//  2/5/20  //  Commentary

Yesterday, I made my best case for why Trump’s impeachment was a good idea politically and was necessary for the rule of law, even though it will not result in Trump’s removal from office. Today, I make the opposite case. In a third post, I’ll choose a side. In the meantime, I invite you to comment with which view you mind more persuasive. 

The “anti-impeachment” thesis: Pursuing the impeachment of Donald Trump and failing to remove him was a bad idea and was poorly handled, and the proceedings will ultimately harm the Democratic party and undermine the rule of law. 

The anti-impeachment case should start where the pro case began: with Trump’s conduct. It was far from clear that his interactions with Ukraine, at least how the President tells it, constituted clearly impeachable conduct. As my colleagues and I discussed several times on the Versus Trump podcast, Trump has a point with his “it’s all politics” defense. It really is hard to articulate a clear difference between legal and illegal forms of using the power of the presidency for political advantage, so Trump can at least in principle say that what he did was not impeachable. 

Perhaps more importantly, Democrats were never able to frame Trump’s conduct as something obviously unacceptable for a President of the United States. That is because this scandal had a missing piece: Zelensky never gave Trump what he wanted, so the scandal was all about how the President tried, but failed, to have a foreign government harm his political opponent. That’s a weaker case than if Zelensky had complied with Trump’s request. After all, if the Watergate break-in never happened but we found out Nixon just wanted to spy on his political opponents, would he have been forced to resign? Probably not, because the fact that nothing actually happened enables the President and his defenders to plausibly deny or obfuscate his intent much more effectively. Here, if the Ukrainians really needed the money so badly and the conditions really were so clear, it is somewhat puzzling why Zelensky never acted on it. I still haven’t heard a great theory. 

The House report is particularly confusing on this point. “The evidence thus demonstrates that President Trump used the powers of his office to make Ukraine an offer it had no real choice but to accept: Help me get re-elected or you will not get the military and security assistance and diplomatic support you desperately need from the United States of America,” it says (at page 95). Except for one problem: Ukraine did have a choice, because it refused the offer—at least for a few months until the money was released—so it’s perplexing why the House thinks Ukraine “had no real choice but to accept.” 

Plus, the nature of the act itself was both somewhat complicated to explain and, more importantly, did not deviate from what most people already thought Trump was doing. Trump has an enormous ego and is obsessed with the political horserace. He has already shown that his Administration is unwilling to guard against foreign interference in American elections. He regularly says things to the public and to foreign leaders and then immediately backtracks. None of this is new information. To paraphrase the immortal rant of former NFL coach Dennis Green, Trump is who we thought he was. 

And then there is the obstruction of justice charge based on Trump’s refusal to cooperate at all with the inquiry. He had no legal justification for totally refusing valid subpoenas and ordering many people close to him to do the same, and that unprecedented obstruction was surely impeachable. But the Democrats let Trump off the hook here by failing to pursue the documents and testimony to the maximum extent of the law, and by failing to make a big show out of Trump’s non-compliance.

The House had several options to pursue the information it sought in the face of Trump’s obstruction, but it refused them all. It could have gone to court to enforce the subpoenas that had been (illegally) defied, but it did not—the House report says this would have taken too long and was “unnecessary and impractical.” It could have used its own power to hold officials in contempt and even fine or imprison people who did not cooperate, but the leadership ruled that out as seeming “arbitrary” to the public (and again emphasized they wanted to wrap things up quickly).  Democrats could have convened hearings and spoken to empty chairs to illustrate the scope of the refusal—as they did in May of 2019 when AG Barr failed to show up to testify about the Mueller report—but they didn’t do that either. Rather, the Democrats asked for information and witnesses, didn’t get them, and then threw up their hands and said “you can’t say no, we’re impeaching you, let’s move on quickly.” Recall that during Watergate the main thing that shifted public opinion was the revelations contained on audiotapes that President Nixon had recorded, and those were turned over only after a fight that went to the U.S. Supreme Court. And yet the Democrats did not try for a similar gambit. Curious.

Also, unfortunately, the Democrats failed, for the most part, to make this more than a partisan play. Zero Republicans voted for impeachment in the House, and the outcome in the Senate was known the second the articles were transferred to Mitch McConnell. I don’t think any prior impeachment has ever been entirely on party lines, and that precedent could potentially do lasting damage to the institution. Joshua Matz (the on-leave publisher of this blog) and Laurence Tribe say in their excellent book To End A Presidency that “when an impeachment is purely partisan, or appears that way, it is presumptively illegitimate.” They continue by adding that “when only Republicans (or only Democrats) view the president’s conduct as justifying removal, there’s a strong risk that policy disagreements or partisan animus have overtaken the proper measure of congressional impartiality.” It’s unclear whether the Democrats ever overcame what Matz and Tribe call the “presumption against partisan impeachments.” Most current elected Republican officials thought they did not. 

Plus, the Democrats did not succeed in removing Trump, or even coming particularly close. So now that Democrats have already tried and failed once to remove Trump, will this unleash him to act with even less constraint? Will it mean that any subsequent attempt at impeachment will be viewed equally politically? We do not know, but there is a high risk that the answers to both will be yes.

Last, there is public opinion and what this means for November. FiveThirtyEight’s polling shows that the whole process had either no or a very small effect on the President’s approval rating. In fact, it appears his approval numbers are slightly up and his disapprovals are slightly down from the fall of last year. And Trump may well receive a further bump from the acquittal; Bill Clinton did. The Democrats might have been better off either letting the President continue to tweet himself into historically high unlikability numbers, or even trying to work with the Republicans to pass legislation that could theoretically have had bipartisan support, such as funding for infrastructure improvements.

In the end, the “anti-impeachment” side sums to the following. The President’s conduct was bad, but wasn’t out of character for him—and, candidly, it didn’t really amount to much. And then when they found about the Zelensky phone call, the Democrats rushed to impeach instead of pursuing every shred of evidence, and then they quickly voted entirely along party lines to send dead-on-arrival articles of impeachment to the Senate. That has all the makings of something that will backfire terribly.

Which is it? More soon.

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