With this post, the Democratic strategy of finding a way to impeach President Trump officially gets its own Ethics Train Wreck status. Up to this point, stories relating to impeachment have been filed using the record-setting 2016 Post Election Ethics Train Wreck tag, since it, like so much else, flows from the Democratic Party/”resistance”/ mainstream media (the Axis of Unethical Conduct, or AUC) tantrum over Hillary Clinton blowing the election. An argument could be made that I should have partitioned the impeachment push earlier, but I wanted to wait until the Democrats were really committed to their dangerous and divisive course. Now they are.
Not a single Republican voted for the resolution yesterday, not even those from less than bright-red districts. This was appropriate, since the impeachment push is not, as one should always be, a good faith Congressional reaction to conduct by the President which meets or might plausibly meet the Constitutional standard of “high crimes and misdemeanors.” Instead, this is the culmination of the Democratic Party’s determination from the beginning of the Trump Presidency to treat him as an illegitimate President and a usurper whom they intended to find a way to remove without an election.
The process, like the Mueller investigation, but even more so, has been so tainted and corrupted from the outset that nothing it uncovers short of smoking-gun evidence of an unquestionable crime by any interpretation can cure it. House GOP Conference Chair Liz Cheney said as much yesterday ( “Democrats cannot fix this process.This is a process that has been fundamentally tainted.'”). Indeed, as Democrats were saying that the vote erased Republican complaints about a lack of transparency in the process, Adam Schiff’s House Intelligence Chairman was holding another closed hearing.
There were other good reasons to vote against the resolution too, like the fact that resolution continues to rig the process. When the House authorized the Bill Clinton impeachment inquiry, House Resolution 581 established the rule that the Judiciary Committee chairman and ranking members (of both parties) had the power to issue subpoenas “by acting jointly.” If either declined to issue the desired subpoena, the procedure directed that the other refer the matter to the full committee for a decision, and then, if refused, could issue one alone. This was the same rule laid out by House Resolution 803 for the Nixon impeachment inquiry.
The resolution for the Trump impeachment inquiry, however, requires that a ranking member can only issue committee subpoenas “with the concurrence of the chair.” If the chair “declines to concur,” the ranking member must refer the matter to the full committee for decision. The chairman—the Democrat— may issue subpoenas unilaterally, but the Republican ranking member can’t have subpoena issued by the committee if either the chair or the Democrat-dominated majority approves.
Writes Thomas Jippard in the National Review, “If House Democrats really, or even half-heartedly, wanted something as grave as an impeachment inquiry to at least look reasonably non-partisan or fair, they know how to do it. They’ve chosen not to do it that way, which tells just what their motive really is.”
To be fair to the unfair Democrats, I don’t think anything they do at this point could make the inquiry look non-partisan or fair, just as Liz Cheney says.
Here is something I did not know: Kimberly Strassel points out in her “A Partisan Impeachment Vote” that the Senate voted on a motion by Senate Democrats to dismiss the House impeachment of President Clinton, and it was voted down. Thus the Democrats established a precedent for a motion to dismiss, and if the Republican majority in the Senate passed such a motion in the Trump case, that would be the end of impeachment. [Notice of Correction: The original version of this post mistakenly said that Democrats had the majority in 1999. Thanks to Inquiring Mind for the correction. (The GOP had a 55-45 majority)] This measure would almost certainly be challenged in the courts. I would advocate a Senate trial, no matter how contrived the impeachment case is.
Former Justice Department prosecutor Andrew McCarthy, whose assessment of the Mueller investigation’s flaws and foibles proved routinely correct, has written an excellent analysis of the resolution, which can be read here.
- “By any measure [the resolution] is a significant improvement over the status quo ante. Once it’s passed, the House as an institution will have endorsed the impeachment inquiry.”
- “What the resolution means is that the White House’s position of blanket, indiscriminate non-cooperation will no longer be justifiable. Nevertheless, the president maintains all the legal privileges he enjoyed — including executive privilege and attorney-client privilege — regardless of whether there was a resolution.”
- “If the president flouts a House demand for information, the House will simply add an article of impeachment for obstructing the investigation. Democrats would obviously prefer that to court challenges they could lose; it gives them incentive to ask for rafts of information.”
- “Not surprisingly, the resolution endorses the “ongoing investigation” that Democrats have been conducting. The resolution is pitched as a means of continuing that inquiry, not beginning anew. This is a face-saving measure: Democrats should have passed this resolution at the beginning of the inquiry. They did not do that because, as discussed yesterday, they hoped to move public opinion in their favor with selective leaks to friendly media of their closed-door proceedings — a strategy that, sadly, has worked.”
- “Whether the proceedings ultimately will be seen as open and transparent will depend in large part on whether the heretofore secret proceedings are disclosed. Significantly, the resolution allows for that, but does not require it. The issue is placed in the discretion of Chairman Schiff…The resolution empowers him to decide what should be made public, and to direct “appropriate redactions” for not only any classified information but anything he decides is too “sensitive” to be disclosed.”
- “If the House Democrats have an impeachment case against the president, the Democrats have a strong incentive to let the process play out with deferential due process befitting the seriousness of the matter. If the case is thin gruel and the process is manifestly skewed against the president, with disclosure withheld, cross-examination slashed, exculpatory witnesses denied, etc., it will look like a partisan hit job — i.e., Democrats determined to impeach a president they never accepted, not spurred by egregious misconduct.” *
- “[T]he president and his allies are going to need a substantive defense to the charge that, with a purpose to interfere in the 2020 election, he abused his foreign-relations power by encouraging a foreign government to investigate an American citizen for violating foreign law. Making Schiff the bogeyman is only going to get them so far. It will wear thin quickly if Schiff performs well.”
*JAM Note: It already would be clear that “the impeachment effort is a partisan hit job — i.e., Democrats determined to impeach a president they never accepted, not spurred by egregious misconduct” if the mainstream media hadn’t allied itself with the effort to remove President Trump by any means necessary long ago.