//  2/4/20  //  Commentary

The Senate vote on Donald Trump’s removal has been scheduled. The outcome is roughly as suspenseful as that of Fidel Castro’s continued re-election in Cuba from 1960 to 2008. Spoiler alert: Fidel won. So too will Trump win the Senate vote. 

With the process of impeachment basically over, we should ask: was it worth it? Was it a good idea? Was it handled well? Will it help the Democrats in the fall, or hurt them? And was it good for the long-term rule of law? I do not know the answer to these questions, so I decided to do what any good former debater and current lawyer does when faced with such uncertainty: take both sides, and see what side has the better arguments.

In this post, I will articulate the “pro” side: that is, I’ll give reasons why Trump’s impeachment over his withholding aid to Ukraine was a good idea, show that it was handled well, and, I’ll argue that, in the end, the country and the Democratic party will be glad this happened. Tomorrow, I’ll post the other side. I welcome feedback, and then I’ll write a concluding post wrapping things up after the vote. 

The “pro-impeachment” thesis: Pursuing the impeachment of Donald Trump was a good idea that will benefit the Democratic party and further the rule of law, even though it did not result in Trump’s removal. 

The case for the wisdom of impeaching Trump starts with the argument that what he did was clearly impeachable. It was uncontested that Trump asked a foreign leader to investigate his political opponent. The evidence was also persuasive that he illegally did this as a condition of the U.S. releasing money for foreign aid that had already been appropriated. And, when Congress undertook to investigate the matter, Trump directed his entire Administration not to cooperate with Congress, full stop. That’s not something the President can just do.  

These were high crimes and misdemeanors that merit—nay, require—impeachment. Here is how the Judiciary Committee put it in the summary of its report:  

When President Trump asked President Zelensky for a favor, he did so at the expense of both our national security and the integrity of our elections. As to the first, America has a vital national security interest in countering Russian aggression, and our strategic partner Ukraine is quite literally at the front line of resisting that aggression. When the President weakens a partner who advances American security interests, the President weakens America. As to election integrity, American democracy above all rests upon elections that are free and fair. When the President demands that a foreign government announce investigations targeting his domestic political rival, he corrupts our elections. 

House Report, p.3. No reasonable Congress would just let this slide. To do so would be to let down our Founders, our current generations, and future Americans who prize rule of law above all else and who want American elections to be free of foreign influence.

Moreover, the evidence and argument by Democrats seemed to move the needle with the general public, even though nothing broke Trump’s solid support among Republicans and right-leaning independents. According to FiveThirtyEight’s polling average, the announcement of the impeachment inquiry changed the mind of about 5-10% of Americans who had not supported impeachment, and, since then, polls have consistently shown that more Americans support impeaching Trump than do not support impeaching him. The margin has been roughly 5 percentage points, with about 50% supporting and 45% against.

Strategically, the Democrats can argue they timed things well. Because they did not engage in drawn-out fights to force testimony from uncooperative witnesses or go to court to obtain withheld documents, the process is now coming to an end ten months before the fall’s election. That means they can say they did what they could by impeaching the President over outrageous behavior, but now they can move on and go make their case to the American people about why Democrats should win and Trump should be beaten without being excessively bogged down with the impeachment lightning rod. 

They can also correctly say they gained the support of a few key moderate or institutionalist Republicans, especially those not in office. Trump’s former Chief of Staff John Kelly said the Republican Party is “open to a lot of criticism” because the Senate held only “half a trial.” (The public largely agrees—75% of those polled wanted witnesses at the Senate trial.) Former National Security Advisor John Bolton wrote a book that contradicts the President’s account of what happened. Senator Lamar Alexander said that what Trump did was “inappropriate,” though Alexander is still not voting to remove. And so on. The continued fracturing of the Republican establishment, so the theory goes, will benefit the Democrats electorally and, perhaps one day, permit the Republican Party to come back from the edge of what some say is excessive support of a leader with authoritarian tendencies. 

Finally, there is the often overlooked matter that Democrats honestly didn’t have that much else to do over the last six months. In 2019, the Democratic-led House passed really some important bills, including a landmark piece of legislation to improve our democracy called HR 1. But Senate Majority Leader Mitch McConnell refuses to bring up in the Senate, and Trump will never sign them anyway. Neither party wanted a big fight about the budget right now, so Congress quietly passed a compromise budget with large deficits. And while Congress worked across party lines to ratify the new US-Mexico-Canada trade agreement, major bipartisan legislation has gone nowhere given the antipathy between the parties that existed even before impeachment. The House has done some other investigating too, including by making an effort to get Trump’s tax returns, but those remain pending in the courts and elsewhere. 

That’s the gist of the pro side. Impeachment was the one thing that could unite and energize the Democratic party and continue to shed light on Trump’s dishonesty and malfeasance. The process showed voters that Democrats are doing whatever they can to fight against this Administration. And Democrats get to say the stood up for the rule of law, were thwarted by Republicans apologizing for the President, and now get to move on and talk to voters about core policy issues. 

Coming tomorrow: the other side.


Versus Trump: The Senate As Impeachment Court

1/2/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason and Charlie dive deep into two impeachment-related questions. First, what is the formal role of the Senate in an impeachment trial, and what power does the Chief Justice have? (Hint: Senators have all the power; the Chief Justice has basically none.) Second, what did the House say in its impeachment report about why it chose not to go to court or otherwise force recalcitrant Administration officials to testify—and does it make sense? Listen now!

Charlie Gerstein

Civil Rights Corps

Impeachment Trials and the Senator’s Oath of Impartial Justice

12/19/19  //  Commentary

Senators who vote on removal following impeachment trials must take an oath akin to that of a juror. The oath requires them to be impartial and vote regardless of the president's party affiliation. Will Senators do that here?

Ira C. Lupu

George Washington University Law School

Robert W. Tuttle

George Washington University Law School

Versus Trump: We're Famous! And There Are Articles

12/12/19  //  Commentary

On this week’s Versus Trump, Jason, Charlie, and Easha respond to Rep. Matt Gaetz's shoutout to this podcast during the Judiciary Committee's impeachment hearings. They then discuss their reactions to the Democrats' strategy with their public hearings and articles of impeachment. Listen now!

Charlie Gerstein

Civil Rights Corps

Easha Anand

San Francisco