Nancy Pelosi is withholding forwarding the
House-approved articles of impeachment to the Senate until Mitch McConnell
releases the official rules for the impeachment trial. It appears to be a
classic stand-off, seemingly with little incentive for either side to budge. Or
is it genius?
Until last week, it seemed like the Democrats might be bungling the
impeachment of Donald Trump.
Then Nancy Pelosi showed her trump card, announcing that she simply was not going to forward the Articles of Impeachment to the Senate until Mitch McConnell clarifies the rules. That one elegant move on her part could solve many of the issues that seemed problematic about the Democrats' approach to impeachment...depending on whether she plays her card, and how she does it.
It had long been clear that Nancy Pelosi was very wary of impeachment. When she finally realized that she had to do it, it appeared that she wanted to get it over with as fast as possible,
thereby inflicting the least damage on Donald Trump. All she wanted
to do was check a box and move on.
Don’t get me wrong: I never have dreamed for even an
instant that the Senate was ever going to vote to convict and remove Donald
Trump from the Presidency. I have my occasionally flights of idealistic fancy,
but I am not delusional.
But I had hoped that the Democrats would view the
impeachment of Donald Trump as an opportunity to present the full portrait of a
wildly corrupt and lawless Presidency that was hell-bent on destroying our
system of Constitutional democracy. I felt that Democrats should use
impeachment to inflict as much damage on Donald Trump’s reputation as possible,
to weaken his chances for re-election.
And, yes, call me an idealist, but I felt that the
Democrats owed it to the people they serve to pursue justice fully and wholly
-- to identify, investigate, and prosecute all high crimes and misdemeanors --
rather than carve out a narrow subset of misdeeds that could be put forward because they were politically amenable
to all Democrats in swing districts.
Early on, Nancy Pelosi frequently commented that it was pointless to pursue
impeachment if the general population was not behind the idea. This notion was
always grating, as it implied that she was being guided by polling data instead
of principle. Moreover, this perspective on impeachment was an abdication,
conveniently ignoring that it was very much her job – and that of all the
Democrats and the press -- to educate the population about the clear and
present danger than Donald Trump represented to the people.
Pelosi refused to bite when the Mueller Report essentially
concluded that it was the responsibility of her House to act on the obvious
instances of obstruction of justice chronicled in the 400 page report. Instead,
she ducked, and let William Barr’s disgraceful perversion of the report’s
findings stand as the definitive word in the public square.
In fact, Speaker Pelosi did not favor impeachment even after
the full picture of the Ukraine scandal became clear. She only turned when
seven freshmen Congressional Representatives who served in the military or
intelligence stuck their necks out in an Op-Ed and advocated for impeachment.
Only when impeachment-shamed by these swing-district vulnerable Representatives
did Pelosi get on the bus.
It appeared that her fundamental belief was that any
protracted or overly complicated impeachment process would inevitably backfire,
causing the voting population to grow weary with conflict and ultimately turn
on the Democrats as the cause. A perfectly fair concern: such a backfire could
result in the Democrats losing their vitally important House majority in the
2020 election.
And yet when she finally turned in favor of impeachment, it was again disappointing. She insisted on the narrowest possible articles of impeachment,
and seemed to want to race through the process, hoping that the Senate
would finish the inevitable acquittal as quickly as possible. In my view, all that a “fast and
narrow impeachment” would accomplish would be to allow Donald Trump to scream
from the rooftop that he had been "exonerated" and "vindicated" for six full months
leading up to the election.
I felt that Democrats would have been much better served to
follow a far slower and more deliberate path, one in which a full array of articles of
impeachment might have been explored and considered. As long as there continued to be new revelations and the possibility of new witnesses, there seemed to be no reason to arbitrarily call the process to an end. As long as the entire matter was in the House, Pelosi controlled the clock. She had to right to let the cases build, and even delay the actual vote on impeachment until weeks before the election. By that theory, the goal would be to stamp
Trump with the Scarlet Letter of impeachment, but allow no time for the Senate
to give him his “vindication” and “exoneration” before the election.
A “slow impeachment”
seemed far more calibrated to inflict heavy damage Trump’s re-election bid. Like a hurricane that stops in
its tracks, hovering over a tiny island, wreaking carnage over and extended
period, an impeachment inquiry that extended well into 2020 would continually pummel Trump's reputation as new evidence came to light.
But this much I knew: the minute the Senate acquitted Trump, then the entire subject of impeachment was over. Much like the way Barr shut down the Mueller report, an impeachment "acquittal" from the Senate would free Trump. He would know that the country would have no stomach for another round of impeachment. He would crow about his "vindication," and proclaim that the acquittal was proof that the "Deep State" had been on a "witch hunt" to perform and "illegal coup" designed to overturn the results of the 2016 election. Trump would be free to meddle in the 2020 election with impunity.
Why rush the process towards that acquittal?
I did not understand the virtue of carving out just two
narrow articles of impeachment when a powerful case could be made for five. In
addition to the two articles that were approved – one on “abuse of power,” and
a second on “obstruction of Congress” – the Democrats had the option to include articles on (1) violation of election financing law, when Micheal Cohen fingered Trump as "individual one" (2) repeated, brazen violations of the
Emoluments Clause for his use of his office for personal financial gain,
and (3) the epic obstruction of justice meticulously chronicled in the second
half of the Mueller Report.
Having simply the two articles of impeachment allows Republicans to frame the first article of impeachment as "one phone call," and the second as a test of his right to refuse to allow Executive branch employees to respond to Congressional subpoenas. These make the issues seem small and narrow, particularly when Republicans can argue that the Democrats never waited for a Supreme Court ruling on the matter of Congressional subpoenas. They would argue that Democrats did not avail themselves of the true Constitutional remedy in a dispute between two branches of government... and they would have a good point.
Five broader articles of impeachment would properly frame the impeachment as a case of flagrant, repeated, widespread malfeasance over a long period of time by a President who has no respect for the Constitution.
Do not misunderstand: I am not saying that more articles of
impeachment would cause the Senate to convict. I am saying that five articles
of impeachment would have accurately portrayed how this President has disgraced
the office of the Presidency, and would have been far more damaging to his
reputation, badly bruising him as he seeks re-election.
A further advantage of a “slow impeachment” strategy? This may well have afforded the opportunity for the Supreme Court to rule on the issue of whether it was
unconstitutional for Donald Trump to forbid Executive Branch employees from
responding to Congressional subpoenas. The Democrats specifically chose to render the Supreme Court moot on this matter by
racing ahead with Articles of Impeachment.
The Democrats’ rationale for not going to the Courts was
always that it would allow Trump to “run out the clock,” as the Court decision
could well be delayed until after the 2020 election. More recently, they argued
that a fast impeachment was necessary so that Trump could not interfere further
in the 2020 election.
Given these two very reasonable arguments for fast action, it is puzzling why the Democrats did not take some measure to ask the
Supreme Court to make an expedited ruling on the issue of whether Executive
Branch employees must comply with Congressional subpoenas. Indeed, it was
precisely the implementation an expedited ruling by the Supreme Court in 1974
that forced Richard Nixon to release the Watergate tapes.
The Democrats should have done everything in
their power to put the issue of Executive Branch subpoenas in front of the
Supreme Court… even if the process took us well into 2020. Why? A Supreme Court
ruling had no downside… and all upside:
--If the Supreme Court were to rule in Trump’s favor on this
issue, then sure, Nancy, go back to plan “A” and go for a “fast exit
impeachment.” There would of course be no testimony from Bolton, Barr, and the
gang… but that’s exactly what is happening now.
--But if the Supreme Court were to rule that Pompeo, McGahn,
Barr, Bolton, McGahn, and Mulvaney must testify before Congress, then we
would have an entirely new ballgame.
One of two things would happen. Either (1) those five men
would have to testify under oath, which
would be certain to unearth revelations about Trump’s involvement in Ukraine
that would further damage his reputation, or (2), Trump would try to defy both
Congress and the Supreme Court… by continuing to refuse to allow his
lieutenants to testify under oath.
While I would never bet on the integrity or conscience of
Lindsey Graham or Mitch McConnell, they both know that if Donald Trump defied a
direct order of the Supreme Court and Congress, then our system of
government is effectively dead. Even Lindsey Graham and Mitch McConnell would
have to think that one over long and hard.
Most important? The prospect of live testimony from these Trump officials would make for the kind of "must see tv" that has been utterly lacking in the Trump impeachment to date. Bolton on national television promising to tell the truth, the whole truth, and nothing but the truth? Forcing these witnesses to appear before the Senate is pure gold for creating the type of near-universal attention that could terribly damage Trump as we turn toward the 2020 Presidential election.
Two final comments on the advantages of a “slow”
impeachment:
1. As is becoming apparent in his Mara Lago ravings of this past
week, Donald Trump craves an acquittal in the Senate. He is intensely agitated
at the impeachment, and is desperate to put it behind him with a Senate
acquittal. A slow impeachment would deny Trump that satisfaction for months… if
not entirely.
2. Perhaps most important of all: there are new revelations coming out every day! The stunning reporting in Monday's New York Times shows just how much we still have to learn about Trump's controlling role in the Ukraine scandal. Why shut this down now?
In short, there are many, many reasons to favor a “slow impeachment” over Nancy
Pelosi’s supersonic version. And as of last week, I feared that all those
reasons had been ignored simply because Pelosi wanted a fast exit. She appeared hell-bent
on a rapid, narrow impeachment designed simply to ensure that Trump would forever
bear the stain of impeachment, but the cost was clear: within weeks, Trump
would be acquitted by the Senate, and he would have it all behind him. He would
be free to declare victory.
Then, everything changed.
Perhaps it was Mitch McConnell’s brazen contempt for his
constitutional duty when he declared he was "coordinating his efforts with the
White House," and his sickening statement that he had no intention of being an
"unbiased juror," despite an oath he must take to be exactly that.
Is it possible that Nancy Pelosi actually thought all of
this through, and all along knew that she had one magnificent Trump card left
to play?
Or was just a wonderful last-minute
realization?
But suddenly, out of nowhere, Nancy Pelosi dropped a twenty
megaton turd on McConnell’s parade.
I must admit that I certainly did not know that Nancy Pelosi had the
Constitutional right to refuse to forward House-approved Articles of
Impeachment to the Senate.
But this power – which she now wields – is stunning.
She knows that Donald Trump desperately craves the outcome
of a Senate trial. That he cannot wait for the trial to be complete so that he
can go on Fox News and hundreds of rallies and scream to the rafters that he
has been “exonerated” and “vindicated,” and that he was right all along that
the “Deep State” was pursuing a “coup” to undo the 2016 election.
Trump craves this.
And now he suddenly is confronted with the fact that Nancy
Pelosi can withhold this.
Suddenly, he realizes that she can deny him the one thing
he most urgently seeks.
How ironic. Nancy Pelosi is holding the Trump card.
If she never forwards the Articles of Impeachment to the
Senate, there is no trial. No acquittal. No exoneration. No celebration. No six
months of spiking the football.
In short, Nancy Pelosi now actually does have the ability to gain many of the advantages of a "slow impeachment," without having to wait for the Supreme Court to rule on whether Executive branch officials must comply with Congressional subpoenas.
Will she play it?
How will she play it?
My heavens, I hope that Nancy Pelosi stands firm and
refuses to send over those articles until Mitch McConnell formally agrees that
there must be public sworn testimony by all of Barr, Mulvaney, Pompeo, McGahn,
and Bolton.
Polls show that 70% of the American people believe that
there should be witnesses in the trial.
I’ve heard some liberals worry because a few Constitutional
scholars have claimed that Trump will not have been technically “impeached”
until Pelosi delivers the Articles to the Senate. Fine, Nancy. That means that you just wait
until January of next year. Then send them.
But in the meantime, you hold the Trump card.
You can force the testimony of Trump’s five henchmen
without going to the Supreme Court to test his ability to prevent Executive Branch officials from complying with Congressional subpoenas.
Sure, a trial with witnesses would mean that the Republicans can extract
their pound of flesh. If Dems can call witnesses, so can Republicans… and
they’d be sure to call Joe and Hunter Biden, and try to tar the validity of the
impeachment by subpoenaing Adam Schiff. That exchange is worth it to get Bolton testifying on national television.
All that said, Nancy Pelosi has triggered an extremely high stakes
game.
She cannot have issued the threat to withhold the articles
without being willing to
follow through on it. No matter how long.
And this may be the most crucial point: the notion of a "fair trial" is now being equated with witness testimony. Speaker Pelosi has made a de facto threat that she will not release the Articles of Impeachment to the Senate unless McConnell allows for witness testimony.
If she does not follow through on that demand, this will all have been empty posturing.
But if she holds her ground, we either get a trial with
witnesses, or Trump will never get his exoneration.
Heads Nancy wins, tails Trumps loses.
Yes, I’ve been critical of how the Democrats in general and
Nancy Pelosi in particular have been playing this impeachment.
But if this was the game plan all along, then she is a
genius. And if it was a last-minute insight, then it was one of the
best single minutes of thinking we’ve seen in a very, very long time.
Hold your ground, Madame Speaker. Wield your Trump card. Do not send
over those articles until you have the guarantee of witnesses. Trump is so
eager to get exonerated that he may well cave in.
And if that is indeed how this plays out, all we can say is this: Well played, Speaker Pelosi. Well played.
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