in American history. Or, as a former Republican Senate staff member wrote on Twitter: “Wow. This letter is bananas.”
Take the first claim first, that there is nothing wrong with Mr. Trump shaking down a foreign leader for his own political benefit. Perhaps that’s the only position the White House can take, because the facts of the July 25 call are not in dispute. The administration’s own written summary of the conversation reveals that Mr. Trump pressured Volodymyr Zelensky, the Ukrainian president, to investigate former Vice President Joe Biden, a top political rival, and his son Hunter for supposed corruption. At the time of the call, Mr. Trump was withholding nearly $400 million in promised military aid to Ukraine — a topic that was alluded to in connection to his requests that Mr. Zelensky “do us a favor.”
White House lawyers also appeared to have understood how damning the call was and scrambled to keep it hidden by stashing its record in a highly-classified computer system reserved for the most secret national-security communications.
This is why the White House is trying to divert attention away from the substance of Mr. Trump’s actions and toward smaller-bore procedural fights. It wants to confuse the public and delay any final judgment by Congress.
Which brings us to the second claim in the White House’s letter, that the impeachment inquiry is itself illegitimate — “baseless, unconstitutional efforts to overturn the democratic process,” in the words of Pat Cipollone, the White House counsel — and that therefore the president is justified in not cooperating with Congress in any way.
Mr. Cipollone raised three main challenges to the inquiry: It was not authorized by a vote of the full House of Representatives; the Democratic leadership has not provided Mr. Trump with any due-process protections; and House Republicans have not been given the power to issue subpoenas of their own.
It’s worth addressing each of these challenges in turn.
First, there is nothing magical about a House vote authorizing an impeachment inquiry. The administration’s letter calls it a “necessary authorization,” but that’s simply false. A vote isn’t required by the Constitution, federal law or the rules of the House of Representatives. The White House is basing its demands for a vote solely on the fact that a similar vote was held by the House during the impeachment proceedings for Presidents Richard Nixon and Bill Clinton. But in those cases, the votes were necessary to equip the inquiries with additional investigative authority, such as expanded subpoena power; subsequent changes to House rules make that step unnecessary.
From the Democrats’ perspective, there are several reasons not to hold a full floor vote. Most significant, Speaker Nancy Pelosi wants to avoid a situation in which the House leadership is conceding that the White House can dictate any of the terms of how an impeachment is conducted, and what sort of process counts as “legitimate.” Once the House makes that concession, the White House will again move the goal posts, undermining Congress’s role as a coequal branch with the authority to manage its impeachment inquiry.
Ms. Pelosi also wants to protect Democratic members who represent more conservative districts from having to take a difficult vote that might come back to haunt them in 2020. This isn’t a very compelling rationale, especially when those same members will almost surely be called upon to vote on articles of impeachment soon enough.
Finally, Ms. Pelosi knows that Mr. Trump has no intention of cooperating with an impeachment inquiry, even if it were authorized by a vote. Instead, he would use what would likely be a party-line vote to further disparage the inquiry as a partisan hit job.
On Wednesday, Mr. Trump was asked whether he would cooperate if the House held a vote authorizing the impeachment inquiry. “Yeah, that sounds O.K.,” the president said. “We would if they give us our rights.” Of course, Mr. Trump also said he would be happy to speak under oath with the special counsel, Robert Mueller.
And yet it may be a mistake for the Democrats to proceed much further without an authorization by the House. For one thing, a vote would strengthen Congress’s hand in any litigation arising out of the inquiry. A federal judge in Washington, Beryl Howell, said on Tuesday that having such a vote on record would make it “easier” for her to step in and make a ruling on House demands for documents or testimony.
Second, a resolution in support of the inquiry could also lay out specific ground rules, which could enhance the legitimacy of the inquiry in the minds of Americans.
Clearer, unified ground rules for this inquiry could address the other two main complaints in the White House’s letter: a lack of due process or subpoena power for the Republicans in the minority.
Mr. Cipollone has demanded, for starters, “the right to see all evidence, to present evidence, to call witnesses, to have counsel present at all hearings, to cross-examine all witnesses, to make objections relating to the examination of witnesses or the admissibility of testimony and evidence, and to respond to evidence and testimony.”
First, just to get it out of the way: This flamboyant concern with due process and precedent is a distraction, an attempt to shift attention away from Mr. Trump’s gross misbehavior and to promote his divisive fantasy that he is the victim of a coup attempt. It would be naïve to believe for a second that, if the House addresses every one of the White House’s stated objections, then the president’s team will endorse this inquiry as legitimate. This administration’s record of contempt toward congressional oversight speaks for itself.
More to the point, none of these protections are legally or constitutionally required. Due process protections like these are provided at criminal trials, where a defendant could be convicted and sent to prison. Mr. Trump is not facing that in the House. To the extent that an impeachment can be analogized to a judicial proceeding, the House operates like a grand jury deciding whether to hand up an indictment to the Senate, which then holds a trial. Grand juries are not required to provide due process.
Still, there are good reasons to grant Mr. Trump certain procedural protections at this stage. For one thing, as Mr. Cipollone’s letter correctly notes, House Democrats gave President Nixon some of these protections during their impeachment inquiry in 1974, as did House Republicans with President Clinton in 1998. In that latter inquiry, House Republicans also gave Democrats in the minority some authority to issue subpoenas.
The bottom line is that Democrats need to honor basic fairness and conduct a thorough inquiry, but they also need to set hard limits on how much time they are willing to spend on any given negotiation or debate or vote. They are engaged in an asymmetrical struggle with a White House that has shown itself willing to set fire to the Constitution to protect Mr. Trump from the consequences of his own misbehavior.
Three (provisional) reasons not to put the president on trial.
You could argue that the month of January has very modestly raised the odds that Donald Trump will not finish his term as president.
First, the government shutdown has demonstrated that Trump’s own incompetence suffices to cost him support in the polls and in the Senate — an indication that a larger crumbling of his political firewall might be possible.
Second, the indictment of Roger Stone, based on his lies to Congress about outreach to WikiLeaks, keeps open the possibility of future revelations of conspiracy implicating Trump himself.
Finally, there has been a burst of media interest in impeachment — an Atlantic cover story by Yoni Appelbaum prodding Democrats to take the plunge, and a more cautious essay by my colleague David Leonhardt putting the option on the table.
I’m open to these arguments; indeed, I have to be, since I’m on the record urging this president’s removal from office using the unusual remedy of the 25th Amendment. But there are several difficulties with the current briefs for impeachment, which suffice for now to keep a Pence presidency out of reach.
The first is the gulf between the democracy-subverting powers that the briefs ascribe to Trump and the actual extent of his influence. In Appelbaum’s essay, the president is charged with nothing less than having “trampled” on “the liberties guaranteed by the Constitution.” But many of his examples feature Trump failing to actually trample anything. He “did his best” to enact a Muslim travel ban (the actual ban was limited and upheld by the Supreme Court), he has “called for” the firing of political enemies (with little discernible result), he has made “efforts” to impede the Mueller investigation (which continues apace), and so on down the list of outrages that exist primarily on his Twitter feed.
Much of the case for “trampling,” then, is a case against Trump’s rhetoric. And one can acknowledge that rhetoric’s evils while doubting that the ranting of a president so hemmed in, unpopular and weak is meaningfully threatening the Constitution.
..Especially because of the second problem with the case for impeachment, which might be summed up in a line from a poem that Trump often quoted in 2016: You knew damn well I was a snake before you took me in.Meaning, in this case, that little about his rhetorical excess, his penchant for lies and insults or the seaminess of his courtiers was hidden from voters on the campaign trail in 2016, in an election that by the Constitution’s standards Trump legitimately won.
The electorate’s foreknowledge of a politician’s sleaziness doesn’t preclude impeachment. But it means that there is, at least, a quantum of sleaze that the president’s supporters voted to accept. And the closer we get to a new election — including another primary campaign — the stronger the case for asking voters to retract that endorsement, instead of pre-empting their judgment from on high... Appelbaum, for instance, analogizes Trump’s race-baiting to Andrew Johnson’s efforts to impede Reconstruction in the late-1860s South. But when he was impeached, Johnson was literally using his veto to abet the possible restoration of white supremacy. Whereas Trump is conspicuously losing a fight over some modest border fencing, and his last race-inflected policy move was … a criminal justice reform supported by many African-Americans. The president may be a bigot, but the policy stakes do not remotely resemble 1868.
Then there are the geopolitical risks of Trump’s alleged Russian loyalties. After the Stone arrest, Appelbaum’s Atlantic colleague David Frum deemed these too severe to wait even for Robert Mueller’s verdict: “But now — now! — the country is in danger.”
But in the absence of Mueller-stamped evidence, what we have to prove that peril is Trump’s actual foreign policy, which is erratic but frequently quite unfriendly to Moscow — with the administration’s effort to subvert the Russian-aligned Maduro regime in Venezuela just this week’s example.
Which makes it entirely reasonable to wait to see whether Mueller vindicates the various uncorroborated scoops about a conspiracy hatched in Prague or the Ecuadorean Embassy, rather than trying to impeach Trump for, say, his private griping about NATO.
At the end of my invoke-the-25th-Amendment column I wrote, “There will be time to return again to world-weariness and cynicism as this agony drags on.” That was month four of this presidency; as we approach month 25 I suppose I have become that world-weary cynic.