The impeachment drama is entering its next critical stage, soon to feature public testimony by witnesses who have already provided blockbuster evidence incriminating Donald Trump in numerous instances of treason, bribery, and other high crimes and misdemeanors. There have already been so many surprises that no one can do more than guess what will happen next.
Democrats have deftly fended off Republicans’ bad-faith process-oriented complaints about the inquiry, carefully moving forward with closed-door testimony until it became possible to enter this next key stage. With Republicans having spent the last few weeks complaining bitterly about the supposedly secretive process, we can now expect them to complain even more bitterly about “show trials” and to say that names are being dragged through the mud unnecessarily. “Couldn’t this be done discreetly?” they will surely shout.
As many have noted, this focus on process is an indication that Republicans have nothing of substance to say in Trump’s defense. Probably their most laughable claim is that an impeachment would “undo an election.” Well, yes, that is what any impeachment necessarily does, because it only applies to people who have won elections!
Are Republicans also surprised that only people who borrowed money declare bankruptcy (meaning that “bankruptcy undoes a loan”) or that only married people get divorced (so divorces undo weddings)? The founders of this country included impeachment in the Constitution precisely because they knew that some elected (and appointed) officials must be removed from office. That is, as the saying goes, a feature and not a bug.
But the larger question that Democrats will still have to answer is how many articles of impeachment to pursue. Here, I want to explain—while fully acknowledging that this is a devilishly difficult question—why the Democrats should not limit themselves only to the impeachable offenses that have recently been uncovered in connection with the Trump-created mess related to the sovereign nation of Ukraine.
In the end, impeachments—even (indeed, especially) impeachments that are not followed by conviction in the Senate and removal of the President from office – are an essential process by which we say what behavior is beyond the pale for a president. Sadly, Trump has not limited himself to trying to use foreign policy to rig his reelection, and it is absolutely necessary that he be called out on all of his transgressions.
The Strategic Case for Minimalism Does Not Ultimately Hold Up
As I noted above, I do not deny that there are certainly some strong reasons why the Democrats might want to pursue only the most obvious and egregious of Trump’s impeachable acts.
Speaker of the House Nancy Pelosi, after she had made the decision to proceed with the impeachment inquiry, spoke the truth when she said: “We handled this with such care. It isn’t like we ran into this. He has taken us to this place. He has given us no choice.”
Perhaps understandably, however, Pelosi then said something that was truly cringe-inducing: “Politics has nothing to do with impeachment, in my view.” This is nonsense, and she surely knows it.
Pelosi’s best argument for keeping the impeachment inquiry focused only on Ukraine, in fact, is based entirely on the fact that impeachment is ultimately an act of politics (although it does not need to be an act of partisanship). Because it is political, it is arguably important to keep the American people on board with the idea that their President has done something very wrong. Perhaps only the most straightforward case will do that job, validating the slogan “Keep it simple, stupid!”
The idea is not simply that the Democrats need to keep people awake enough to continue to pay attention (which means that it is essential not to get bogged down in legalistic language), but also that a simpler indictment is arguably more difficult for Trump’s defenders to turn into a morass of confusion. Asking people to keep three, five, or eight different impeachable offenses clear in their minds might be asking too much, especially when Trump and his cheerleaders will deliberately jump from issue to issue in an effort to convince people that “this is all a convoluted mess.”
The strategic argument against that claim is that it is too cute, because Republicans will do their best to put a fog over the discussion no matter what. Even one article of impeachment is going to have several prongs that must be explained. Republicans are already repeating “no quid pro quo” as if it matters, and Democrats are left deciding whether to say, “A quid pro quo isn’t needed” and leave it at that, or instead to say, “A quid pro quo isn’t needed, but even if it were, there’s evidence in spades that Trump proposed one.” Is arguing in the alternative too lawyerly?
It might be possible that one article of impeachment can be stripped down to the very minimum for Democrats to defend, but that will then leave them open to the claim from Republicans that there is not enough substance to the case against Trump to remove him from office. “This is all you have? That’s nuthin’—and certainly not enough to end a presidency!”
In the end, the Democrats might be talking themselves into a strategy that leaves them without a “simple and clean” case even as they opt not to pursue the strongest possible case against Donald Trump. As so often happens, focusing on the clever public relations-friendly approach might well be a fools’ errand that would have catastrophic consequences.
The Substantive Case for Minimalism Is Irresponsible and Wrong
But what about the substantive (as opposed to strategic) case for minimalism in drafting articles of impeachment? On that question, I have yet to hear anyone make a plausible case that the country is better off to let a raft of impeachable acts slide and that we should go after only the most important ones. If they are impeachable offenses, they are all important.
The editorial board of The New York Times, shortly after Pelosi moved the Democrats forward into the impeachment inquiry last month, gamely tried to say that the reason not to bother with impeachment for most of what Trump and his minions have done is that the system was “working” to root out those misdeeds. Many former Trump aides are in prison, they argued, so what really is the problem? Let the voters punish a President who is a bad actor when he tries to run for reelection.
This, not to pull any punches, is simply bonkers. Before exploring why, I will note that The Times’s editors did make the good point that the Democrats had no choice but to pursue impeachment once it became clear that Trump was trying to rig next year’s election. If impeachment is for nothing else, they point out, it must be used in situations in which the President is committing impeachable offenses that stop him from being held accountable by voters.
Fair enough, but impeachment is not “for nothing else.” Impeachable offenses – treason, bribery, and high crimes and misdemeanors – should not simply be tolerated until the next election so long as that election will be fair. What if the President commits treason or accepts bribes but does not rig an election? And what if he shows every indication that he will keep committing those offenses – and also that he will begin to pardon all of his partners in crime?
According to The Times’s editors’ logic, it would seem that the impeachment decision would not be based on the seriousness of the offense but (among other things) whether the President is in his first or second term, because the voters will not have a chance to repudiate a second-term President. But even then, why would we not say that “the system works” if the President will be out of office soon in any event? We can always talk ourselves out of doing something difficult.
Moreover, should it matter whether the President is in the early or late stage of his term? Obviously, there are practical arguments against impeachment on, say, the last day of a President’s second term, but that exercise in reductio ad absurdum surely cannot lead us to conclude that we need never seriously take any non-election-related impeachable offense as a reason to impeach. “He’ll be gone soon enough” cannot be our irresponsible approach.
Ultimately, the argument for impeaching where a President has done things that merit impeachment is the same argument that Pelosi used to move forward with the Ukraine-related charges. After all, everyone told her that the Senate will never – and I repeat here my admonition above that this whole situation is so volatile that no one should be confident in making any predictions – convict Trump. So what, one might ask Pelosi, is the point?
She rightly argued (not in these words, as far as I know) that to impeach is itself an act of patriotism, and we pursue it because not to do so would be to tolerate presidential wrongdoing that harms the nation. But that is also the very reason not to leave any valid articles of impeachment on the cutting-room floor. If a President did something that is wrong enough to constitute an impeachable offense, it is essential that as many people as possible stand up and say so – for every offense, not just the easy ones to explain.
The Mueller Report Lives On
What other impeachable offenses might the Democrats pursue? How much time do we have to discuss all of the possibilities? Seriously, however, the point is that the special counsel’s report from Robert S. Mueller is an indictment brief sitting in plain sight.
Even people who seem to be paying attention have lost sight of what Mueller found. One Washington Post op-ed writer claimed last month that “Mueller said there was not an illegal conspiracy,” which is simply false (he concluded only that the evidence was insufficient to pursue a criminal conspiracy complaint, saying nothing about impeachment), and then added: “On the issue of abuse of power, Mueller laid out possible evidence but stopped short of encouraging Congress to move to impeach the president. … The Mueller investigation did not deliver an ironclad case against the president.”
But Mueller clearly did not feel that it was his place to encourage Congress to do, well, anything. He announced that he could not indict a sitting President, and he then laid out at least ten crimes for which he did have enough evidence to indict a person who was not immune from prosecution. A person who says that what Mueller delivered is not an ironclad case is a person who simply did not pay attention and bought into the post-report spin because it was a political anticlimax.
Most importantly, including Mueller-related offenses in the articles of impeachment would also validate another important principle of the rule of law, which is that the Attorney General cannot act as the President’s personal attorney. One of the reasons that pundits like the one who wrote that op-ed in The Post have gotten things so badly wrong is that William Barr gamed the system by lying about what Mueller’s investigation established. That cannot stand.
In the end, the Democrats will make their decisions based on the usual combination of high principles and street-level politics. That is the way these things work, of course. But we need to remember that, if the Democrats do not lay out the full case against Trump, everything that is left out will have been validated and will become a precedent for future misdeeds by this or any other President.