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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