Few people have neutral feelings about President Donald Trump or the impeachment process that is being conducted against him. Listening to commentary from either officials or seasoned analysts on both sides of the debate, it is hard to believe that the same set of events is being discussed.
Yet that is exactly the reality faced by today’s political observer. For more than a month, it has been commonplace to hear the inquiry over the president’s dealings with his Ukrainian counterpart described as a “partisan witch hunt” designed to undo an election by sworn foes of the president or, alternatively, as the appropriate response to a dangerous abuse of executive power, which Congress has a responsibility to stop in an effort to protect the American people.
After weeks of complaints from defenders of the president over the closed-door hearings taking place, last Thursday, the House of Representatives voted for the first time to formally authorize an impeachment inquiry. The vote, which passed on nearly purely partisan lines, will make public the testimony gathered by committees over the past month and set guidelines for how the process should proceed.
Yet it seems unlikely that the vote will do much to change the talking points or the impression that there are alternate realities. House Speaker Nancy Pelosi said before casting her vote to proceed with the inquiry, “What is at stake in all this is nothing less than our democracy,” and within minutes of the final tally, the White House released a statement that “the president has done nothing wrong, and the Democrats know it.”
Giving the President His Due
A centerpiece of arguments criticizing the impeachment inquiry is that the month of closed hearings, conducted according to the direction of the Democratic House majority and punctuated by selective information leaks, has underhandedly built a case against the president without allowing him an opportunity to defend himself.
“One of the fundamental rights that we always learned about in America is due process and everybody’s right to cross-examine witnesses and to defend themselves in public,” Kelly Shackelford, president and CEO of First Liberty, a religious liberty law firm, and one of over 100 signatories on a letter from conservative leaders opposing the inquiry, told Hamodia. “The adversarial process is important to our democracy, and to disallow that would be one of the most extreme steps that Congress has ever done.”
The House rules passed last week do allow for Republicans on relevant committees to question witnesses for the same amount of time as Democrats, and also allows them to call their own, but only upon the approval of the entire committee.
By definition, that gives Democrats veto power over who can be called to testify, handing additional control to Intelligence Committee Chair Rep. Adam Schiff (D-Calif.). Mr. Shackelford said that the rules fall short of affording the president fair legal protection.
“In a criminal trial you would never say that you can only call witnesses that the prosecutor approves, but that is exactly what they’re doing,” he said. “It makes a mockery out of the process.”
The resolution allows the president’s counsel to attend Judiciary committee hearings, but also gives its chair, Rep. Jerrold Nadler (D-N.Y.), the right to deny “specific requests” as long as the White House refuses to cooperate with the investigation.
By contrast, as contentious as the most recent presidential impeachment was — that of President Bill Clinton — its procedures, set by a Republican Congress, were mutually agreed upon by Democrats and have won high praise for their fairness.
Frank O. Bowman III, a professor at the University of Missouri’s School of Law and author of a book on the “history of impeachment for the age of Trump,” has been a proponent of impeaching the president since before the revelation of the call with Ukraine’s President Volodymyr Zelenskiy.
He defended the House’s approach, saying that it reflects the unique challenge the Ukraine affair presents.
“The whistleblower revealed a new incident that the House is now forced to investigate without a special prosecutor, grand jury powers, the cooperation of the Justice Department or the courts to back them up,” he told Hamodia. “It’s up to them to collect the information that a prosecutor would, to send subpoenas and to take the necessary precautions to make sure witnesses aren’t colluding or being influenced.”
Prof. Bowman contrasted the situation to the nation’s three past impeachment proceedings: President Andrew Johnson’s, where his dismissal of his Secretary of War spoke for itself, and those of Presidents Clinton and Richard Nixon, where abundant evidence was collected by special prosecutors before proceedings in Congress began, rendering extensive Congressional investigations unnecessary. He also cited the chaotic public testimony of former Trump campaign manager Corey Lewandowski as a case in point as to why Democrats have done fact-finding behind closed doors, and referenced a recent statement by former Republican Congressman Trey Gowdy (S. Car.), who headed the House’s Benghazi investigation, backing the Democrats’ course of action as the most efficient and productive way.
Prof. Bowman said that the only complaint on process that he felt had “some merit” has been over the steady stream of leaks of ostensibly private testimony.
“I think that’s a bit much,” he said. “If you’re going to hold closed private hearings you shouldn’t be releasing pieces of them at the same time. But it’s not a criticism that’s going to last very long. All these transcripts are going to be released and some of these witnesses will appear again.”
The Charges and the Battle
As complaints about conduct of the inquiry are likely to persist, especially as it moves toward its public stage, several pro-impeachment voices have expressed hope that the president’s defenders will be forced to address his actions head-on — a task they feel is nearly impossible. But Saul Anuzis, a political consultant and former chairman of Michigan’s Republican Party, who also signed the aforementioned letter opposing impeachment, welcomes a move to this next stage.
“I think Republicans’ argument is stronger when you get to the facts,” he told Hamodia. “To the best of my knowledge nothing that was done is illegal, and the aid was paid out in the window of time provided.”
Mr. Anuzis was asked if the facts of the president’s call pressuring President Zelenskiy to investigate the Bidens and alleged testimony that the White House wanted to withhold nearly $400 million in military aid until the request was met bothered him. “Not at all,” he responded.
“[President Trump] was asking for a legal investigation into a crime that has bogged down our country for two years. The president claims that he was trying to get to the bottom of a crime that presents a real constitutional crisis, and there is no transcript that can prove the opposite. The rest is just people saying that they know what [the president] really meant,” Anuzis said. “We have treaties that obligate cooperation with other countries in legal investigations, and the fact that Biden is a political opponent doesn’t give him immunity.”
William Galston, an expert in governance at the Brookings Institution and a former Clinton administration advisor, had a different view of President Trump’s actions.
“It’s a very significant departure from the rules and norms that have governed presidential behavior in my lifetime,” he told Hamodia. “One credible interpretation is that the president held hostage $400 million for Ukraine to defend itself against Russia, that Congress had authorized and appropriated, to send a message to the Ukrainian government to conduct an inquiry related to his prospects in the 2020 election. I suppose interpretations can differ, but I have to say that turning American foreign policy to serve a president’s electoral convenience is disturbing and shocking.”
Mr. Galston went on to explain potential risks to American interests — namely a need to hold Russian aggression in check — that could have been hurt by using Ukrainian aid as a bargaining chip.
Since investigations picked up speed in late September, the White House has drawn a clear line that it will not cooperate with the investigations either by providing related documents or by allowing staff to testify.
Prof. Bowman said that, in addition to the president’s actions regarding Ukraine amounting to “abuse of power,” he felt that President Trump’s stonewalling of the investigation amounts to a clear case of obstruction of justice, one of three charges that were pending in 1974 against President Nixon.
“Trump is far more guilty of obstruction than Nixon ever was,” he said. “Nixon cooperated slowly and grudgingly and at times misleadingly and was not complete, but he gave up a lot of stuff. At no point did he declare that nobody should cooperate. That is a completely different order of magnitude and much more constitutionally problematic and damaging to the government’s structure. The president has to be accountable to the legislative branch.”
Prof. Bowman said that, given the president’s insistence on his innocence, the White House’s approach was even more inexplicable.
“If Mr. Trump is really upset and wants to represent the full picture, so come on down and tell everybody the truth,” he said. “Instead his response is not to respond to lawful subpoenas.”
But Mr. Shackelford said that, given what he sees as House Democrats’ unfair treatment of the president and a denial of his legal rights, the White House was left with little alternative to its present combative posture.
“You’ve got to fight back and [Democrats] have made that very hard to do,” he said. “Defendants have a right to defend themselves in a court of law, but here you had Congress letting witnesses talk and then leaking out what they wanted. It seems like something from another country. If I had a client in a similar position, I do not think I would be advising him to cooperate.”
Mr. Shackelford also questioned the concept of classifying the president’s actions as abuse of power, another of the charges that President Nixon would have been poised to face had he not resigned.
“Once you use abuse of power, you’re stretching for something that can’t be defined,” he said. “Every president does something that somebody feels was an abuse of their power in some way, but that’s not what the Constitution says we should be using impeachment for. They just don’t like [the president’s] mannerisms or morality … The whole thing is bizarre. Nobody legally serious can say that there’s a high crime or misdemeanor here.”
Fighting the Good Fight?
While it seems highly likely that the Democratic House will approve motions of impeachment against the president, it seems equally unlikely that President Trump will be convicted and removed from office by the Republican-controlled Senate, a move that would require a two-thirds majority.
Despite Mr. Galston’s strong disapproval of President Trump’s actions, he has been a vocal opponent of impeachment proceedings, advising Congress to let their feelings be known through a motion to censure.
“It would have been the more prudent route from the beginning, because I’ve evaluated the chances of the Senate voting to remove as hard to distinguish from zero, since you would need 20 out of 53 Republican Senators to break ranks to approve that,” he said. Mr. Galston said that he also favored censure from “a political standpoint,” adding a note on the close proximity to national elections.
“The most important thing is to put the facts before the American people and let them make their own judgment,” he said. “If you look at the polls, people favor the inquiry but not necessarily a vote to remove.”
Speaking on the eve of the House’s vote, Mr. Galston admitted that his arguments had become “moot.”
“The facts have moved on, and so whatever I think, it is now clear that the Democrats in the House have decided censure is an inadequate response, and it is inevitable that articles of impeachment will be voted on and sent to the Senate,” he said.
Mr. Anuzis said that, even for those perturbed by the president’s actions on Ukraine, using impeachment to upend an election under the circumstances was a perversion of the American system.
“The Democrats don’t like the way [the president] is conducting foreign policy. That’s not an impeachable offense, that’s what we have elections for,” he said. “This is a Soviet-style ploy. They’ve been saying since before [the president] was sworn in that they would start impeachment. The Democrats have no credibility on this one. … Impeachment is for high crimes and misdemeanors. If you don’t like the president, then Congress should be saying, ‘Go to the polls and vote for one of the left-wing crazies that is up for the Democratic nomination.’”
Albeit for different reasons and in different terms than Mr. Anuzis, Mr. Galston argued against claims that the president’s actions made impeachment Congress’ duty, especially as acquittal in the Senate could bolster the White House’s proclamations of innocence.
“Suppose you believe that continuation of Donald Trump’s presidency for another four years would be a clear and present danger to constitutional norms and our country’s institutions. Impeachment is still very unlikely to result in the president’s removal from office, and probably only the American people can decide that. So you have to ask a tough-minded political question about what political responsibility means and take into account the probable or possible effects of what you are pursuing,” he said. “To those who say [impeachment] is a moral obligation, I say that might be your definition of morality, but it’s not mine.”