The End of Impeachment?

Rep. Adam Schiff peaks next to Rep. Jerry Nadler during a news conference on the Senate impeachment trial of President Trump in Washington, D.C., January 22, 2020. (Mary F. Calvert/Reuters)

On the menu today: With Tennessee senator Lamar Alexander declaring, “there is no need for more evidence to prove something that has already been proven and that does not meet the United States Constitution’s high bar for an impeachable offense,” the Senate’s impeachment trial might be wrapping up as soon as today. If impeachment is indeed coming to a close, it’s time to focus on a strangely unasked question in much of this: Whom were the House impeachment managers trying to persuade? And did they seem like a group that was primarily focused on changing the minds of Republican senators?

Were the House Impeachment Managers Even Trying to Persuade GOP Senators?

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In Steven Covey’s bestselling book The Seven Habits of Highly Effective People, his second habit is to “begin with the end in mind,” which means to “begin each day, task, or project with a clear vision of your desired direction and destination.”

In all likelihood, reaching 67 votes in the Senate to support the removal of the president was probably impossible. House impeachment managers had to try to convince, at minimum, 20 Republican senators to vote to remove. This means that targeting their message to persuade a rebellious senator such as Lisa Murkowski wasn’t enough. The message would have to be designed to persuade senators right in the middle of the GOP caucus who usually vote with the president and who have no inherent desire to see him removed from office. House impeachment managers were asking Republican senators to sign off on something that had never happened in 230 years. (George Washington took the oath of office to be president in 1789.)

Persuading Republican senators is an extremely tall order. But you can fairly ask if the House impeachment managers even tried.

The Ukraine aid was included in the John S. McCain National Defense Authorization Act for Fiscal Year 2019; on August 1, 2018, that legislation passed the Senate, 87–10. Only two Republicans voted “nay,” Mike Lee of Utah and Marco Rubio of Florida. Three Republican senators did not vote, Rand Paul of Kentucky, Jeff Flake, and John McCain, who passed away later that month.

So out of the 53 Republican senators in the chamber today, all of them except for Lee, Rubio, Paul, and ones elected in 2018 — Rick Scott, Mike Braun, Josh Hawley, Kevin Cramer, Marsha Blackburn, Mitt Romney, and the appointed Martha McSally — voted for that Ukraine funding. The House impeachment managers message to those 43 Republican senators could have and should have emphasized, “you voted to authorize and appropriate those funds. That is your power as a senator under our Constitutional system. The president had the opportunity to veto that legislation, and he did not. The president had the opportunity to delay the funds legally and openly by communicating to Congress he was hold up the funding under the Impoundment Control Act. He did not do that.”

Before the Senate vote, 220 Republicans and 139 Democrats voted for this legislation. The president didn’t defy Democrats on Ukraine funding. He defied 359 House members and 87 senators of both parties, about as broad a bipartisan consensus as you see in this day and age. And the president himself signed that legislation into law. That presidential signature has to mean something; if signing a bill into law doesn’t represent an acceptance that what is in the legislation will become law, what does it mean? If a president defies a law that he signed into law himself, why should anyone else obey the law?

Senators, that is your constitutionally guaranteed power that the president ignored and defied. Page 132 of the bill, right there in black and white: $250 million. There is no asterisk, no caveat, no indication that this funding is optional. Congress did not mumble, stutter, or have any lack of clarity in what the law required. The law required the executive branch to send $250 million to Ukraine for security assistance, and the executive branch did not, at the direction of the president. If he had concerns about corruption, he could have communicated that before the bill passed, or he could have vetoed the bill, or he could have invoked the Impoundment Control Act. He could have urged a Congressional ally to introduce legislation revoking that funding. He did none of those, and instead tried to just hold up the funding in secret.

If the president does not distribute funds that have been authorized and appropriated by Congress and chooses to simply ignore the law that is passed, then nothing Congress does has any meaning. It means every year’s arguments in Congress about how much we should spend and on what is kabuki theater, because the president will ultimately make all of the government spending decisions himself. If the president does not suffer a significant consequence because of his actions, it means that the Congress has voluntarily given up it’s “power of the purse.” Article I, Section Nine of the Constitution is similarly clear: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of Receipts and Expenditures of all public Money shall be published from time to time.” Not only does that give the legislative branch the power to spend the money, it demands accountability to the public of how that money is being spent.

Every member of the Senate begins their time in office by taking an oath: “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”

You cannot take that oath, and then say that the president can refuse to spend money authorized and appropriated by Congress. That is not supporting and defending the Constitution, that is supporting the violation of the Constitution.

It is good that the Ukraine assistance was released on Sept. 11, 2019. Some would argue that because the funding was only delayed, not completely withheld, the circumstance is “no harm, no foul” or “minimal harm, minimal foul.” But would the funding have been released if Politico hadn’t reported that the administration was “slow-walking” the aid on August 28?

If the executive branch only starts to spend congressionally authorized and appropriated money when Congress notices and starts publicly registering its anger, the entire process of how our government spends money will break down, and the separation of powers will be reduced to a cracking facade over a de facto monarchy. The president will have a secret veto of sorts, a way to stop, or at least significantly delay, spending he doesn’t like without ever telling any other branch of government. The legislative branch will have to authorize spending, then appropriate funds, and then check back a few months later to ensure the executive branch actually did as the law required.

Notice this line of argument doesn’t even get into the quid pro quo. The motive isn’t really that important. This line of argument doesn’t contend that Hunter Biden should not testify and it doesn’t attempt to defend Hunter Biden or Joe Biden from allegations of wrongdoing. (Democrats can make an effective impeachment argument, or they can protect the reputations of the Bidens from a process that is likely to make them look bad. Sometimes life puts us in a situation where we have to make difficult choices between two goals and trying to do both means neither goal gets achieved.)

During the trial, impeachment manager Sylvia Garcia of Texas delved into how the president was afraid of running against Biden: “He asked for it because he knew it would be damaging to an opponent who was consistently beating him in the polls and therefore it could help him get reelected in 2020. President Trump had the motive, the opportunity and the means to commit this abuse of power.”

Does that sound like an argument that appears targeted towards the center of the GOP caucus? Does that seem likely to persuade a Republican senator?

The Democrats want to prove that President Trump abused his power. Everything I laid out above focuses on a different question: Did the president violate the Constitution? The motive for it is moot. It doesn’t matter whether Trump did it because he thought the Ukraine assistance would be wasted or whether he did it because he was trying to strongarm the Ukrainian government. The violation of Congress’s authority to control and direct spending is the same.

The House managers want to argue, “Trump is a bad guy and his presidency must end,” which was never going to get much traction among the “jurors” they’re supposed to be trying to persuade. The argument “Trump’s actions violated the Constitution, and must carry a serious consequence, otherwise we will get more of this from him and future presidents” might get a little more traction. Focus on the principle, not the person. You might persuade Senate Republicans that more than a party-line vote might act as a warning shot to Trump and to future presidents. An impeachment vote that falls short of 67 votes but comes close, with well more than half, would still be a stinging rebuke.

The big question of the past week has been whether the Senate would hear from witnesses. How many facts are in dispute in this case? Sure, John Bolton would probably be able to flesh out some anecdotes and provide colorful details, but the relevant question is the date of the transfer of funds. Senate watchers believe that if 47 Democrats vote to have witnesses, and three Republicans vote with them, the vote would come down to a 50–50 tie. The vice president has no role in impeachment, for obvious reasons. The tiebreaking vote would come from . . . Chief Justice John Roberts.

Past history has taught us that John Roberts doesn’t like controversy and doesn’t like getting dragged into partisan politics. If you’re a Democrat who is hoping for removal and for Roberts to make that tough decision on witnesses, you want to avoid antagonizing him as much as possible. You want to appear reasonable, and fair-minded, and focused on the facts.

Yesterday, the trial was at the question-and-answer portion; senators submit their questions in writing and the chief justice, presiding over the trial, reads them to either the impeachment managers or the president’s attorneys.

Elizabeth Warren submitted this question to the House impeachment managers: “At a time when large majorities of Americans have lost faith in government, does the fact that the chief justice is presiding over an impeachment trial in which Republican senators have thus far refused to allow witnesses or evidence contribute to the loss of legitimacy of the chief justice, the Supreme Court, and the Constitution?”

Your mileage may vary on how you interpret Roberts’s facial expression after reading that question aloud and staring in Warren’s direction; most of his face was stony but to me his eyes could not hide his exasperation. You could almost see the thought bubble over his head: “Really? I’m doing my best to prevent this from turning into a circus, I have no authority to order anyone to testify, and you’re giving me grief like this?”

Warren put Adam Schiff in a somewhat awkward position; he immediately responded, “Senator, I would not say that it contributes to a loss of confidence in the chief justice. I think the chief justice has presided admirably.” The trial watchers and legal analysts thought that question was a serious mistake, unnecessarily putting the chief justice into an incredibly awkward position. (Now if Roberts were to cast the deciding vote in favor of witnesses, he looks like he’s acquiescing to pressure from Warren.)

“Begin with the end in mind.” If your goal is to get Roberts to vote your way if the question of witnesses comes down to him, then you don’t ask a question like that.

But if your goal is, “make sure your name is in the headlines, four days before the Iowa caucuses,” well then . . . mission accomplished, I guess.

ADDENDUM: On this week’s The Editors podcast, wrapping up impeachment and trying to forecast the big finishes in Iowa.

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