The Impeachment Needle May Soon Move

The mood has shifted against Trump, but the House has to show good faith and seriousness.

Things are more fluid than they seem. That’s my impression of Washington right now. There’s something quiet going on, a mood shift.

Impeachment of course will happen. The House will support whatever charges are ultimately introduced because most Democrats think the president is not fully sane and at least somewhat criminal. Also they’re Democrats and he’s a Republican. The charges will involve some level of foreign-policy malfeasance.

The ultimate outcome depends on the Senate. It takes 67 votes to convict. Republicans control the Senate 53-47, and it is unlikely 20 of them will agree to remove a president of their own party. An acquittal is likely but not fated, because we live in the age of the unexpected.

Here are three reasons to think the situation is more fluid than we realize.

First, the president, confident of acquittal, has chosen this moment to let his inner crazy flourish daily and dramatically—the fights and meltdowns, the insults, the Erdogan letter. Just when the president needs to be enacting a certain stability he enacts its opposite. It is possible he doesn’t appreciate the jeopardy he’s in with impeachment bearing down; it is possible he knows and what behavioral discipline he has is wearing down.

The second is that the Republican leader of the Senate, Mitch McConnell, told his caucus this week to be prepared for a trial that will go six days a week and could last six to eight weeks. In September there had been talk the Senate might receive articles of impeachment and execute a quick, brief response—a short trial, or maybe a motion to dismiss. Mr. McConnell told CNBC then that the Senate would have “no choice” but to take up impeachment, but “how long you are on it is a different matter.” Now he sees the need for a major and lengthy undertaking. Part of the reason would be practical: He is blunting attack lines that the Republicans arrogantly refused to give impeachment the time it deserves. But his decision also gives room for the unexpected—big and serious charges that sweep public opinion and change senators’ votes. “There is a mood change in terms of how much they can tolerate,” said a former high Senate staffer. Senators never know day to day how bad things will get.

The third reason is the number of foreign-policy professionals who are not ducking testimony in the House but plan to testify or have already. Suppressed opposition to President Trump among foreign-service officers and others is busting out.

The president is daily eroding his position. His Syria decision was followed by wholly predictable tragedy; it may or may not have been eased by the announcement Thursday of a five-day cease-fire. Before that the House voted 354-60, including 129 Republicans, to rebuke the president. There was the crazy letter to Turkish President Recep Tayyip Erdogan, which was alternately pleading (“You can make a great deal. . . . I will call you later”) and threatening (“I don’t want to be responsible for destroying the Turkish economy—and I will”).

There was the Cabinet Room meeting with congressional leaders, the insults hurled and the wildness of the photo that said it all—the angry president; Nancy Pelosi, the speaker of the House, standing and pointing at him; and the head of Gen. Mark Milley, the new chairman of the Joint Chiefs of Staff, bowed in—embarrassment? Horror? His was not the only bowed head.

The president soon tweeted about a constitutional officer of the U.S. House, who is third in line for the presidency: “Nancy Pelosi needs help fast! There is either something wrong with her ‘upstairs’ or she just plain doesn’t like our great Country. She had a total meltdown in the White House today. It was very sad to watch. Pray for her, she is a very sick person!”

As the Democratic leaders departed, he reportedly called out, “See you at the polls.” Mr. Trump is confident that he holds the cards here—he’s got the Senate, and the base of the party says all these issues should be worked out in the 2020 election. But he is seriously weakening his hand by how he acts.

That meeting will only fortify Mrs. Pelosi’s determination to impeach him.

The president tweeted out the picture of that meeting just as the White House made public the Erdogan letter—because they think it made the president look good. Which underscored the sense that he has no heavyweight advisers around him—the generals are gone, the competent fled, he’s careening around surrounded by second raters, opportunists, naifs and demoralized midlevel people who can’t believe what they’re seeing.

Again, everything depends on the quality and seriousness of the House hearings. Polling on impeachment has been fairly consistent, with Gallup reporting Thursday 52% supporting the president’s impeachment and removal.

Serious and dramatic hearings would move the needle on public opinion, tripping it into seriously negative territory for the president.

And if the needle moves, the Senate will move in the same direction.

But the subject matter will probably have to be bigger than the Ukraine phone call, which is not, as some have said, too complicated for the American people to understand, but easy to understand. An American ally needed money, and its new leader needed a meeting with the American president to bolster his position back home. It was made clear that the money and the meeting were contingent on the launching of a probe politically advantageous to Mr. Trump and disadvantageous to a possible 2020 rival.

Everyone gets it, most everyone believes it happened, no one approves of it—but it probably isn’t enough. People have absorbed it and know how they feel: It was Mr. Trump being gross. No news there.

Truly decisive testimony and information would have to be broader and deeper, bigger. Rudy Giuliani’s dealings with Ukraine? That seems an outgrowth of the original whistleblower charges, a screwy story with a cast of characters— Lev Parnas and Igor Fruman, natives of Ukraine and Belarus, respectively, who make you think of Sen. Howard Baker’s question to the Watergate bagman Tony Ulasewicz: “Who thought you up?”

More important will be a text or subtext of serious and consistent foreign-policy malfeasance that the public comes to believe is an actual threat to national security. Something they experience as alarming.

It cannot be merely that the president holds different views and proceeds in different ways than the elites of both parties. It can’t look like “the blob” fighting back—fancy-pants establishment types, whose feathers have been ruffled by a muddy-booted Jacksonian, getting their revenge. It can’t look like the Deep State striking back at a president who threatened their corrupt ways.

It will have to be serious and sincere professionals who testify believably that the administration is corrupt and its corruption has harmed the country. The witnesses will have to seem motivated by a sense of duty to institutions and protectiveness toward their country.

And the hearings had better start to come across as an honest, good-faith effort in which Republican members of Congress are treated squarely and in line with previous protocols and traditions.

With all that the needle moves. Without it, it does not.

The spiraling president adds self-impeachment to his repertoire

Donald Trump, an ongoing eruption of self-refuting statements (“I’m a very stable genius” with “a very good brain”), is adding self-impeachment to his repertoire. Spiraling downward in a tightening gyre, his increasingly unhinged public performances (including the one with Finland’s dumbfounded president looking on) are as alarming as they are embarrassing. His decision regarding Syria and the Kurds was made so flippantly that it has stirred faint flickers of thinking among Congress’s vegetative Republicans.

Because frivolousness and stupidity are neither high crimes nor misdemeanors, his decision, however contemptible because it betrays America’s Kurdish friends, is not an impeachable offense. It should, however, color the impeachment debate because it coincides with his extraordinary and impeachment-pertinent challenge to Congress’s constitutional duty to conduct oversight of the executive branch.

Aside from some rhetorical bleats, Republicans are acquiescing as Trump makes foreign policy by and for his viscera. This might, and should, complete what the Iraq War began in 2003 — the destruction of the GOP’s advantage regarding foreign policy.

Democrats were present at the creation of Cold War strategy. From President Harry S. Truman and Secretary of State Dean Achesonthrough Sen. Henry Jackson and advisers such as Max Kampelman and Jeane Kirkpatrick, they built the diplomatic architecture (e.g., NATO) and helped to maintain the military muscle that won the war. But the party fractured over Vietnam, veering into dyspeptic interpretations of America’s history at home and abroad, and a portion of the party pioneered a revised isolationism. Conservative isolationism had said America was too virtuous for involvement in the fallen world. Progressive isolationism said America was too fallen to improve the less-fallen world.

Hence, Republicans acquired a durable advantage concerning the core presidential responsibility, national security. Durable but not indestructible, if Democrats will take the nation’s security as seriously as Trump injures it casually.

Trump’s gross and comprehensive incompetence now increasingly impinges upon the core presidential responsibility. This should, but will not, cause congressional Republicans to value their own and their institution’s dignity and exercise its powers more vigorously than they profess fealty to Trump. He has issued a categorical refusal to supply witnesses and documents pertinent to the House investigation of whether he committed an impeachable offense regarding Ukraine. This refusal, which is analogous to an invocation of the Fifth Amendment protection against self-incrimination, justifies an inference of guilt. Worse, this refusal attacks our constitutional regime. So, the refusal is itself an impeachable offense.

As comparable behavior was in 1974. Then, the House articles of impeachment against President Richard M. Nixon indicted him for failing “without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by” a House committee, and for having “interposed the powers of the presidency against the lawful subpoenas” of the House.

If Trump gets away with his blanket noncompliance, the Constitution’s impeachment provision, as it concerns presidents, will be effectively repealed, and future presidential corruption will be largely immunized against punishment.

In Federalist 51, James Madison anticipated a wholesome rivalry and constructive tension between the government’s two political branches: “Ambition must be made to counteract ambition. The interest of the man must be connected to the constitutional rights of the place.” Equilibrium between the branches depends on “supplying, by opposite and rival interests, the defect of better motives.” But equilibrium has vanished as members of Congress think entirely as party operatives and not at all as institutionalists.

Trump is not just aggressively but lawlessly exercising the interests of his place, counting on Congress, after decades of lassitude regarding its interests, being an ineffective combatant. Trump’s argument, injected into him by subordinates who understand that absurdity is his vocation, is essentially that the Constitution’s impeachment provisions are unconstitutional.

The canine loyalty of Senate Republicans will keep Trump in office. But until he complies with House committee subpoenas, the House must not limply hope federal judges will enforce their oversight powers. Instead, the House should wield its fundamental power, that of the purse, to impose excruciating costs on executive branch noncompliance. This can be done.

In 13 months, all congressional Republicans who have not defended Congress by exercising “the constitutional rights of the place” should be defeated. If congressional Republicans continue their genuflections at Trump’s altar, the appropriate 2020 outcome will be a Republican thrashing so severe — losing the House, the Senate and the electoral votes of, say, Georgia, Arizona, North Carolina and even Texas — that even this party of slow-learning careerists might notice the hazards of tethering their careers to a downward-spiraling scofflaw.

We investigated the Watergate scandal. We believe Trump should be impeached.

We, former members of the Watergate special prosecutor force, believe there exists compelling prima facie evidence that President Trump has committed impeachable offenses. This evidence can be accepted as sufficient for impeachment, unless disproved by any contrary evidence that the president may choose to offer.

The ultimate judgment on whether to impeach the president is for members of the House of Representatives to make. The Constitution establishes impeachment as the proper mechanism for addressing these abuses; therefore, the House should proceed with the impeachment process, fairly, openly and promptly. The president’s refusal to cooperate in confirming (or disputing) the facts already on the public record should not delay or frustrate the House’s performance of its constitutional duty.

In reaching these conclusions, we take note of

1) the public statements by Trump himself;

2) the findings of former special counsel Robert S. Mueller III’s investigation;

3) the readout that the president released of his phone call with Ukrainian President Volodymyr Zelensky;

4) the president’s continuing refusal to produce documents or allow testimony by current and former government employees for pending investigations, as well as for oversight matters; and

5) other information now publicly available, including State Department text messages indicating that the release of essential military aid to Ukraine was conditioned on Ukraine’s willingness to commence a criminal investigation designed to further the president’s political interests.

In the 1970s, we investigated serious abuses of presidential power by President Richard M. Nixon, including obstruction of justice, concealment of government records and misuse of government agencies to punish his political enemies. We prosecuted many of Nixon’s aides for their complicity in Nixon’s offenses. Rather than indicting the president, the grand jury named him an unindicted co-conspirator, delivered to the House a “road map” of the evidence implicating him in wrongdoing and deferred to the House’s constitutional responsibility to address such presidential wrongdoing through the impeachment process.

The House, through its Judiciary Committee, fulfilled that responsibility by reviewing the evidence, interviewing witnesses and concluding that the facts warranted adopting three articles of impeachment:

  1. one for obstruction, one for
  2. abuse of power and one for
  3. contempt of Congress.

Shortly thereafter, the president resigned rather than face a Senate trial.

In our considered view, the same three articles of impeachment could be specified against Trump, as he has demonstrated serious and persistent abuses of power that, in our view, satisfy the constitutional standard of “high crimes and misdemeanors.” For example:

● Trump conditioned protection of the military security of the United States and of an ally (Ukraine) on actions for his personal political benefit.

● Trump subordinated the integrity of our national electoral process to his own personal political interest by soliciting and encouraging foreign government interference in our electoral process, including by Russia and China. He also appears to have demanded that Ukraine investigate a potential 2020 political opponent and pursue the conspiracy theory that Ukraine had interfered in the 2016 presidential election, despite the unanimous conclusion of the U.S. intelligence community that it was Russia that had interfered.

● According to the evidence laid out in the Mueller report, Trump engaged in multiple acts of obstruction of justice in violation of federal criminal statutes and of his oath of office to “take care that the laws be faithfully executed.” Because Mueller viewed Justice Department policy as precluding him from filing criminal charges against the president, the special counsel appropriately stated that these abuses are for Congress to address.

● Trump obstructed lawful congressional investigations by systematically withholding evidence and by directing government agencies and employees to refuse to cooperate with legitimate oversight by Congress. Most significantly, the president’s blanket refusal to honor requests for relevant information sought by House members conducting an impeachment inquiry constitutes impeachable contempt and obstruction. The public is entitled to know the facts, and Congress is the body our democracy has entrusted with uncovering them.

The Constitution provides for the elected representatives of the people to resort to impeachment in extraordinary circumstances showing that this drastic remedy is necessary to restrain, and possibly remove, a president who has engaged in high crimes and misdemeanors. Proper regard for reestablishing and protecting the rule of law requires firm and resolute action by the House. Lawmakers should not allow any refusal by the president to cooperate in its process to frustrate the performance of its constitutional duties.

If a bill of impeachment comes before the Senate, we urge all members of the Senate to put aside partisan loyalties and carry out their own constitutional duties courageously and honestly. In 1974, it was a group of Republican senators who put national interest over party loyalty and informed Nixon that his conduct was indefensible and would compel conviction by the Senate and removal from office. We hope the current Senate would similarly put honor and integrity above partisanship and personal political interest.