Monday, December 23, 2019

A Very Strange Debate

David Super

     Even before last week’s impeachment vote in the House, a strange debate had begun about how the House should proceed with its articles of impeachment.  Some have suggested that the House should never send those articles to the Senate to trigger a trial on whether President Trump should remain in office.  Others have suggested that the House should wait until later in the year or somehow hold those articles hostage until Senator McConnell agrees to trial procedures to the Democrats’ liking.  Some have suggested that the Senate could go ahead and hold an impeachment trial without the House forwarding its articles of impeachment.  In the course of this debate, scholars have opined on such esoteric questions as when is a president truly impeached. 

     Many of the commentators participating in this debate rely on misunderstandings of congressional procedure.  Others operate on rather fanciful understandings of politics.  And all too many are trying to find a clear legalistic answer to a question that is essentially one of public perceptions.  I believe that the House should present its articles of impeachment to the Senate as soon as possible after Congress returns in January and that failing to do so is likely to undermine the very purposes the House has sought to serve through impeachment. 

     Any analysis must, of course, start with the question of what those purposes are or should be.  It is not, as some Republicans like to claim, reversing the result of the 2016 election.  The most impeachment could possibly achieve would be to install Vice President Pence, who prevailed in that same election and has enthusiastically supported President Trump’s policies without exception.  And even if the indications of Vice President Pence’s involvement in extorting Ukraine blossomed into something worthy of impeachment, the Republican Senate would never remove him from office before he had had the chance to appoint, and Congress to confirm, a new Republican vice president. 

     The realistic goal also cannot be removal of Donald Trump from office before the expiration of his current term.  We have absolutely no indications that anything like twenty Republican senators would even consider removing him from office.  Some have suggested that postponing the trial until after the Senate primaries will free Republican senators to vote to remove President Trump.  That is unrealistic for several reasons.  First, many of the primaries are quite late:  more than half are during or after August.  Holding an impeachment trial in the summer to foreshorten presidency subject to the voters’ review a few months later will strike many voters, including plenty who are skeptical of President Trump, as gratuitous.  Second, even apart from primaries, Republican senators in contested races will fear dampened enthusiasm among the President’s base should they vote to remove the President could dampen general election turn-out.  Third, the numbers are wrong:  the number of Republican senators up for re-election is just barely enough to supply the votes needed to convict, and that is counting some of the President’s biggest congressional supporters.  Finally, and most crucially, very, very few Republican senators have given even the slightest indication that they have any interest in removing the President.  This Trump exceptionalism – the delusion that the President is an aberrational figure in a largely wholesome Republican Party – is one of the greatest impediments to thoughtful responses to the current situation.  I have yet to hear a plausible list of potential removal-voting Republican senators with even a dozen names, much less twenty. 

     The Democrats’ plausible goals for impeachment are, and have always been, considerably more modest:  to better inform the U.S. electorate of some of the unlawful and unethical actions taken in their name, to compel congressional Republicans to choose between defending the Constitution and defending the President, and to deter this sort of behavior in the future.  The cost of achieving these goals has always been steep:  forcing Democrats in pro-Trump districts to cast difficult, perhaps lethal, votes and increasing the cynicism of relatively apolitical voters who condemn “squabbling” without looking thoughtfully at the merits. 

     For many months after last year’s election, Speaker Nancy Pelosi took the view that this price was too high, that congressional Democrats would damage themselves more than they would the President by pursuing impeachment.  As one of the most successful politicians of our era – one who led Democrats to a House majority not once but twice and who has remained true to Democratic priorities throughout her career – the Speaker’s voice bears careful consideration. 

     The combination of the President’s brazenness in seeking to extort Ukraine into helping his re-election and ceaseless pressure from Democratic activists persuaded her to reverse course.  In the process, she brought along every Democrat except Rep. Colin Peterson, whose Minnesota district is deeply conservative, Rep. Jeff Van Drew, who turned out not to really want to be a Democrat, and Rep. Tulsi Gabbard, who long ago demonstrated that she has a very different agenda.  Forcing Democrats in conservative districts to cast votes that their opponents will portray as ultra-partisan and mean-spirited could cost Democrats enough seats to lose control of the House in the next Congress; even if it does not, it could leave them with a bare majority but little ability to win controversial votes. 

     It seems quite remarkable that some voices are now suggesting that the House Democrats, having paid this price for impeachment, should give up the benefits of holding a Senate trial to further educate the electorate and to force Republican senators to decide whether to declare the President’s conduct acceptable.  (Until the House “exhibit[s]” authenticated articles of impeachment to the Senate, Senate rules make no provision for holding an impeachment trial – and Senate Republicans clearly would not want to do so in any event.)  If House Democrats did not want a Senate trial, they should have passed a resolution of censure instead, putting their endangered Members in much less of a bind.  Playing arcane procedural games that few voters will understand seems likely only to exacerbate public cynicism and the difficulties of endangered House Democrats. 

     The notion that, by withholding the articles of impeachment, House Democrats can extract procedural concessions from Senator McConnell, is preposterous.  As Senator McConnell has pointed out repeatedly, threatening to withhold something he does not want provides little leverage.  It is like my saying I will refuse to dump a thousand gallons of toxic sludge on your lawn unless you give me a million dollars.  On the other hand, as I previously explained here and further elaborated in the Washington Post, permanent Senate rules and the decisions of Chief Justice Roberts, not Senator McConnell, will set the rules for a Senate trial and are likely to give the House’s impeachment managers ample opportunity to subpoena Administration officials.  Senator McConnell clearly knows this; the Democrats would do well to tailor their strategy accordingly. 

     As for the questions of whether President Trump really has been impeached if the House never sends articles of impeachment to the Senate and whether the President would prefer to prevail in a Senate trial or to never have one, I do not know and I do not care.  The former is a question of empty symbolism:  the President’s place in history will not be determined by such technicalities but rather by his unprecedented relationship with Russia, by his transformation of the mores of the presidency, and by his throwing sobbing immigrant children into cages.  The second question represents an unhealthy substitution of personal concerns for advancing the well-being of the country:  we should be focusing on restoring our political institutions – which includes in part communicating with voters in ways they understand – and on ending our shameful treatment of immigrants rather than on the vanity of one man. 

     A Senate trial is no panacea.  It will end with acquittal.  But voters who discounted the House hearings as a partisan spectacle may find a Senate trial, with the President fully represented and the Chief Justice presiding, much more persuasive.  And establishing once and for all which senators are willing to accept what the President has done may play an important role in reforming or replacing the Republican Party. 


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